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The opinion of the court was delivered by
Smith, J.:
A careful review of the evidence in this case leads this court to make the following conclusions:
(1) That in its inception the incorporation of the Inner Belt Railway Company was not effected by the incorporators in good faith, for the purpose of building and operating, or of aiding in building and operating, a service railroad; that the principal motive in obtaining the franchise was so to simulate a railway corporation as to deceive the public and the officers and courts of the state, and thereby to procure the exercise of the power of eminent domain to the advantage of private interests, and in fraud of the rights of individual property holders.
(2) That the Inner Belt Railway Company has had no capital stock subscribed in good faith, and since its incorporation has failed to comply with every requirement of section 1293 of the General Statutes of 1901 ; that it has in fact no capital, no stockholders, no gen eral office or general officers; that it has permitted others to use its name and franchise in procuring the condemnation of private property for private and not public use, and, after the condemnation of such private property, has allowed it to be used for private and •not public purposes; and that the allegations in the petition as to the fraudulent organization and incorporation of the Inner Belt Railway Company and its fraudulent conduct thereafter are true.
It is contended that the state in bringing this action against the Inner Belt Railway Company in its corporate name is estopped from denying the existence of the corporation, and that, for the same reason, the petition states ano cause of action. The de facto existence of the corporation is expressly admitted, and a copy of its charter is attached to the petition. But it is alleged and proven that such charter was procured for an illegal and wrongful purpose, and that the corporation has not since fulfilled any purpose for which it was chartered by the state, and has abused the powers conferred in that practically its sole act as a corporation has been to lend its name to enable private persons wrongfully to devest property owners of their rights through condemnation proceedings. In support of the contention that the state is estopped to deny the corporate existence of the Inner Belt Railway Company the defendants cite, among others, the following cases: The People v. The Rensselaer and Saratoga Railroad Company, 15 Wend. (N. Y.) 113, 30 Am. Dec. 33; The People, ex rel., v. City of Spring Valley, 129 Ill. 169. We think these cases are distinguishable from the case at bar, in that fraud in procuring incorporation was not in issue, although the language of the courts in the decisions overreaching the issue seems to be in point. In People v. Milk Exchange, 133 N. Y. 565, 30 N. E. 850, and in the same case in 145 N. Y. 267, 39 N. E. 1062, 45 Am. St. Rep. 609, 27 L. R. A. 437, which was decided since the cases cited by de fendants, the New York court of appeals held, in an action, against a corporation in its corporate name, that a complaint which stated the fact of incorporation, “but that it was fraudulently and unlawfully incorporated ... in pursuance . . . of an unlawful . . . combination,” stated a cause of action, and the corporation was ousted. There was also in the complaint a charge that the sole business of the corporation had been the unlawful control of prices for milk, it having ostensibly been incorporated for the purpose of buying and selling milk.
In the case of New Orleans Debenture &c. Co. v. Louisiana, 180 U. S. 320, 21 Sup. Ct. 378, 45 L. Ed. 550, which was an action in the nature of quo warranto, brought by the attorney-general of Louisiana in the name of the state against the debenture company to oust it from acting as a corporation on the ground of. the nullity of its organization, it was held:
“For the purpose of procuring a decree enjoining a corporation from acting as such on the ground of the nullity of its organization it is not necessary that the individual corporators or officers of the company be made defendants and process be served upon them as such; but the state by which the corporate authority was granted is the proper party to bring such an action through its proper officer, and it is well brought when brought against the corporation alone.” (Syllabus.)
In the opinion written by Mr. Justice Peckham in the foregoing case the court said:
“The state can therefore treat this de facto corporation as such, for the purpose of calling it into court and asking for a decree enjoining it from acting as a corporation, on the ground of the nullity of the organization; in other words, on the ground that it has no right to be a corporation, and that it is not a corporation de jure. For that purpose it is not necessary that the individuals who were corporators or officers of the company be made defendants and service of process be made upon them.” (Page 328.)
This decision is based upon the following provision of the Louisiana statute, following the provision authorizing the attorney-general to bring the action in the name of the state:
“First, when any person shall usurp, intrude into or unlawfully hold or exercise any public office or franchise within this state; or . . . third, when any association or number of persons shall act within this state as a corporation without being duly incorporated.” (R. S. La. § 2593.)
Our statute is not radically dissimilar. In specifying the grounds for the action it reads:
“Third, when any association or number of persons ’ shall act within this state as a corporation, without ■ being legally incorporated.
“Fourth, when any corporation do or admit acts which amount to a surrender or a forfeiture of their rights and privileges as a corporation, or when any corporation abuses its power or exercises powers not conferred by law.” (Gen. Stat. 1901, § 5149.)
It will be observed that the third subdivision of the Louisiana statute and the third subdivision of our statute are essentially the same, with only a slight change of wording.
We are content to follow the logic of the Debenture and the Milk Exchange cases, supra, rather than the refined technicality of the opposing theory. It seems too much to say that, because an association of persons has procured a charter of incorporation for apt ostensibly lawful purpose, but really for an unlawful purpose, and has thus become a corporation de facto, the state, in an action to deprive such association of its wrongfully acquired power, by calling it into court by its corporate name thereby conclusively admits its legal corporate existence; in other words, that the mere summoning of a corporation into court to answer the charge that it was illegally incorporated effectually estop's the state from having the charge tried and determined. However cunningly devised may be any superstructure which rests upon fraud as its foundation, it can be demolished by the law.
As to the question whether the state is the proper party plaintiff to maintain this action, it is sufficient to say that section 5150 of the General Statutes of 1901 expressly authorizes it, and the former decisions of this court have recognized the procedure.
The petitioner also prayed that the Stewart-Peck Sand Company be enjoined from using the right of way which had been condemned by the Inner Belt Railway Company or using the track constructed by it. This court has no original jurisdiction in injunction, except so far as is necessary to protect and enforce its jurisdiction and decrees, and no such prohibition can be granted in this proceeding in favor of the petitioner and against the sand company. '
It is decreed and adjudged that the incorporation of the Inner Belt Railway Company is null and void for fraud practiced by the incorporators in procuring such incorporation; that its incorporation was illegal; that the corporation is ousted and debarred from exercising any corporate powers; that the officers, directors, stockholders and agents of the corporation, and all other persons acting under the authority thereof, are enjoined and restrained from exercising any power or transacting any business as or for such corporation, or under any supposed power or authority therefrom.
The costs of this action are taxed against the Inner Belt Railway Company.
All the Justices concurring. | [
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Per Curiam:
Action for deceit which has been three times tried. The two former judgments in favor of Barton Brothers were reversed for trial errors (Robbins v. Barton, 50 Kan. 120, 31 Pac. 686; Robbins v. Barton, 9 Kan. App. 558, 58 Pac. 279), and complaint is made of the third judgment rendered in their favor. The point that the evidence does not support the verdict is not good. The proof, direct' and circumstantial, fairly tends to show that Robbins made, statements as to Gorton’s financial condition which were known by him to be untrue; that they were made to procure credit for Gorton from Barton Brothers, and did deceive them; and that Barton Brothers'sold goods to Gorton in reliance upon the statements, and thereby-suffered loss. Robbins complains that the testimony against him is not as “solid and persuasive” on some phases of the case as is necessary to an adverse verdict, but it appears to the court to warrant the construction which the jury and trial court placed upon it, and as the disputed questions of fact have been passed, upon by three juries, and the same result reached by each of them, the third verdict should not be set aside if there is substantial' supporting testimony.
The instructions are not open to the objections that they were inapplicable to the facts involved and did not state the issues in the case. No material error was committed in instructing the jury, and we see nothing in the other rulings complained of which prejudiced the substantial rights of the plaintiff in error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
For many years past C. F. Harder has owned all of a 340-acre tract of land, lying in a compact body, excepting two square forties belonging to his wife. The entire tract has been used as one farm, but no part of it is occupied as a homestead. In 1902 the Kansas & Colorado Pacific Railway Company condemned a right of way for its road across the tract, lying in part upon the land of Harder and in part upon that of his wife. A separate award of damages was made to each of them, and each appealed. In the district court the cases were consolidated by agreement and a settlement was effected by which a lump sum was paid in satisfaction of both claims. A judgment was entered in the case providing, among other things, that the company should construct and maintain at a designated point in its road-bed on the land of Harder a pile-bridge seventy feet in length and should leave a thirty-five foot opening in its fences on each side of such bridge. When the road was built the company put in a private crossing for Harder over its track on his land, but shortly afterward took it up. In 1903 the company condemned a narrow strip of ground parallel to and adjoining its first right of way. As before, damages were separately awárded to Harder and to his wife, and as before each appealed. In the district court the Harders asked that the cases be consolidated, but the request was refused. A trial of Harder’s appeal resulted in a verdict and judgment adopting the award already-made. Harder prosecutes error.
Under various assignments the plaintiff in error complains of the action of the trial court in denying the motion to consolidate the two causes, in ruling out evidence relating to the pile-bridge that had been constructed and to the grade crossing that had been taken out, and in giving instructions with regard to the measure of damages.
In support of the claim of error with respect to the motion to consolidate it is contended that the railroad company was obliged to pay, and the husband and wife together were entitled to receive, a sum equal to whatever diminution in value the appropriation of the additional strip occasioned to the entire tract, of which each owned a part, treated as one property. It may be assumed, that this contention is correct. It does not follow, however, that the refusal to try the two appeals together was error. Consolidations are ordinarily a matter of convenience, concerning which the trial court has a large discretion. A judgment should not be reversed on account of a ruling in such connection unless some actual prejudice is shown. It is not made to appear that there was any difficulty in determining how much of the total depreciation referred to fell upon the part of the land owned by the husband and how much upon that owned by the wife, or in determining how much of it was due to the appropriation of the husband’s land and how much to the appropriation of the wife’s. If such apportionment was practicable — and no reason appears to the contrary — no injury could result to the landowners from the cases being tried separately. If in the present proceeding Harder was denied the right to-prove and to recover for any increased loss he suffered by the taking of a part of his own land, growing out of its use in conjunction with that of his wife, his ground of complaint is not that his appeal was tried alone but that a wrong theory of the measure of damages was adopted. The claim of Harder that his land became less valuable because the railway company took a part of his wife’s land, and that he was entitled to recover damages by reason thereof, was a matter proper to be investigated and decided in the proceeding based upon the appeal from the award made by the commissioners with respect to the tract so taken. If the omission of Harder to join in that appeal had the effect to cut him off from a right which he would otherwise have had to be heard in that proceeding, the right so lost could not be restored by a consolidation of the two cases.
The district court rightly rejected testimony di- ' rected to the question whether the pile-bridge constructed by the railway company conformed to the judgment rendered in the first condemnation proceeding. Any failure in this respect could not be redressed in the present action. So with regard to evidence concerning the taking up of the private crossing over the track already built. Whether the expense of such crossing if it should be replaced would fall upon the railway company or upon the landowner did not affect the question of how far the latter was damaged by the taking of the additional land.
The jury were not told in so many words that they should take into account the fact that the land ' of Harder was used in connection with that of his wife, nor was such an instruction asked. The charge given, however, included this language:
“It is simply the intention of the law that compensation must go hand in hand with the actual loss or injury sustained by the person whose land is taken. In the determination of this question as to what would be full compensation you are not confined to simply awarding the plaintiff the value of the land actually taken for railroad purposes and con sidered only as a separate, independent tract of land, ■but you may -also consider the use to which the land has been appropriated by the plaintiff, and its situation and value with reference to other land of the plaintiff with which it is connected in use — and looking at the land appropriated from that standpoint, and in the light of all the evidence in the cause, you will award the full or fair market value of the land appropriated by the defendant company, with such damages, if any, as may be sustained to another tract by reason of the appropriation of a part for railroad purposes adjacent to right of way, as may be shown by the evidence in the cause.”
In the absence of a request for anything more specific this must be deemed sufficient to cover the ground suggested. The jury had been permitted to view the premises, and to hear evidence covering fully the relation of Harder’s land to that of his wife, as regarded situation and use. They were directed to avail themselves of all the information so obtained — not to disregard any of it.
The verdict allowed the plaintiff only the value of the land actually taken, which was agreed upon. His claims for additional compensation, as shown by an itemized statement accompanying his petition, were hased upon the supposition that the use to which the company would put the newly condemned land would injure him, first, by obstructing the opening in the pile-bridge under the track to which he was entitled by the terms of the first condemnation, thereby interfering with the drainage of his land and with his passing back and forth under the track, and, second, by impeding his passage across the track at a point where the private crossing had previously been constructed. The company in its answer disclaimed all purpose under the second condemnation to acquire any right to obstruct the opening under the pile-bridge by embankments, fences or otherwise, and agreed that such bridge should be maintained in' the future as required by the judgment rendered in the first condemnation proceed ings. The evidence did not compel the conclusion that the plaintiff suffered any damage in respect to either drainage or crossings. He appears to have had a full and fair hearing upon these matters, and not to have been hampered in respect thereto either by the rulings that were made upon the admission of testimony or by the instructions that were given to the jury. The judgment is therefore affirmed.
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Per Curiam:
This was an action to recover a balance alleged to be due for labor and material, in connection with a lease of land, which resulted in a verdict that nothing was due. The terms of the written contract between the parties appear to support the result reached, but, assuming that the contract was ambiguous and incomplete and that oral testimony was admissible to prove what the actual agreement was, that which was received by the trial court tends to show that nothing was due from defendants for the hauling of bundles to the thrashing-, machine or for the other items included in the account. There was sufficient evidence to support the verdict.
The rulings on instructions of which complaint is made have, each been examined, but no prejudicial error is found. A detailed discussion of them is not warranted.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
The insurance company claims that the interest of the building association as mortgagee in the insured property was extinguished, by operation of the law of merger, when it received the conveyance from Blakey; that the insurance company stipulated to protect the building association as mortgagee only; and that when the latter ceased to be a mortgagee its right to indemnity was at an end. The insurance company further claims that it was the duty of the mortgagee, under the mortgage clause, to notify the insurance company of any change in the ownership or increase of hazard which might come to its knowledge; that it did not notify the company of the change in ownership when it received the conveyance from Blakey; and that, at the time of the fire, the building association was owner and bound to make satisfactory proofs of loss, which it did not do.
The primary purpose of the law of merger appears to be the prevention of confusion in titles by extinguishing the smaller one when it is completely involved in a larger estate owned and held by one and the same person. This rule is not designed or permitted to operate, however, to the embarrassment or detriment of the owner or other interested person. (2 Bouv. Law Diet. “Merger”; Donk et al. v. Alexander et al., 117 Ill. 330, 7 N. E. 672; Palmer v. Burnside, 1 Woods [U. S. C. C.], 179, 18 Fed. Cas. p. 1022.) Where a mortgagee becomes the owner of the legal title, and no reason exists for the contrary, the mortgage becomes merged in the greater title. In such a. case there is no reason to keep the two interests separate, and the merger eliminates the confusion and complications which would otherwise result; but, if there are junior mortgages on the land, it will be necessary to keep the titles separate, so as to protect the mortgagee from such inferior liens. As between the mortgagor and mortgagee a merger would be proper, but not as between the holders of the different mortgage liens.
Instances might be multiplied where merger would be unobjectionable as to some parties and injurious to others. It is, therefore, generally held that whether a merger results or not, when a mortgagee acquires the legal title to the real estate upon which he holds the mortgage, depends upon the intention of the mort gagee, actual or presumed. If no intention appears, it will be presumed to be such as will best conserve his interests. If it appears wholly indifferent, a merger will be assumed. (2 Pom. Eq. Juris., 3d ed., § 788; 20 A. & E. Encycl. of L. 590, 1064; 1 Jones, Mort., 5th ed., §§ 848, 870; Freeman v. Paul, 3 Me. 261, 14 Am. Dec. 237; Stantons v. Thompson, 49 N. H. 272; Goodwin v. Keney, 47 Conn. 486; Edgerton et al. v. Young et al., 43 Ill. 464; Cole v. Beale, 89 Ill. App. 426; Security T. & Tr. Co. v. Schlemder, 190 Ill. 609, 60 N. E. 854; Smith et al. v. Roberts et al., 91 N. Y. 470; Title Guarantee Co. v. Wrenn, 35 Ore. 62, 56 Pac. 271, 76 Am. St. Rep. 454; James v. Morey, 2 Cow. [N. Y.] 246, 14 Am. Dec. 475.) It has also been held that this intention need not be manifested or exercised at any particular time. The time when the merger takes place, if at all, is unimportant, unless it affects some intervening right injuriously. The intent of the party interested need not be declared nor exist when the titles become united, but may be formed or declared when it best suits the interest of the owner thereof, if no injury result to others thereby. (Goodwin v. Keney, 47 Conn. 486; James v. Morey, 2 Cow. [N. Y.] 246, 14 Am. Dec. 475; Forbes v. Moffatt, 18 Ves. 384; Stantons v. Thompson, 49 N. H. 272.)
Applying these principles to this case, we find that the building association made a loan to Gates which was secured in part by the insurance policy in question. To avoid foreclosure of the mortgage given to secure the loan the association accepted a deed to the property. After this transaction there would be no occasion, as between the grantor and grantee in the deed and Gates and the association, to consider the mortgage separate from the title conveyed by the deed, but as between the association and the insurance company it was highly important that the two interests be kept separate; the security of the association depended upon such separation. The liability of the insurance company is in no way affected thereby; it remains the same as if the mortgagor had retained the title to the land. The deed was taken by the association simply as security for the debt of the mortgagor, and this was one step toward a realization thereof.
In cities the buildings usually constitute the chief value of the property, and insurance thereon is an important element of security. In this case the insurance company, in consideration of the premium received, agreed to indemnify the association against loss to the buiidings by fire. When this agreement was made the association was merely the holder of a lien on the land; after the conveyance it held the entire property, but the entire title was held as security merely, the same as the mortgage lien had been. It was a change in form only, and not in substance. This was the intention of the association at all times prior to, and at the time of, the fire.
We do not attach much importance to "the manner in which the association kept an account of this loan on its books. It appears, however, that the loan was at all times charged against this land. So far as the manner of bookkeeping is evidence of anything, it shows that this land was held as security for the debt due from Gates.
As to the claim that the loan association was bound by the mortgage clause to inform the insurance company of all changes in the ownership of the property, it'is sufficient to say that in this state it has been held that the acquisition of the legal title to insured property by the mortgagee is not such a change of ownership as is contemplated by the provisions of this mortgage clause (Dodge v. Hamburg-Bremen Fire Ins. Co., 4 Kan. App. 415, 46 Pac. 25; Insurance Co. v. Ward, 50 Kan. 346, 31 Pac. 1079; Insurance Co. v. Boardman, 58 Kan. 339, 49 Pac. 92), and, therefore, the omission is not material.
As to the failure to make satisfactory proofs of loss, this was waived by the acts of the insurance company. The insurance company sent a special agent to examine and adjust the loss. This agent examined the property, made estimates of the damage, and agreed with the loan association upon the amount of the loss. This amounts to a waiver. (Insurance Co. v. Francis, 66 Kan, 751, 72 Pac. 1098.) The loan association, however, notwithstanding this waiver, made and furnished proofs of loss containing substantially all that could be required.
Finally, the insurance company contends that it has lost by the action of the . loan association the right of subrogation, as stipulated in the mortgage clause. Wé do not so understand the situation. At the time of the fire, and for more than seventy days thereafter, and long after the insurance company was fully advised of the condition of the property, the association held the legal title to the premises, and the insurance company could at any time have paid the debt due the associa- ■ tion and received the property. No adequate reason has been shown why this loss should not be paid.
The judgment of the district court is reversed, with directions to proceed in accordance with the views herein expressed.
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The opinion of the court was delivered by
Graves, J.:
We do not think the information fatally defective. The averment therein concerning the affidavit is equivalent to a statement that no affidavit whatever was made by the applicant. This is sufficient. The whole embraces all the parts.
The contention that the statute' requiring the applicant to make an affidavit and sign his name thereto in ink is merely directory has already been denied by this court in the case of The State v. Davis, 44 Kan. 60, 24 Pac. 73. In that case Commissioner Strang said:
“We also think that the very object of the provisions of the statute in forbidding the pharmacist who is permitted to sell for medical purposes from so selling until the applicant for the liquor has subscribed with ink and sworn to an affidavit properly filled out under the statute is to prevent the sale and use of such liquor as a beverage. The pharmacist is bound to know all the provisions of the law. If the applicant honestly wants intoxicating liquor for medical use, he will not hesitate to make the necessary affidavit required by the law. But he may well hesitate about making such affidavit when he wants the liquor for use as a beverage, because the statute declares that if he makes a false affidavit he shall be guilty of perjury. It is the fear of prosecution for perjury that causes the shuffling in connection with the making of the affidavit, and which results in incomplete affidavits such as were made in this case. The whole force and effect of the law may rest upon this affidavit; for if it may be evaded, as in this case, by simply signing it with a pencil and not swearing to it, then any person, by simply saying in writing that he wants a certain quantity of liquor, and that he wants it for medical purposes, can get it; and it is well suggested in the state’s brief that if that could be done it would become very fashionable to drink for medical purposes. We think all the provisions of the statute relating to the affidavit required of the applicant before a sale of intoxicating liquor can be made to him are material and vital parts of a law to prevent the sale and use of intoxicating liquor as a beverage, and that sales by a pharmacist without having observed them subjects the said pharmacist to punishment by fine and imprisonment.” (Page 63.)
The evident object of these requirements of the statute furnish an unmistakable guide for its interpretation. Manifestly it was intended that an oath with all its solemnities and formalities should be administered to every applicant as a check upon sales of' liquor to persons desiring to use it as a beverage. The law provides that these applications shall be filed in the office of the probate judge, where they are open to public inspection and examination. They might become useful as evidence in prosecutions for violations of the law. It is important, therefore, that the name of the purchaser should not be open to erasure or change on account of use in examination, lapse of time, or otherwise. The provision that the name shall be signed in ink subserves this purpose.
The instruction given wherein the expression “preponderance of the evidence” occurs was of course erroneous, but the court took up separately each count of the information submitted to the jury; and stated fully and clearly all the elements of the offenses charged therein, and that each and all of such elements must be established beyond all reasonable doubt before the defendant could be convicted. This rendered the expression complained of harmless.
The instruction requested by the defendant as to the necessity of a criminal intent was sufficiently covered by the instruction given by the court that the act of the defendant must have been done knowingly and wilfully before he could bé convicted. We do not decide that it would have been error if these words had been omitted from the charge, but, since they were uséd, the defendant has no reason to complain.
These are the principal questions presented by the defendant. Some others are suggested, but they are unimportant, and we think it unnecessary to discuss them. We are unable to find any error in the record. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
The information in this case charged Martin Peters, N. C. Binford and the appellant with maintaining a common nuisance in violation of the prohibitory liquor law. Peters and Binford are fugitives from justice, having avoided arrest. From a conviction appellant appeals and assigns several errors, but relies chiefly upon two: The refusal of the Court to grant him a continuance, and the denying of the motion for a new trial on the ground that the verdict and judgment are not sustained by the evidence.
The application for a continuance recited that the testimony of Peters, Binford and Emmet M. Demoss, a brother of appellant, was necessary to establish his defense; that he was not the proprietor or owner of, or in any manner connected with, the business; that his brother had also fled from the state for fear of arrest for assisting in maintaining the same nuisance; and he asked for time, to take the depositions of these witnesses. It also appeared from the affidavit for a continuance that appellant had been informed that Peters was located in Glasgow, Mo.; that Binford would probably never return to the state, but was preparing to take up his residence in New York; and that Emmet M. Demoss was arranging to locate in Kansas City, Mo.
Three months had passed since appellant’s arrest. No diligence was shown in an effort to procure the testimony of the absent witnesses, except that they were absent from the state and that he had only a few days prior thereto learned where one of them was. No probability was shown that if a continuance were granted the testimony could be obtained, save the statement of his belief to that effect. As a part of appellant’s affidavit for a continuance there was attached a written statement of what each of the absent witnesses would swear to in case they could be located and induced to halt for a length of time sufficient to arrange for and take their depositions. From this statement it appeared they would swear that they were associated together and conducted the business at the place mentioned in the information,-but that appellant had nothing to do with it. While it is not within our province to weigh the probability of these absent witnesses thus testifying to their own guilt, we think the application was properly denied.
The evidence connecting appellant with the business was circumstantial, but sufficient in our opinion to sustain the verdict of the jury. He unlocked the door and invited customers to come inside. He had the keys to the room and surrendered them to the officers when the place was raided. He claimed to own the cash register and water-filter, and carried them away. When the testimony was taken he designated what kind of liquor was in the particular boxes and bottles. He tried to employ the assistant attorney-general, Mikesell, to abandon the temperance people and accept a retainer and enter “our employ.” He exercised acts of ownership over the place and the stock of liquors, and tried to negotiate with the officers to have everything left as it was pending a settlement of the cases which he endeavored to make. These circumstances were sufficient to overcome the denial of appellant and the force of negative testimony offered in his behalf of several witnesses who never saw him behind the bar or in the act of making a sale. He was charged with keeping and maintaining a nuisance, and proof of actual sales was not necessary. The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam,:
This was a suit to enjoin the performance of a contract to pave a part of 'a street in the city of Hutchinson. The contract is similar in its provisions to the one involved in Bunker v. Hutchinson, ante, p. 651. That case was disposed of on a demurrer to plaintiff’s petition, while in this case a temporary injunction was refused after a hearing. The decision in the Bunker case fairly covers the legal propositions in this case, and nothing is found in the testimony which takes it out of the rule of that decision.
The judgment is therefore affirmed. | [
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Per Curiam:
This suit was brought to cancel an oil- and-gas lease on the ground of an alleged forfeiture. The case was tried on an agreed statement of facts, and the court found and rendered judgment for the defendant. The plaintiff brings the case here for review on a transcript of the record, to which is attached a copy of the agreed statement of facts. The agreed statement was not made a part of the record by a bill of exceptions. The only contention of the plaintiff is that the court erred in not finding the facts for him. Defendant contends here that this court cannot examine the agreed statement upon which the trial court found for defendant because it was not made a part of the record, and is therefore not before this court.
An agreed statement of facts is only the evidence in the cause, and is not a part of the record unless made so by a bill of exceptions. (Patee v. Parkinson, 18 Kan. 465; Myers v. Wheelock, 60 Kan. 747, 57 Pac. 956; Woolverton v. Johnson, 69 Kan. 708, 77 Pac. 559.)
The plaintiff not having preserved the agreed statement of facts in the record, it is not before us for our consideration.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
Three assignments of error are based upon the exclusion of evidence offered by the plaintiff: (1) The refusal to allow in evidence a certain model of a patented device for safe-guarding saws like the one used; (2) excluding testimony that it was practicable safely to guard the rip-saw; (3) excluding testimony as to the danger of sawing a board with a “seasoned crack.”
Assuming that it was practicable safely to guard the rip-saw in question, and that the exhibition of the model and the excluded testimony would have tended to establish that fact, and further that the excluded testimony would have established the fact that it was dangerous to saw a board with a “seasoned crack”— assuming these facts as admitted, do they militate against the verdict of the jury? We do not think they do, and if they do not they are immaterial. The special findings of the jury govern the general verdict, and if this evidence had been admitted it evidently could not have influenced or changed such findings. The special findings of fact are as follow:
“(1) Ques. Did plaintiff know there was a crack in the plank he was sawing? Ans. Yes.
“ (2) Q. Did plaintiff allow the rip-saw to run into the crack? A. Yes.
“(3_) Q. Could the accident have been avoided had plaintiff not allowed the saw to run in the crack? A. Yes.
“(4) Q. Was plaintiff pushing hard on the board at the time of the accident, and did he, while pushing the board hard, allow the saw to run into the crack of the board? A. Yes.
“ (5) Q. Did the plank split at the crack while plaintiff was pushing it? A. Yes.
.“(6) Q. Was plaintiff guilty of negligence which caused or contributed to his injury? A. Yes.
“ (7) Q. Did plaintiff know of the danger of allowing the saw to run into the crack? A. Yes.”
Let us assume that under the provisions of the statute known as the factory act (Laws 1903, ch. 356) it was practicable safely to guard, this saw, and that no attempt had been made by the defendants to comply with the requirement of the statute. This would establish beyond controversy that the defendants were guilty of negligence, and would render them liable for the resulting damages unless they pleaded some sufficient defense thereto. The plaintiff concedes that the defense of contributory negligence may be interposed notwithstanding the factory act, but he claims that the exclusion of the evidence hereinbefore noticed, the refusal of instructions requested by him, and the giving of instructions to which he excepted, led or impelled the jury to make the findings to his prejudice.
The court instructed the jury apparently on the theory that the factory act in no way affects the law of assumed risk by an employee. It is unnecessary to decide that question in this case. It was not decided or considered in Creamery Co. v. Daniels, 72 Kan. 418, 83 Pac. 986. There substantially the same instruction was given, but, the plaintiff having recovered judgment, the defendant prosecuted error and no attack was made upon the instruction in this court. However erroneous the instructions of the court at the trial of this case may have been on thé question of assumed risk, we do not see that the special findings of fact, could have been affected thereby; and, as these special findings control the general verdict and compel the affirmation of the judgment thereon, it would be fruitless, as a new trial does not result, to pursue the question.
That the violation of a duty expressly imposed by a statute upon an owner or operator of machinery dangerous to employees or to the public is negligence which prima fade imposes liability for damages resulting therefrom is well-settled law. (21 A. & E. Encycl. of L. 478.) Also, that negligence on the part of the party seeking to recover damages which so far contributes to the injury that it may be said the injury would not have occurred but for such contributory cause defeats a recovery is equally well settled. (K. C. Ft. S. & G. Rld. Co. v. McHenry, 24 Kan. 501; 7 A. & E. Encycl. of L. 371, et seq.) The special findings of fact are, in effect, that the plaintiff saw and knew of the danger and could have avoided it, and, in not avoiding it, was guilty of negligence which caused or contributed to his injury. No motion was made to set aside these special findings, or any one of them. We have, however, examined the evidence and think the facts found are within the issues and that each of them is supported by some evidence.
The minority of the plaintiff as bearing upon the question of his contributory negligence is also removed by the findings. Minors of more tender years than the plaintiff have been barred from recovering for injuries received where they knew of the danger and negligently incurred the risk. (Railway Co. v. Laughlin, ante, p. 567, and cases there cited.) Indeed it is difficult to see how a man of twenty could appreciate or avoid danger like that to which the plaintiff was exposed any better than a lad of eighteen years. Besides, the court, in two instructions called the attention of the jury to the question of age to be considered in determining whether the plaintiff was guilty of contributory negligence. All of the instructions should be read together, and, omitting those referring to assumed risk, we find no error therein. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The defendants were each convicted of unlawful sales of intoxicating liquors, and as all the convictions rest upon similar testimony, and like rulings and exceptions were made in each case, all the cases were submitted together, and may be disposed of by a single, consideration.
The first contention is that the trial court erred in overruling a challenge to the array of jurors and denying to the defendants a trial by a jury drawn from the jury-box. The defendants were tried at the November, 1905, term of the court. In the early part of that term there was a challenge to the array of regular jurors in attendance for the term, and the court upon consideration of the challenge determined that the lists of jurors furnished by the township trustees and mayors of the cities of the county, and the names taken from the lists and deposited in the jury-box, had been so returned and ’deposited as to vitiate any and all panels drawn from that box. The court, having determined that there was no legal panel of jurors, found that the attendance of ■jurors for the term was necessary for the transaction of the business of the court, and, upon an order of the court, the judge selected thirty-seven qualified jurors to serve as regular jurors for the November term of the court. Later in the term, and when jurors so selected were called for the trial of defendants, the latter interposed a challenge to the validity of the panel, which was overruled, and they now complain because the court refused them a trial by a jury drawn from the jury-box.
The jurors were selected in substantial compliance ■with the governing statutes. It is provided:
“That whenever it shall be made to appear to the court that the township trustees and mayors of cities, as provided for in the act to which this is an amendment, have failed to make the lists from the assessment rolls of the previous year, or that from any other cause the lists furnished by them to the county clerk or the names taken therefrom and deposited in the jury-box have been so returned or deposited as to vitiate a panel ■drawn therefrom, it shall be the duty of the judge of ¡such court to forthwith ""select a sufficient number of jurors for the term, and cause a venire to issue for the same, naming the jurors so selected therein.” (Laws 1886, ch. 117, § 1; Gen. Stat. 1901, § 3822.)
Other sections of that act provide for the furnishing of new lists of persons to serve as jurors during subsequent terms for the ensuing year. (Laws 1886, ch. 117, §§ 2-4; Gen. Stat. 1901, §§ 3823-3825.) It is contended, however, that these provisions are not now in force, but were repealed by a later act. (Laws 1901, ch. 236; Gen. Stat. 1901, § 3816.) There was no express repeal of the earlier act, and no reason has been given why the later act should be regarded as inconsistent with the earlier one and as an implied repeal of it. While both acts relate to the general subject of selecting jurors, they provide for different contingencies, and there is ample scope for the operation of each. The act of 1901, as will be observed, provides for completing a panel to try a particular cause, while the act of 1886 provides for the selection of jurors for the term. One provides for filling up an incomplete panel, and the other provides an entire panel as a substitute for one vitiated because of the error or misconduct of the local officers who furnished the lists of names for deposit'in the jury-box. The cited case of The State v. Edwards, 64 Kan. 455, 67 Pac. 834, related to the filling out of an existing panel and has no application to a situation where the court finds that the steps taken in placing names in a jury-box are such as entirely to vitiate the panel.
It is further said that the court should have quashed the panel in these cases because no jurors were chosen by the judge from the .cities of Winfield or Arkansas City. This is substantially the same objection which was made and held to be insufficient to vitiate a panel in The State v. Frazier, 54 Kan. 719, 39 Pac. 819. It does not appear how it happened that these cities were overlooked when the selection of jurors was made by the judge, nor is there anything to show that the omis sion was arbitrary or intentional. It does not appear that a fair jury was not obtained, nor that the defendants suffered any prejudice because jurors were not selected from every township and city in the county. The Frazier case was sufficient authority for overruling the challenge to the array.
There is complaint in each case that the court received in evidence a certain plea in bar which was filed by defendant in another case in which he pleaded guilty to the charge of unlawfully maintaining a place where intoxicating liquors were kept for use and sale as a beverage. That place, it appears, was the same one in which the sales involved herein were alleged to have been made. The appellants treat this as a confession, and insist that the preliminary showing necessary to the introduction of a confession was hot made. It was not introduced, however, as a confession that the defendant was guilty of an offense charged in this case, nor was it so treated by the court. It was only the admission of the incidental fact that he had maintained a club-house and a nuisance about the time of the unlawful sales in question; the same place in which the alleged sales were made. The state had averred and was endeavoring to prove that the unlawful sales charged against defendant were made at a particular place. An admission by. the defendant that he had been conducting such unlawful business at that place at about that time was admissible as tending, in some degree, to prove the unlawful sales. An oral admission by the defendant to a neighbor that he was carrying on the unlawful business near the time of the unlawful sales would have been admitted probably without question, and the fact that the admission was reduced to writing does not change its character as proof or weaken its force. The court in its instructions carefully limited the application of the testimony, leaving no ground for complaint.
As the informations were sworn to positively, and no question of jurisdiction arises, it is not now material what particular offenses were in the mind of the prosecutor when he verified them.
The charges of the court, although criticized, appear to have fairly submitted the issues in the cases to the jury, and no error is seen in any of the rulings on instructions. The judgments are affirmed.
All the Justices concurring. | [
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Deer, J.:
This is a direct appeal by the defendant, Ramon Dantzler, from the denial of his application for probation following a plea of guilty to one count of conspiracy to possess cocaine, a class E felony. K.S.A. 21-3302; K.S.A. 65-4127a.
Dantzler was sentenced to one to two years of incarceration; probation was denied. Pursuant to K.S.A. 1986 Supp. 21-4606a, which provides for a presumption of probation for a first time felony offender convicted of a class E felony, Dantzler filed a motion for reconsideration. The motion was denied. In overcoming the presumption of probation, the district court noted the extent of the harm caused by Dantzler’s criminal conduct and that he intended that his criminal conduct would cause or threaten serious harm. K.S.A. 21-4606(2)(b) and (c).
Dantzler’s appellate brief was filed on January 14, 1987. On January 16,1987, the Kansas Supreme Court affirmed its holding in State v. Haines, 238 Kan. 478, Syl. ¶ 2, 712 P.2d 1211, cert. denied 479 U.S. 837, 93 L. Ed. 2d79 (1986), that" ‘[u]nderK.S.A. [1986 Supp.] 22-3602(a) there is no direct appeal of a denial of probation after a plea of guilty or nolo contendere.’ ” State v. Hamilton, 240 Kan. 539, 540, 731 P.2d 865 (1987).
In Haines, the court said:
“By pleading guilty to the charges against him, appellant Haines falls squarely within [K.S.A. 1986 Supp. 22-3602(a)] and has no right of direct appeal of a denial of probation; appellant’s only remedy to challenge his sentence is through a K.S.A. 60-1507 motion. It is a cardinal rule of statutory construction that a clear, unambiguous, constitutional statute is not subject to judicial construction. K.S.A. 22-3602(a) meets that test.
“Appellate review of trial court proceedings is not a fundamental right and must have its genesis in either constitution or statute. The constitution has no provision creating appellate jurisdiction and the foregoing statute clearly denies a direct appeal. Thus, we do not have jurisdiction of this appeal. Any statements in State v. Yost, 232 Kan 370, 654 P.2d 458 (1982), or State v. Green, 233 Kan. 1007, 666 P.2d 716 (1983), inconsistent with this opinion are overruled.” 238 Kan. at 479.
Dantzler appeals only the denial of probation. The appeal is dismissed. | [
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Larson, J:
Donald Massey appeals from summary judgment granted in favor of Meade County Attorney Joe Shepack, Meade County Sheriff Michael E. Cox, and the Board of County Commissioners of Meade County in his action for wrongful detention and violation of his civil rights.
On February 11, 1985, Sheriff Cox arrested and held Massey for burglary and theft of valium from a drugstore in Meade, Kansas, after Massey confessed to the crime.
On February 13, 1985, Massey was charged with burglary and theft in a criminal complaint filed by Shepack. A summons was issued and Massey, who was in custody, was brought before a district magistrate judge, where counsel was appointed and Massey was ordered held in the Meade County Jail in lieu of a $25,000 bond.
On February 25, 1985, Massey filed a writ of habeas corpus. The following day, a district judge ordered Massey released because he had, in the judge’s opinion, been illegally restrained by Sheriff Cox between February 13, 1985, and February 26, 1985, without the “State of Kansas presenting a signed affidavit, testimony or other evidence in order that said Magistrate could make an independent finding of probable cause prior to the issuance of a warrant or a summons.”
Massey was recharged, probable cause was properly determined, and he eventually pled guilty to burglary of the drugstore.
On April 7, 1986, Massey filed this action against Cox, She-pack, and the County Commissioners alleging unlawful deten tion, deprivation of his constitutional rights to life, liberty, or property without due process of law, and violation of his right to equal protection under the United States Constitution.
After depositions of Cox, Shepack, Massey, and Herman Dungan, the Meade County Undersheriff, had been taken, motions for summary judgment were filed by all defendants. On December 31,1986, the district court construed Massey’s petition to allege a civil rights violation under 42 U.S.C. § 1981 et seq. (1982), but concluded the petition was in fact predicated on the theory of false arrest. Because K.S.A. 60-514(2) provided a one-year period of limitations and the civil rights claims were held to be analogous to false imprisonment, the court ruled the action was time barred. The court’s ruling did not consider the individual liability of the county attorney, the sheriff, or the board of the county commissioners.
On January 12, 1987, Massey filed a motion to set aside the court’s findings of fact, conclusions of law, and judgment. The defendants requested rulings on their denials of individual liability.
In a supplemental journal entry, the court found that Shepack was acting as county attorney and had absolute immunity from civil liability; that uncontroverted facts disclosed no genuine material issue as to the good faith of Sheriff Cox, who was therefore not liable; and that there was no basis for the liability of the county commissioners because the facts did not disclose a county policy or custom which displayed disregard for civil rights protected by 42 U.S.C. § 1983 (1982).
On April 7, 1987, the district court denied Massey’s motion for reconsideration. Massey appeals.
The parties on appeal raise four issues: (1) Whether a civil rights claim under 42 U.S.C. § 1983 alleging false imprisonment is barred by a one-year statute of limitations pursuant to K.S.A. 60-514(2), (2) whether any genuine material issue of fact remains as to Sheriff Cox’s defense of good faith, (3) whether the county attorney has absolute immunity from civil liability, and (4) whether the county commissioners can be held vicariously liable.
Massey, in his petition, alleges “wrongful imprisonment and confinement,” “unlawful custody and imprisonment,” and that he was “deprived of life, liberty, or property without the process of law,” but in no place specifically states that a violation of 42 U.S.C. § 1983 occurred. The court and the parties have treated this matter as alleging a civil rights violation and based upon Kansas’ liberal rules of notice pleading (K.S.A. 60-102), we hold Massey adequately pled a violation of civil rights under § 1983, even though the better practice is to strictly plead such a violation. Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507, 514, 646 P.2d 1078 (1982), cert. denied 459 U.S. 1103 (1983).
Is a civil rights claim under 42 U.S.C. § 1983 alleging false imprisonment barred by a one-year statute of limitations pursuant to K.S.A. 60-514(2)?
The propriety of a state court considering and enforcing federal civil rights statutes has been examined by the Kansas Supreme Court:
“In Martinez v. California, 444 U.S. 277, 62 L. Ed. 2d 481, 100 S. Ct. 553 (1980), the court held actions under 42 U.S.C. § 1983 may be brought in state courts. Similarly, in Maine v. Thiboutot, 448 U.S. 1, 65 L. Ed. 2d 555, 100 S. Ct. 2502 (1980), the court applied § 1988 to a civil rights action brought in state court. Thus, it is apparent federal civil rights statutes are enforceable by state courts.” Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. at 509.
Our first consideration must be to determine the correct statute of limitations for a 42 U.S.C. § 1983 claim in Kansas.
The applicable period of limitations for civil rights actions has been historically troublesome. See Sullivan v. LaMunyon, 572 F. Supp. 753 (D. Kan. 1983), where Judge Theis presents a history of the problem, and Miller v. City of Overland Park, 231 Kan. 557, 646 P.2d 1114 (1982), where Justice Holmes recognized there was no mandated statute of limitations and that state law was deemed to be determinative. In Miller, based upon facts supporting a cause of action for libel, slander, assault, battery, malicious prosecution, or false imprisonment, the statute of limitations was deemed to be one year pursuant to K.S.A. 60-514.
The United States Supreme Court has now spoken on the subject. Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985), held that federal rather than state law governs the characterization of a § 1983 claim for statute of limitations purposes. However, the length of the limitations period and related questions of tolling and application are governed by state law. In Garcia, 42 U.S.C. § 1988 (1982) was construed as a directive to select in each state the most appropriate statute of limitations for all § 1983 claims. 471 U.S. at 275. Claims under § 1983 were best characterized as personal injury actions for statute of limitations purposes. 471 U.S. at 279. The Garcia court affirmed the Tenth Circuit Court of Appeals’ application of the 3-year New Mexico statute of limitations to the plaintiff s § 1983 claim. Garcia v. Wilson, 731 F.2d 613 (10th Cir. 1984).
K.S.A. 1987 Supp. 60-513(a)(4) specifies a two-year period of limitations for “[a]n action for injury to the rights of another, not arising on contract, and not herein enumerated.” Hamilton v. City of Overland Park, Kan., 730 F.2d 613 (10th Cir. 1984), decided the same day as the Tenth Circuit Court of Appeals’ decision in Garcia, determined 60-513(a)(4) was the applicable statute of limitations for § 1983 claims in Kansas. The rationale of the United States Supreme Court in affirming the Tenth Circuit Court of Appeals in Garcia establishes the continuing validity of Hamilton and reinforces the imposition of a two-year statute of limitations on Kansas § 1983 claims.
While the district court may have been incorrect in ruling a one-year period of limitation applies to a claim under § 1983, we affirm the result reached by the district court but base our decision on different grounds.
The United States Supreme Court, in Parratt v. Taylor, 451 U.S. 527, 543-44, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), rev’d on other grounds 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986), held that when a state provides an adequate remedy for a negligent deprivation of property, that remedy itself constitutes the due process required by the Fourteenth Amendment and a civil rights claim does not lie.
In Alvarado v. City of Dodge City, 238 Kan. 48, 55, 708 P.2d 174 (1985), a suit wherein false imprisonment, assault and battery, defamation, and violation of civil rights was alleged, Justice Prager stated:
“[T]he Kansas tort actions for false imprisonment, battery, and defamation provide an adequate postdeprivation remedy sufficient to satisfy the requirements of due process under the Fourteenth Amendment. Clearly in this case, any deprivation of'a liberty interest of the plaintiff resulted from a random and unauthorized act by an off-duty police officer and there is no way that the State could have provided a meaningful predeprivation hearing. Hence, due process can be satisfied through a meaningful postdeprivation hearing.”
Kansas, like Minnesota in Hanson v. Larkin, 605 F. Supp. 1020 (D. Minn. 1985), concludes that when state law provides an adequate remedy by a cause of action for false arrest the plaintiff has no § 1983 claim.
A distinction seems to have been raised in some cases between the involvement of a “liberty” as opposed to a “property” interest. The Kansas Supreme Court did not in Alvarado attempt to make such a distinction, nor do we herein. We hold, as did the court in Alvarado, that there are adequate state remedies for false arrest which preclude the application of § 1983 rights to the facts alleged in this appeal.
The issue was not directly raised in Miller v. City of Overland Park, but the Kansas Supreme Court, in an action brought to recover damages for false arrest, stated there may be no basis for a due process civil rights action under § 1983 when an adequate remedy is provided by state law. The wording in Miller clearly supports our holding herein. 231 Kan. at 562-63.
Applying Parratt, Alvarado, and Miller to the facts here, it is clear that Massey has no civil rights claim. His remedy was to bring an action for false imprisonment. Because he failed to bring such an action within one year as required by K.S.A. 60-514(2) his remedy is time barred.
The claim of Massey is further fatally flawed as to each of the named defendants for the following reasons:
County Attorney Joe Shepack
The United States Supreme Court, in Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976), held a public prosecutor is absolutely immune from liability under the Federal Civil Rights Act for any actions that he or she takes in prosecuting a criminal case, regardless of the prosecutor’s motive or use of tactics. Prosecutorial immunity has long been recognized in Kansas. Smith v. Parman, 101 Kan. 115, 165 Pac. 663 (1917). Smith was cited with approval in Imbler. More recently, in Knight v. Neodesha Police Dept., 5 Kan. App. 2d 472, Syl. ¶ 6, 620 P.2d 837 (1980), the Court of Appeals stated: “The attorney general and county attorney have absolute immunity for their conduct in investigations for potential prosecution. This immunity applies to the decision not to act as well as the decision to file charges.”
County Attorney Shepack was acting as a public prosecutor and his immunity is absolute, which requires the granting of summary judgment on his behalf.
Sheriff Michael E. Cox
Massey, in his deposition, clearly admitted that Cox, at all times, acted in good faith. It is further stated in the record that Cox followed the advice of the Meade County Attorney and acted in compliance with existing court orders of the Meade County Magistrate Judge. The United States Supreme Court in Pierson v. Ray, 386 U.S. 547, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967), held a defense of good faith while acting with probable cause extends to police officers in an action for damages under § 1983.
Massey contends a jury must decide the issue of good faith. The good faith defense has been analyzed in 61 Annot., A.L.R. Fed. 7, 13-14:
“[A] number of courts have subscribed to the general view that the defense consists not only of a subjective component that the official acted without malice or improper intentions but also an objective component to the extent that the belief of the official in the actions taken, or the actual execution of these actions, must be reasonable. Of course, the necessary implication of this view is that good-faith standing alone is not an adequate defense by a law enforcement official to a damage claim for deprivation of rights under 42 USCS § 1983. Thus, the good-faith defense, has, in the facts and circumstances presented in various cases, been referred to as the defense of good faith and probable cause, the good faith and reasonable belief defense, the defense of reasonable good faith, as well as the qualified good-faith immunity of law enforcement officials.”
Whether the issue of good faith must be tried before the jury is also analyzed in this same annotation:
“It has also been held that summary judgment may be rendered in favor of a law enforcement official if pleadings and affidavits show that there is no genuine issue as to the good-faith defense in a 42 USCS § 1983 damage action for deprivation of constitutional rights. Thus, although indicating a hesitancy to grant summary judgment motions with regard to the dismissal of a 42 USCS § 1983 damage action against a law enforcement official claiming entitlement to a good-faith defense, courts have nevertheless pointed out that affidavits, depositions, and even the pleadings themselves, may be utilized in successfully establishing such a defense on a motion for summary judgment.” 61 A.L.R. Fed. at 15-16.
The Kansas Court of Appeals, in Alvarado v. City of Dodge City, 10 Kan. App. 2d 363, Syl. ¶ 8, 702 P.2d 935, aff'd in part, revd in part 238 Kan. 48, 708 P.2d 174 (1985), held: “A police officer is entitled to good faith or qualified immunity for warrantless arrest if he had probable cause.”
Cox’s conduct in this action is not in dispute. Massey made no negative showing of bad faith, while Cox’s affirmative showing of good faith was clearly established. Irrespective of the statute of limitations holding herein, summary judgment in Cox’s favor is proper.
Board of County Commissioners
There was absolutely no testimony that the Board of County Commissioners of Meade County had any involvement whatsoever in the within facts. Our Kansas Supreme Court in Alvarado 238 Kan. 48, approved the Court of Appeals’ holding that a local government cannot be held liable for civil rights violations of its agents under a respondeat superior theory. Local governments may be liable only when execution of a government policy or custom inflicts the injury. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690-91, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). There is no official policy of the Board of County Commissioners which caused any detriment to Massey and the granting of summary judgment in its favor is expressly approved.
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Six, J.:
Plaintiff appellants, Norman and Rebecca Knight (the Knights), appeal the trial court’s decision sustaining appellee Douglas B. Myers’ motion for summary judgment. The trial court held plaintiffs’ malpractice claims against attorney Myers were barred by the statute of limitations. This court finds no error and affirms.
The issues are: (1) When the Knights’ alleged action for legal malpractice accrued; and (2) whether the trial court erred in granting summary judgment for defendant Myers.
In July 1980, the Austin Pool Company (Austin) installed a swimming pool in the back yard of appellants, Norman and Rebecca Knight. Austin ran a discharge hose from the pool onto property owned by Donald and Lucille Laukala and water from the pool drained onto the Laukala property. Donald Laukala’s parents, Mr. and Mrs. Nestor Laukala (the senior Laukalas), lived on this property.
On July 2, 1981, Donald Laukala filed a nuisance action against the Knights due to the water from the swimming pool draining onto his property. The Knights prepared numerous pro se pleadings in response to Laukala’s nuisance action, including a motion for summary judgment, a motion for a restraining order, a motion to make Donald Laukala’s parents co-plaintiffs, an answer, a pleading entitled “lis pendens,” and a pleading entitled “countersuit.”
Throughout the briefs and in the record the Knights’ claim against the senior Laukalas is referred to as a “counterclaim” or “countersuit.” During oral argument, counsel agreed that the pro se pleadings attempted to state either a separate claim or a third-party claim.
In their “countersuit,” the Knights alleged that the senior Laukalas laughed and swore at the Knights, chipped the Knights’ driveway, built an “illegal fence,” and tried to destroy the Knights’ van. The Knights also included in this pleading a malicious prosecution claim against Glenn Kerbs, the attorney representing Donald and Lucille Laukala in the nuisance lawsuit filed against the Knights.
Personnel of the clerk of the district court would not, for some unexplained reason, accept the Knights’ pro se pleadings. On July 10, 1981, the Knights hired attorney Myers to represent them in the Laukala case.
Myers filed an amended answer and a request for a specified amount of money damages on July 14, 1981. On July 20, 1981, Myers sent a letter to Norman Knight attempting to clarify the terms of his employment. The letter reads as follows:
“Dear Norman:
“In reviewing the materials which you gave me, I felt perhaps I should clarify the terms of my employment. It is my understanding that I am to proceed to defend the action brought by Mr. Laukala, but that you do not wish to pursue the counter-suit or the other issues which you raised in the materials which you filed, including the Motion for Summary Judgment and a Restraining Order. If this was not your understanding, please let me know at your early convenience.
“Sincerely yours,
“Douglas B. Myers”
Mr. Knight received and read this letter. Mr. Knight testified that he discussed this matter with Myers and instructed him to proceed with an action against Austin and against the senior Laukalas. On August 13, 1981, Myers filed a action against Austin on behalf of the Knights.
On December 1, 1981, Myers sent a letter to Mr. Knight, informing him that Myers was terminating his employment relationship with the Knights. On December 14, 1981, Myers formally withdrew from the case involving the Laukalas and the case involving Austin.
The pretrial conference in the Laukala case was held on January 8, 1982, and at that time the Knights had hired attorney Barry Gunderson to represent them in the Laukala case and in the Austin Pool Company case. After the pretrial conference in the Laukala case, Mr. Knight wrote a letter to T. J. Carney, the attorney provided by their homeowners’ insurance to defend them.
“Dear Mr. Carney:
“It was nice to visit with you and the other Insurance Attorney at the Courthouse today following our Pre-trial Hearing. We appreciated the manner in which you Gentlemen Represented us, along with our personal Attorney, Mr. Barry Gunderson. We were very pleased with the obvious details brought out during the Hearing.
“We want to thank you for bringing out the fact that we should not release our Counter-Claims against Attorney Glenn Kerbs. We will surely relate this information to Mr. Gunderson, as these are most assuredly our feelings, also. We feel that Mr. Kerbs should have never filed this action, and since he did file such a malicious prosecution, he should pay for his misconduct. We shall make certain that Mr. Gunderson understands these to be our feelings.
“We shall request that Mr. Gunderson properly Serve Mr. Kerbs, along with properly Serving Mr. and Mrs. Nester Laukala. We felt proper Service had been made, but from our observation in the Courtroom today, it appears that our former Attorney, Mr. Douglas Myers, had failed to do his home-work in this area.” (Emphasis added.)
A copy of this letter was filed in the district court’s file in the Laukala case.
Knight testified that on the date of this letter, he knew that Myers had not properly served the Laukalas and that Myers had not pursued the countersuit against the Laukalas.
Defendant Gunderson took the Knights’ case against Austin Pool Company to trial and recovered a judgment of $1,000.00. Gunderson formally withdrew from representing the Knights on April 6, 1983. As of June 1, 1983, when the Knights re-filed their action against the Laukalas, they knew that Gunderson had never followed up with any service on the Knights’ suit against the Laukalas.
Sometime between June 1, 1983, and December 19, 1983, Lelyn Braun, the Knights’ present attorney, began representing the Knights in their suit against the Laukalas. Apparently the suit was dismissed on May 21,1984, on the basis that it was barred by the statute of limitations. However, in their appellate brief, the Knights assert that the ruling dismissing their claim against the Laukalas was filed December 19, 1984.
The Knights filed their legal malpractice action against defendant Myers on August 29, 1985.
A pretrial conference was held on May 23, 1986. The pretrial order entered as a result of this conference listed the Knights’ allegations against Myers as
“an act of malpractice and negligence in failing to file a counterclaim on behalf of [the Knights] and against Mr. and Mrs. Nestor Laukala, and [failure] to issue a summons on the pro se pleadings . . . thereby depriving [the Knights] of an effective counterclaim in that action which was later barred by Court ruling on the basis of statute of limitations.”
Myers filed a motion for summary judgment on September 11, 1986, alleging that the Knights’ claims against him were barred by the statute of limitations. The trial court granted the motion and plaintiffs appeal.
WHEN AN ACTION FOR LEGAL MALPRACTICE ACCRUES
Against defendant Myers, their former attorney, the Knights made both contract and tort claims. The Knights claimed (1) Myers failed to file a counterclaim, and (2) Myers was negligent in failing to file that claim and in failing to issue summons on pro se pleadings prepared by the Knights. On appeal, the Knights state that “[a]s the pleadings in this case reflect, this action is brought in tort and is one limited to two years.” The Knights have waived their contract claim and are only pursuing their tort claim on appeal.
Because the Knights’ action is in tort, the controlling statute of limitations is K.S.A. 60-513.
K.S.A. 60-513(b) specifically states that a tort action accrues either at the time at which (1) the act giving rise to the cause of action first causes substantial injury, or (2) if the fact of the injury is not reasonably ascertainable, the time at which the injury does become reasonably ascertainable to the injured party. The statutory rules for determining when a cause of action for tort accrues have been specifically applied in tort actions for legal malpractice. See Webb v. Pomeroy, 8 Kan. App. 2d 246, 249-50, 655 P.2d 465 (1982), rev. denied 232 Kan. 876 (1983) (non-lawyer); Chavez, Executrix v. Saums, 1 Kan. App. 2d 564, 565, 571 P.2d 62, rev. denied 225 Kan. 843 (1977).
The Knights’ cause of action against the senior Laukalas must have accrued on or before the Knights filed their pro se pleadings on July 8, 1981. In the pro se pleadings, the Knights attempted to sue the senior Laukalas. Plaintiffs contend that Myers breached a duty in either (1) not issuing a summons against the senior Laukalas or in (2) not advising the Knights of the statute of limitations.
The Knights could first have filed, and prosecuted, an action against Myers at any time after the statute of limitations ran on their claims against the senior Laukalas.
As a general rule, a cause of action accrues as soon as the right to maintain a legal action arises. The true test to determine when an action accrues is that point in time at which plaintiff could first have filed and prosecuted an action to a successful conclusion. Pancake House, Inc. v. Redmond, 239 Kan. 83, 87, 716 P.2d 575 (1986). According to Pancake House, depending upon the facts and circumstances of each case, at least four theories can apply in Kansas when determining the accrual of a cause of action for legal malpractice: (1) the occurrence rule, (2) the damage rule, (3) the discovery rule, and (4) the continuous representation rule.
In Pancake House, plaintiff Pancake House was suing defendant attorneys for legal malpractice after defendants, who had been counsel for Pancake House for approximately 20 years, chose to represent the individual interests of certain stockholders against Pancake House. The Supreme Court held Pancake House did not suffer any damages until it had to defend against the suit filed by its former attorneys. Although the alleged malpractice occurred when the suit was filed on October 16, 1980, it was not until the suit was concluded with the filing of the journal entry on September 7, 1982, that Pancake House “suffered sufficient damages for the tort to accrue.” 239 Kan. at 88.
Under the facts of the present case, we hold that the Knights’ cause of action did not accrue until they reasonably should have discovered the material facts essential to their cause of action against the defendant Myers. K.S.A. 60-513 provides a cause of action based on tort accrues when substantial injury occurs, unless the injury was not reasonably ascertainable until sometime after the negligent act occurs. When substantial injury is not immediately ascertainable, the cause of action accrues when the injury becomes “reasonably ascertainable.” “Substantial injury” has been defined as “actionable injury.” Roe v. Diefendorf, 236 Kan. 218, 223, 689 P.2d 855 (1984). An injury is reasonably ascertainable when the plaintiff knew or could reasonably have been expected to know of the alleged negligence. Hecht v. First National Bank & Trust Co., 208 Kan. 84, 92, 490 P.2d 649 (1971).
The district court ruled that plaintiffs’ cause of action accrued on January 8,1982, the date of the pretrial conference in Laukala v. Knight, 81-C-159. The Knights had retained a new attorney, Barry Gunderson, by that date.
Although we agree with the district court’s ruling that this action is barred by the statute of limitations, we disagree with the district court’s conclusion that the Knights’ resulting injury was sufficiently ascertainable to them on January 8, 1982, to justify filing an action for damages. The alleged injury or damage to the Knights did not occur until a later date. In the present case, the Knights could not have filed and prosecuted their cause of action against attorney Myers on January 8,1982. They had suffered no ascertainable damage at that time. The Knights were not injured until the statute of limitations ran on their claim against the senior Laukalas which would have been no later than July 8, 1983. On July 8, 1983,_iheir claim against the senior Laukalas was barred. At this time, the Knights could have sustained injury as a result of defendant Myers’ alleged malpractice.
SUMMARY JUDGMENT
The Knights contend the trial court erred in granting summary judgment for defendant Myers on the basis that the statute of limitations had run on their claim.
“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.” Peoples Nat’l Bank & Trust v. Excel Corp., 236 Kan. 687, Syl. ¶ 5, 695 P.2d 444 (1985). Summary judgment may be proper in a statute of limitations case if there is no dispute or genuine issue as to the time when the statute commenced to run.
We do not know when the statute of limitations ran on the Knights’ claim against the Laukalas. However, we do know that the alleged harassment and destruction of property occurred on or before July 8, 1981, the date on which the Knights filed their “countersuit” against the senior Laukalas for these alleged acts. Because the “countersuit” alleged that the Laukalas committed various torts, the statute of limitations on the claim would have run two years from that date, or July 8, 1983.
Everyone is presumed to know the law, Flott v. Wenger Mixer Manufacturing Co., 189 Kan. 80, 367 P.2d 44 (1961), including relevant statutes of limitation. See Travelers Insurance Com pany v. Warren, 447 S.W.2d 698, 702 (Tex. Civ. App. 1969). The Knights are charged with knowledge of the statute of limitations and constructively knew that on or before July 8, 1983, the statute of limitations had passed on their claim against the senior Laukalas. Consequently, the Knights constructively knew that Myers had injured them due to his alleged failure to file the “countersuit” or have summons issued on their “countersuit.” Because the Knights constructively knew on or before July 8, 1983, that they had suffered substantial injury, their claim against Myers, filed August 29, 1985, is time-barred. See Banton v. Marks, 623 S.W.2d 113, 115 (Tenn. App. 1981).
The Knights filed a response to Myers’ motion for summary judgment. However, the response did not set forth “in separately numbered paragraphs (corresponding to the numbered paragraphs of movant’s memorandum or brief) a statement whether each factual contention of movant is controverted, and if controverted, a concise summary of conflicting testimony or evidence,” as required by Supreme Court Rule 141, (1987 Kan. Ct. R. Annot. 79). The trial court adopted Myers’ statement of uncontroverted facts. We agree with the trial court’s treatment of the summary judgment motion. It is not the trial court’s duty to seek out the recórd. Rather, counsel is required to designate the portions of the record which support that party’s position. On opposing a motion for summary judgment, a party must come forward with something of evidentiary value to establish a material dispute of fact. Slaymaker v. Westgate State Bank, 241 Kan. 525, 531, 739 P.2d 444 (1987); Crooks v. Greene, 12 Kan. App. 2d 62, 736 P.2d 78 (1987); Supreme Court Rule 141(b). See K.S.A. 1987 Supp. 60-256(e).
SUBSEQUENT COUNSEL
Defendant Myers terminated his employment with plaintiffs on December 1, 1981. On December 14, 1981, he formally withdrew from cases 81-C-159 (Donald Laukala’s case against the Knights) and 81-C-184 (the Knights’ case against Pacific Pools and Austin Pool Co.). By the time of the pretrial conference on January 8,1982, in case 81-C-159, plaintiffs had hired attorney Barry Gunderson to represent them. Gunderson proceeded to handle case 81-C-184 which resulted in a jury trial and a verdict in favor of the Knights. Gunderson withdrew from representing the Knights on April 6, 1983. On May 4, 1983, a third attorney, Bob Feldt, entered his appearance in case 81-C-159 on the Knights’ behalf. Feldt withdrew shortly thereafter. At some point between June 1, 1983, and December 19, 1983, plaintiffs’ present attorney, Mr. Braun, began representation of the Knights.
The two-year statute of limitations on the Knights’ claim against the senior Laukalas may not have run until July 8, 1983, eighteen months after defendant Myers formally withdrew as counsel for the Knights. The attorney-client relationship between defendant Myers and plaintiffs terminated on December 14, 1981.
“An attorney cannot be held liable for failing to file an action prior to the expiration of the statute of limitations if he ceased to represent the client and was replaced by other counsel before the statute ran on the client’s action.” Steketee v. Lintz, Williams & Rothberg, 38 Cal. 3d 46, 57, 210 Cal. Rptr. 781, 694 P.2d 1153 (1985). See also Frazier v. Effman, 501 So. 2d 114, 116 (Fla. Dist. App. 1987) (attorney’s failure to file medical malpractice claim prior to expiration of statute of limitations not legal malpractice when attorney ceased to represent the client before the statute passed and was replaced by other counsel); Harvey v. Mackay, 109 Ill. App. 3d 582, 587, 440 N.E.2d 1022 (1982) (attorney’s failure to file lawsuit prior to expiration of statute of limitations not malpractice when attorney withdrew from representation before statute of limitations passed); Hunt v. Kolken, 49 App. Div. 2d 747, 372 N.Y.S.2d 698 (1975), aff'd 40 N.Y.2d 949, 358 N.E.2d 1038 (1976) (attorney who is discharged by client and forwards file to client’s new attorney not liable for malpractice because of subsequent mistakes in a client’s litigation).
The Knights had at least two and possibly three attorneys between the date Myers withdrew and July 8, 1983.
DUTY TO INFORM
The Knights contend that Myers had a duty to inform them that there was a statute of limitations running on their alleged claims against the Laukalas. The “duty to inform” contention was emphasized at oral argument as the Knights’ rationale for reversal of the summary judgment motion. This contention was neither contained in the pretrial order nor argued in the court below. Consequently, it should not be considered by this court on appeal. In re Hamstead, 11 Kan. App. 2d 527, 528, 729 P.2d 461 (1986).
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Parks, J.:
Plaintiff, Central State Bank (Bank), brought this action to foreclose on five shares of stock in a professional corporation which it held as security on a loan made to defendant, Bruce W. Albright. Both parties moved for summary judgment and the Bank’s motion was granted. Defendant Albright appeals.
In 1969, Dr. H.B. Thompson incorporated his dental practice under the name H.B. Thompson, D.D.S., Chartered. In 1982, Thompson entered into an agreement with defendant, who is also a dentist, for the sale of a one-half interest in the professional corporation. The two dentists executed a stock purchase agreement which provided that on June 1, 1983, defendant would obtain five shares of stock in the corporation, representing a fifty percent ownership of the outstanding stock, in return for certain monthly payments. In the event defendant defaulted on the future payments, the agreement stated defendant would forfeit all rights under the agreement .and would sell any shares already transferred to him back to Thompson. The name of the corpora tion changed tó H.B. Thompson, D.D.S., B.W. Albright, D.D.S., P.A.
On November 25, 1983, defendant borrowed $50,000 from the Bank. Defendant executed a promissory note in favor of the Bank and, at the request of the Bank, gave as collateral an assignment of a stock certificate representing his ownership of five shares in the corporation. On December 12, 1984, defendant defaulted on the stock purchase agreement with Thompson. Defendant and his wife later filed for bankruptcy and were granted a discharge of their indebtedness, including defendant’s debt to the Bank, on May 30, 1985. The Bank then filed this action to foreclose on the collateral.
Both parties filed statements of uncontroverted facts and sought summary judgment. Defendant contended that the foreclosure would violate the law regarding the transfer of shares in the stock of a professional corporation, in particular, K.S.A. 17-2712. The trial court rejected defendant’s arguments and granted summary judgment to the Bank.
Professional corporations are a special type of corporation devised to permit members of certain professions the opportunity to practice together and enjoy the tax and other advantages of the corporate form. However, legislation extending the power to incorporate to professionals seeks to assure that corporate control will remain with persons bound by professional standards and ethics. 1A Fletcher, Cyclopedia of the Law of Private Corporations § 112.1 (rev. perm. ed. 1983). Thus, the general laws regarding corporations apply to professional corporations, except to the extent provided otherwise by the specific provisions of the professional corporation law. K.S.A. 17-2708. Ordinarily, shares of stock in a corporation are deemed to be personal property freely transferable according to the terms of article 8 of the Uniform Commercial Code (U.C.C.). K.S.A. 1986 Supp. 17-6409. However, the ownership and transferability of stock in a professional corporation is restricted by K.S.A. 17-2712, which provides as follows:
“(a) A professional corporation may issue the shares of its capital stock only to a qualified person. A shareholder may voluntarily transfer his shares in a professional corporation to the corporation or to a qualified person with the prior written consent of the corporation unless the articles of incorporation otherwise provide. No shares may be transferred upon the books of the professional corporation or issued by the professional corporation until there is presented to and filed with the corporation a certificate by the regulating board stating that the person to whom the transfer is to be made or the shares issued is duly licensed to render the same type of professional services as that for which the corporation was organized. No shareholder shall enter into any voting trust agreement, proxy, or any other type of agreement vesting another person, other than another shareholder of the same corporation, with authority to exercise the voting power of any or all of his stock. The issuance or transfer of any shares and any proxy, voting trust or other agreement made in violation of this section shall be null and void. Every certificate of stock issued by a professional corporation shall contain substantially the following provision: ‘The ownership and transfer of this stock and the rights and obligations of stockholders are subject to the limitations and provisions of the professional corporation law of Kansas.’
“(b) The Kansas securities law (Kansas Statutes Annotated, chapter 17, article 12) shall not be applicable to nor govern any transactions relating to any shares of a professional corporation.”
A “qualified person” to whom shares of a professional corporation may be issued or transferred is defined as follows:
“(d) ‘Qualified person’:
(1) Any natural person licensed to practice the same type of profession which any professional corporation is authorized to practice; or
(2) the trustee of a trust which is a qualified trust under subsection (a) of section 401 of the internal revenue code of 1954, as amended, or of a contribution plan which is a qualified employee stock ownership plan under subsection (a) of section 409A of the internal revenue code of 1954, as amended.” K.S.A. 1986 Supp. 17-2707(d).
Defendant contends that since the Bank is not a qualified person under K.S.A. 1986 Supp. 17-2707(d), the transfer attempted by the execution of the security agreement should be “null and void” under K.S.A. 17-2712. Thus, defendant argues the Bank holds no collateral as security on his discharged indebtedness which would be subject to foreclosure. The Bank contends that it simply seeks to enforce its security interest in an “instrument” pursuant to the law of secured transactions and that no transfer of the professional corporation stock was attempted by the security agreement. The trial court granted the foreclosure and held that the grant of a security interest by a qualified person in professional corporation stock to a lending institution in exchange for a loan is not in violation of K.S.A. 17-2712. The court further concluded that the stocks were not “issued” to the Bank nor was this a voluntary transfer of the stock to the Bank. While the court stated that the Bank may be limited in any transfer it may make of the foreclosed stock, it held the foreclosure itself was not contrary to the law.
Initially, it is important to point out that this is not a case in which a judgment creditor seeks to levy execution on professional corporation stock. See, e.g., Street v. Sugarman, 202 So.2d 749 (Fla. 1967); Gulf Mtg. & Rlty. Investments v. Alten, 282 Pa. Super. 230, 422 A.2d 1090 (1980). Rather, plaintiff seeks an order permitting it to sell stock pledged as security for a loan. Thus, the precise issue in this case is whether a lender may b.e granted an enforceable security interest in professional corporation stock.
K.S.A. 17-2712 permits the voluntary transfer of professional corporation stock to a qualified person with the written permission of the corporation. By implication, it prohibits the voluntary transfer of stock to a person who is not qualified by stating that transfers in violation of the statutory restrictions shall be null and void. Therefore, we must determine whether the legislature intended to depart from the ordinary rule permitting the creation of security interests in corporate stock by restricting the voluntary transfer of professional corporation stock.
The word “transfer” is generally given an expansive meaning including any transaction whereby the property or interest of one person becomes the property or interest of another. Fairlawn Plaza Development, Inc. v. Fleming Co., Inc., 210 Kan. 459, 464, 502 P.2d 663 (1972). The language of the Bank’s security agreement characterized the nature of the transaction as a transfer of interest with the following language:
“For the purpose of securing the payment of this note, and all other liabilities of the undersigned to said Bank now or hereafter existing, the undersigned hereby pledge(s), transfer(s), and deliver(s) the property hereinafter described, and grant(s) a security interest in favor of the Bank therein, . . . .”
The general corporation provision recognizing the transferability of corporate stock distinguishes between the transfer of stock as collateral security and the absolute transfer of stock ownership by stating as follows:
“The shares or stock in every corporation shall be deemed personal property and transferable as provided in the acts contained in article 8 of chapter 84 of the Kansas Statutes Annotated. Whenever any transfer of shares shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of the transfer if, when the transfer is registered, both the transferor and transferee request the corporation to do so.” K.S.A. 1986 Supp. 17-6409.
K.S.A. 1986 Supp. 17-6409 and its predecessor provisions term both the creation of a security interest in corporate stock and an absolute change in ownership a “transfer” of the stock. Moreover, the terminology of article 8 of the U.C.C. characterizes a secured transaction involving corporate stock as a transfer and provides that the security interest does not attach until the transfer takes place. K.S.A. 1986 Supp. 84-8-321. It is a well recognized rule of statutory construction used to determine legislative intent that ordinarily identical words or terms used in different statutes on a specific subject are interpreted to have the same meaning in the absence of anything in the context to indicate that a different meaning was intended. T-Bone Feeders, Inc. v. Martin, 236 Kan. 641, 648, 693 P.2d 1187 (1985). Therefore, the restrictions on “transfers” of professional corporation stock contained in K.S.A. 17-2712 must have been intended to restrict the transfer of stock for the purpose of creating a security interest regardless of whether the shares of a professional corporation could be characterized under the U.C.C. as “instruments” (K.S.A. 1986 Supp. 84-9-105[i]) or “general intangibles” (K.S.A. 84-9-106).
Since the attempted transfer took place when defendant granted the security interest in a consensual loan transaction with the Bank, the transfer was voluntary. The fact that the Bank sought to enforce the rights it was granted by the security agreement through foreclosure does not convert the earlier transfer voluntarily made by defendant into an involuntary act. Thus, the grant of the security interest in the stock certificate issued by the professional corporation was an attempt to voluntarily transfer the shares to an unqualified person and, according to K.S.A. 17-2712, “shall be null and void.”
The Bank contends that despite the language of K.S.A. 17-2712, K.S.A. 17-2719 indicates that an unqualified person may own shares of a professional corporation and that it is the corporation rather than the unqualified shareholder which must bear the consequences of the transfer. K.S.A. 17-2719 does indeed recognize that there may be situations in which an unqualified person becomes a shareholder; the provision indicates that a professional corporation will forfeit its certificate of incorporation if any shares of the corporation have been owned by an unqualified person for more than one year without action being taken to fix the value of the shares in the manner provided by K.S.A. 17-2714. However, the mere fact that an unqualified person may become a shareholder does not contradict the clear statement of K.S.A. 17-2712 that voluntary transfers to an unqualified person shall be null and void since an involuntary transfer could also result in ownership by an unqualified person.
K.S.A. 17-2714 provides the means by which the value of shares may be fixed so that the corporation or its shareholders may repurchase shares when they fall to an unqualified person by virtue of the death or disqualification of a shareholder. Thus, the statute provides a means of preserving the restrictions on the ownership of professional corporation shares when an involuntary transfer prompted by the death or disqualification of the previous owner takes place. In such a circumstance, an unqualified person may become the owner of the stock as a result of an involuntary transfer but K.S.A. 17-2712 does not, by its own terms, apply. By contrast, when, as here, a voluntary transfer to an unqualified person is attempted, the transfer itself is void.
We conclude that the trial court erred in granting summary judgment to the Bank. The attempt to obtain a security interest in the shares of stock in this professional corporation was void as a voluntary transfer to an unqualified person under K.S.A. 17-2712. Since the defendant’s debt was discharged in bankruptcy and the transfer of the shares to the Bank as security was voluntary and invalid under K.S.A. 17-2712, the Bank held no collateral upon which it could foreclose.
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Abbott, C.J.:
This is a direct appeal by the defendant Frederick J. Frazier from his convictions of theft under $150 (K.S.A. 1986 Supp. 21-3701), battery against a law enforcement officer (K.S.A. 21-3413), and obstructing legal process or official duty (K.S.A. 21-3808). All three violations are class A misdemeanors.
A security officer observed defendant concealing clothing and household items under his clothing in a store at the Indian Springs Mall. The security officer alerted a uniformed law enforcement officer, who attempted to apprehend the defendant. The defendant physically resisted, and the uniformed officer called for assistance. Two persons responded to the call, a Wyandotte County Sheriffs officer and the assistant director of the mall. Defendant continued to resist and also doubled up his fist and deliberately struck one of the uniformed officers in the chest. Defendant continued his combativeness after being arrested and handcuffed. He kicked items, refused to walk, and had to be carried to a vehicle. Once in the vehicle, he thrashed about arid kicked the dashboard of the car.
Defendant contends that, since he was arrested within the city limits of Kansas City, Kansas, it was the city, not the county, which had jurisdiction, and that the charges of battery against a law enforcement officer and obstructing official duty were multiplicitous.
Defendant does not cite any authority for his position that the municipal court had exclusive jurisdiction to hear the charges as they were violations of city ordinances. The trial court found that both the municipal court of Kansas City, Kansas, and the district court of Wyandotte County had jurisdiction.
K.S.A. 20-301 outlines the jurisdiction of Kansas district courts:
“There shall be in each county a district court, which shall be a court of record, and shall have general original jurisdiction of all matters, both civil and criminal, unless otherwise provided by law, and also shall have such appellate jurisdiction as prescribed by law.”
K.S.A. 12-4104 outlines the jurisdiction of Kansas municipal courts:
“The municipal court of each city shall have jurisdiction to hear and determine cases involving violations of the ordinances of the city. Search warrants shall not issue out of a municipal court.”
It is obvious that the legislature did not intend to confer exclusive jurisdiction upon the municipal court for every offense which constituted a violation of a city ordinance and also a violation of a state statute.
In Rice v. State of Kansas, 3 Kan. 141 (1865), defendant was charged in the Criminal Court of Leavenworth County with setting up and keeping a gambling device called a faro-bank for gain and inducing “divers idle and ill-disposed persons” to bet on the game of faro “to the corruption of good morals, and the common nuisance of all the citizens of the state residing in the neighborhood.” 3 Kan. at 156-57. The defendant challenged the jurisdiction of the Criminal Court of Leavenworth County, and a demurrer was filed against the plea and was sustained by the trial court.
“The question is not, whether when the city shall have exhausted its power in a given case, the state can inflict punishment for the same offense? But whether either may not inflict the prescribed penalty. It is not necessary in this case to decide whether both can punish for the same act; but we have no doubt but that the one which shall first obtain jurisdiction of the person of the accused, may punish to the extent of its power.” 3 Kan. at 164.
In In re Donnelly, Petitioner, &c, 30 Kan. 191, 1 Pac. 648 (1883), the defendants were charged by the justice of the peace with selling intoxicating liquors. The parties conceded that justices of the peace and the district courts had concurrent original jurisdiction. 30 Kan. at 192-93. The only question involved in the appeal was:
“[Wjhen a party is arrested and brought before a justice of the peace, charged with the commission of a misdemeanor of which the justice of the peace and the district court have concurrent original jurisdiction, [does] the defendant [have] a right to demand a trial before the justice of the peace; or may the state elect to treat the proceeding before the justice as a mere preliminary examination, and have the party committed for final trial at the next term of the district court?” 30 Kan. at 193.
The Supreme Court noted that prior to 1869 justices of the peace had exclusive original jurisdiction in all misdemeanor cases in which a fine could not exceed five hundred dollars and imprisonment could not exceed one year. A preliminary examination was not allowed in such cases. In 1869, however, the law was amended, giving district courts equal and concurrent original jurisdiction with justices of the peace in all such misdemeanor cases. The court noted that once a party had been properly brought before a justice of the peace, the justice had no power to conduct a preliminary examination and then divest himself of the authority to hear a case and transfer it to the district court. The court further noted:
“There is no statute directing him to send a case to the district court in preference to sending the same to any justice of the peace of the county; for it is conceded that every justice of the peace in the county has equal and concurrent jurisdiction with the district court to hear and determine such cases. There is no pretense of any statute giving to the district court preference over any justice of the peace of the county in such cases. On the contrary, the jurisdiction of all such courts in all such cases is concurrent and equal. Under the statutes, the district court takes jurisdiction in cases of misdemeanor such as we are now considering, in precisely the same manner that justices of the peace do, and tries them in precisely the same manner; and the court first obtaining jurisdiction, retains it. . . . The county attorney may commence a prosecution in any court he chooses, provided it has the requisite jurisdiction to hear and determine the case; but there is no statute giving to him any discretionary authority to remove a case from one court having jurisdiction to any other court, at his option.” 30 Kan. at 196.
Here, the district court of Wyandotte County had jurisdiction.
The defendant next argues that striking the officer in the chest was part of obstructing the officer’s official duty and, therefore, the two offenses should be merged into one.
The issue of multiplicity of crimes arising out of the same conduct is governed by K.S.A. 1986 Supp. 21-3107(1): “When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.” The defendant was resisting, opposing, or obstructing the officer in his official duty even before the second officer arrived on the scene. After the defendant struck the second officer in the chest, he continued his resistive behavior — refusing to walk to the security office, kicking over chairs while in the security office, and refusing to walk out to the police car, resulting in the officers’ physically carrying him to and placing him inside the car. Once inside the car, the defendant kicked the dashboard and threatened the officer.
In State v. Freeman, 236 Kan. 274, 689 P.2d 885 (1984), the Supreme Court defined “multiplicity” as “the charging of a single offense in several counts of a complaint or information.” 236 Kan. at 280.
“The test concerning whether a single transaction may constitute two separate and distinct offenses is whether the same evidence is required to sustain each charge. If not, the fact that both charges relate to and grow out of the same transaction does not create a single offense where two distinct offenses are defined by statute. [Citation omitted.]” 236 Kan. at 281.
“If each offense charged requires proof of a fact not required in proving the other, the offenses do not merge.” State v. Chears, 231 Kan. 161, 162, 643 P.2d 154 (1982). Under K.S.A. 21-3413, the State is required to prove that defendant intentionally touched or applied force in a rude, insolent, or angry manner to the person of a law enforcement officer while engaged in the performance of his duty. Obstruction of official duty under K.S.A. 21-3808 does not require the law enforcement officer to be touched at all. In State v. Parker, 236 Kan. 353, Syl. ¶ 4, 690 P.2d 1353 (1984), the Supreme Court held that “[t]he scope of K.S.A. 21-3808 is broad enough to encompass oral statements as well as physical acts.” Under 21-3808, the State is required to prove that the act of the defendant substantially hindered or increased the burden of the officer in the performance of his official duty. The State is not required to prove this element in the battery against a law enforcement officer charge. The charges are not multiplicitous and the trial court did not err.
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Parks, J.:
Plaintiff, Topeka Datsun Motor Co. (Topeka Datsun), brought this action for a deficiency judgment after defendant, Paulette S. Stratton, defaulted on a new truck loan. Defendant counterclaimed alleging plaintiff disposed of the collateral in a commercially unreasonable fashion, violated provisions of the Uniform Commercial Code (UCC) and Uniform Consumer Credit Code (UCCC), and relied upon an unconscionable sales contract. After a trial to the court, defendant’s counterclaims for actual and punitive damages as well as statutory penalties and attorney fees were denied. Plaintiff was granted a deficiency judgment of $3,083.51 and defendant appeals.
On May 19, 1984, defendant took advantage of manufacturer sponsored 8.8% financing to buy a new Datsun “King Cab” pickup. She testified she had to wait in line to meet with the Topeka Datsun financing officer and that she was rushed and pressured into signing the contract. Defendant also testified she was told to sign the contract in two places and that she did so even though several essential terms had not been written into the blanks on the form and she was given no time to read the contract. Defendant said that she provided a figure which would be her maximum acceptable monthly payment but that the final price, amount financed, and monthly payment terms were not stated in the contract when she signed it. She also testified she was given no option concerning the purchase of credit life or disability insurance and that, despite her inquiries, she was not told the amount of her monthly obligation until she received a payment booklet in the mail.
The retail sales contract was signed on behalf of Topeka Datsun by Marion Thomas. He testified that he had no involvement in the negotiations with defendant or personal knowledge concerning the manner in which the contract was executed by her. However, he testified that the ordinary practice of the dealership did not include pressuring the buyer’s execution of an incomplete contract.
The contract, which obligated defendant to make payments of $272.92 for 48 months, was assigned with recourse to the Fidelity State Bank & Trust (Fidelity). Defendant made her payments directly to Fidelity and when she first received her payment book she contacted the bank seeking to modify the amount of the payments. Defendant was told the monthly obligation could not be altered. Defendant made a total of 12 monthly payments between June 18, 1984, and May 31, 1985. The December 1984 payment was not made until January 11, 1985, after Fidelity sent defendant a notice of default and right to cure dated January 3. Defendant subsequently missed the June payment and once again called the bank about changing the terms of the payment schedule. The bank officer who dealt with defendant testified that he told defendant that the payments could not be altered and that she could either seek to refinance the loan with her own bank or sell the truck. The Fidelity employee could not recall whether he told defendant she would be liable for any deficiency if the truck were repossessed but stated that it was his usual practice to do so. Defendant called several local dealers about selling the truck but none of the dealers was interested. One of the dealers told defendant that if he wanted the truck he would be able to buy it wholesale when it was repossessed. Unable to sell the truck herself, defendant surrendered it to Fidelity on July 29, 1985. Defendant was informed by letter the next day that Fidelity would sell the truck at a private sale but that defendant had ten days to redeem the truck.
Since defendant’s purchase of the truck, Topeka Datsun has ceased doing active business. When plaintiff bought the truck Topeka Datsun was a corporation wholly owned by the holding company EBI, Inc., which was in turn owned by Ed Bozarth. On July 1, 1985, Topeka Datsun merged with EBI, Inc.; the holding company took over all obligations of Topeka Datsun and its assets were sold. At all times pertinent to this case, Ed Bozarth was the president and sole stockholder of Ed Bozarth Chevrolet, Inc., and EBI, Inc.
After defendant surrendered the truck to Fidelity, it was taken to the lot of Ed Bozarth Chevrolet, Inc. The chattel paper held by Fidelity on the truck was reassigned to Topeka Datsun under Fidelity’s right to recourse in exchange for the payment of $8,885.93 by EBI, Inc. Bids were orally solicited from local used car dealers between August 20 and September 20. Bids were received from Shawnee Wholesale for $4,800 and from Gurss Motors for $4,900. On September 20, a bid of $5,000 from Ed Bozarth Chevrolet, Inc., was made and accepted by EBI, Inc. The truck remained on the Ed Bozarth lot until it was sold at retail to a third party for $6,300. Plaintiff introduced evidence of the value of the truck surrendered by defendant according to the N.A.D.A. (National Automobile Dealers Assocation) official used car guide which indicated that the trade-in value of the truck was $4,800 while the retail value was $5,676. The N.A.D.A. guide also indicated that the special equipment on defendant’s truck would add $850 to its value as trade-in and $925 to its retail value. The deficiency of $3,885 claimed by plaintiff was based on the $5,000 price paid in the private wholesale purchase by Ed Bozarth Chevrolet, Inc., rather than the subsequent retail sale.
Once defendant was notified by Fidelity that the truck would be sold in a private sale if she failed to redeem it in ten days, she received no further notice of time or manner of the sale or her right to bid on the truck. Defendant was not aware that she would be liable for a deficiency until she received a demand letter from an attorney on behalf of Ed Bozarth Chevrolet, Inc. When she failed to pay the deficiency, suit was filed in the name of Topeka Datsun. Every effort has been made by the plaintiff to emphasize the independent corporate identities of Ed Bozarth Chevrolet and Topeka Datsun.
The district court reviewed the characteristics of a commercially reasonable sale and rejected defendant’s claim that plaintiff s actions were unreasonable. The court did not specifically rule on the claim of unconscionability of the retail sales contract but denied defendant any relief. The court granted a deficiency judgment to plaintiff and defendant appeals.
I. Disposal of Collateral
Whenéver a secured creditor accepts the surrender of collateral by a defaulting debtor, he may dispose of the collateral and seek a judgment for the balance of the indebtedness not satisfied by the sale proceeds. K.S.A. 84-9-504. However, the manner in which the creditor sells the collateral is subject to three essential limitations. K.S.A. 84-9-504(3). First, the creditor must give notice to the debtor concerning the sale unless the collateral is perishable or threatens to decline speedily in value, or is of a type customarily sold on a recognized market. The notice required is reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made. The notice need not be given if it is waived in writing after default. The second limitation on the creditor’s disposition of repossessed collateral restricts the creditor’s right to buy the collateral. This limitation is stated as follows:
“The secured party may buy at any public sale and if the collateral is of a type customarily sold in a recognized market or is of a type which is the subject of widely distributed standard price quotations he may buy at private sale.” K.S.A. 84-9-504(3).
Finally, the last restriction on the creditor’s disposal of collateral stated in K.S.A. 84-9-504(3) is the general requirement that the sale be commercially reasonable in all respects including the method, manner, time, place, and terms. While commercial reasonableness and notice are specified separately in the statute, they are interrelated requirements. If a creditor fails to give the notice required prior to a sale, it is not commercially reasonable. Garden Nat’l Bank v. Cada, 11 Kan. App. 2d 562, 566-67, 729 P.2d 1252 (1986). See Bank of Sheridan v. Devers, 217 Mont. 173, 702 P.2d 1388 (1985); 9 Anderson, Uniform Commercial Code § 9-504:37 (3rd ed. 1985). Thus, commercial reasonableness is an umbrella term which encompasses all aspects of the sale including the notice given and the creditor’s observance of the restrictions on purchases by the secured party. All of the various factors to be considered in determining whether a sale is commercially reasonable are discussed at length in Westgate State Bank v. Clark, 231 Kan. 81, 92-95, 642 P.2d 961 (1982).
The requirements of K.S.A. 84-9-504 apply to the sale of any repossessed collateral but the consequences of a failure to comply with the terms of the statute vary depending upon whether the underlying transaction was a commercial or a consumer transaction. In Westgate State Bank, 231 Kan. at 90, the Court rejected the argument that a creditor’s failure to comply with K.S.A. 84-9-504(3) in a commercial transaction should bar the collection of a deficiency judgment. Instead, the Court held the creditor’s failure to prove he complied with the UCC proscriptions would entitle the debtor to have the damages resulting from the unreasonable conduct set off against the amount of any deficiency due the creditor. By contrast, a consumer credit transaction under the UCCC is subject to K.S.A. 16a-5-103(l) which provides, “a consumer is not liable for a deficiency unless the creditor has disposed of the goods in good faith and in a commercially reasonable manner.” Thus, when the UCCC applies, creditor misconduct in the disposal of collateral will operate to completely relieve the consumer debtor of the burden of paying a deficiency judgment as a matter of law. Kelley v. Commercial National Bank, 235 Kan. 45, Syl. ¶ 3, 678 P.2d 620 (1984).
The transaction involved in this case was a consumer credit transaction which was covered by the UCCC. The district court found that plaintiff technically complied with the notice requirement and carried its burden of proving the general commercial reasonableness of the subsequent sale. We turn first to consider the correctness of the court’s holding regarding the sufficiency of the notice. «
K.S.A. 84-9-504(3) requires in this case that “reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor . . . (Emphasis supplied.) The only notice ever sent to defendant regarding disposal of the collateral was the letter from Fidelity which identified Fidelity as the secured party and stated that it would sell the truck in a private sale sometime after ten days elapsed if defendant failed to exercise her right to redeem the collateral within that time. No notice was ever sent to defendant by plaintiff. Nonetheless, plaintiff contends that the letter sent by Fidelity complied with the statute and that it could rely on the notice as its own.
Initially, we note that the reasonableness of notice, like the broader question of commercial reasonableness, is ordinarily a question of fact to be determined by the trier of fact. Kelley, 235 Kan. at 51. However, since the only notice relied on by plaintiff is the letter from Fidelity, the construction and legal effect to be given this document is a matter of law. See Cornwell v. Jespersen, 238 Kan. 110, 118, 708 P.2d 515 (1985).
Plaintiff contends that at the time the letter from Fidelity was sent, Fidelity was the secured party. When plaintiff repurchased the collateral from Fidelity pursuant to its agreement, plaintiff argues it once again became the secured party and succeeded to all of Fidelity’s rights including the right to rely on the letter as notice of the sale. K.S.A. 84-9-504(5) anticipates the type of repurchase agreement entered into by plaintiff and Fidelity and states as follows:
“A person who is liable to a secured party under a guaranty, indorsement, repurchase agreement or the like and who receives a transfer of collateral from the secured party or is subrogated to his rights has thereafter the rights and duties of the secured party. Such a transfer of collateral is not a sale or disposition of the collateral under this article.”
This provision recognizes the possibility of an arrangement between a dealer and a financier, such as that which was present in this case, whereby the chattel paper generated from a secured transaction is sold to the financier with recourse to sell the paper back to the dealer in the event of default. In such a situation, the disposition of collateral may actually involve two steps: sale from the financier to the dealer and the subsequent sale by the dealer. K.S.A. 84-9-504(5) assures that the sale used to measure the amount of any deficiency owed by the debtor is determined by the ultimate sale by the dealer rather than the terms of any repurchase agreement between the dealer and financier. Reeves v. Associates Financial Services Co., Inc., 197 Neb. 107, 247 N.W.2d 434 (1976); K.S.A. 84-9-504(5) Kansas Comment 1983.
Fidelity was the secured party when defendant surrendered her pickup truck but once Fidelity exercised its right of recourse, plaintiff had “thereafter the rights and duties of the secured party.” One such duty is to send notice of the sale to the debtor. Since K.S.A. 84-9-504(5) indicates it is the sale by the dealer which determines the amount of any deficiency and it is the dealer who controls the type and conduct of the sale undertaken, it is the dealer who should have the obligation to give notice to the debtor. Modern Auto Co., Inc. v. Bell, 678 S.W.2d 443, 445 (Mo. App. 1984); Jefferson Corp. v. Marcano, 60 Misc. 2d 138, 302 N.Y.S.2d 390 (1969). Cf. Brown v. Ford, 280 Ark. 261, 264, 658 S.W.2d 355 (1983) (notice from financier which stated that dealer would sell car but car could be redeemed prior to sale by paying financer fulfilled dealer’s obligation to send notice). In Modern Auto Co., 678 S.W.2d at 445, a car dealer sought to rely on the notice sent to a cosigner by the bank which had purchased the chattel paper from the dealer with recourse. The court rejected the dealer’s argument holding that once the dealer repurchased the paper from the bank and became the secured party it was required to send notice of any sale it might undertake to the cosigner. The court noted that the dealer was not even aware any notice had been sent by the bank and could not therefore rely upon it.
Similarly, there was no evidence in this case indicating plaintiff had any knowledge of the letter sent by Fidelity when it failed to notify defendant of its intention to sell the repossessed truck at a private sale. The letter does not mention plaintiff and it states that the sale will be conducted by Fidelity. Thus, it appears the “sale” noticed by the letter is the transfer of the collateral to the dealer since this is the only sale made by Fidelity. No notice of any sale to be undertaken by plaintiff was given to the debtor at all.
Even if the letter from Fidelity could be relied upon as notice by Topeka Datsun, the contents of the letter failed to provide the debtor with reasonable notification. The letter stated as follows:
“This letter is to advise you pursuant to (K.S.A. 84-9-S04 of) the Uniform Commercial Code that after ten (10) days have passed following the date of this letter, Fidelity State Bank & Trust Co., as secured party, will make disposition at private sale of the following described property, pursuant to the terms of its security agreement and of the Uniform Commercial Code, to-wit:
One (1) 1984 Datsun 720 King Cab, vehicle IDJN6ND06S3EN013135 You are further notified that the net balance due Fidelity State Bank and Trust Company against the above-described collateral is $8,834.73 as of the date of the writing of this letter. You have ten (10) days from the date of this letter to redeem the above and foregoing security by making payment by cash, certified or cashier’s check to Fidelity State Bank and Trust Company, in the foregoing amount.
We will look forward to your prompt reply.”
K.S.A. 84-9-506 provides that a debtor has the right to redeem the collateral from the secured party “[a]t any time before the secured party has disposed of collateral or entered into a contract for its disposition under section 84-9-504 or before the obligation has been discharged under section 84-9-505(2).” Fidelity’s letter to defendant was dated July 30 and the collateral was transferred to Topeka Datsun on August 20. The truck was sold in the sale on which plaintiff relies to assert a deficiency on September 20. The transfer of the truck from Fidelity to Topeka Datsun was not a sale or disposition under the UCC (K.S.A. 84-9-504[5]) and this transaction was not subject to K.S.A. 84-9-504(3). Therefore, the defendant’s actual period of redemption under section K.S.A. 84-9-506 ran until September 20, 1985. The letter from Fidelity would incorrectly lead a debtor to believe he only had until August 9 to effect a redemption.
In First Nat’l Bank v. DiDomenico, 302 Md. 290, 487 A.2d 646 (1985), the court held that while U.C.C. § 9-504(3) does not require the notice to the debtor to include information concerning his right to redemption, once the creditor undertook to represent those rights, their incorrect statement in a manner which gave the debtor less opportunity to redeem than he actually had, rendered the statement insufficient. The court held the notice including a misstatement of the debtor’s redemption right was not “reasonable notification” as a matter of law.
We find the reasoning of the Maryland case to be persuasive. The purpose of the notice requirement is to enable the debtor to protect his interest in the property by redeeming it or finding a buyer to bid on the property so that the price obtained reflects its actual value. Modern Auto Co., Inc., 678 S.W.2d at 445; 9 Anderson, Uniform Commercial Code § 9-504:38. If the debtor is misled concerning the extent of his power to redeem, the notice is not merely incorrect — the entire purpose of the notice is unclermined. The misleading notice becomes no notice at all. Therefore, since the only notice given the debtor in this case misrepresents her redemption rights, we conclude it was unreasonable as a matter of law.
In view of plaintiff s failure to provide reasonable notification to the debtor, we conclude the sale of collateral was not commercially reasonable. We therefore need not consider the other allegations made by defendant regarding the commercial reasonableness of the sale. The court erred in granting plaintiff a deficiency judgment because it failed to act in a commercially reasonable fashion as a matter of law. K.S.A. 16a-5-103(l).
II. Scope of Relief
In addition to disputing plaintiff s claim to a deficiency judgment on the basis of K.S.A. 16a-5-103(l), defendant also sought damages pursuant to K.S.A. 84-9-507(1) and costs and attorney fees under K.S.A. 16a-5-201(8). K.S.A. 84-9-507(1) provides as follows:
“If it is established that the secured party is not proceeding in accordance with the provisions of this part disposition may be ordered or restrained on appropriate terms and conditions. If the disposition has occurred the debtor or any person entitled to notification or whose security interest has been made known to the secured party prior to the disposition has a right to recover from the secured party any loss caused by a failure to comply with the provisions of this part. If the collateral is consumer goods, the debtor has a right to recover in any event an amount not less than the credit service charge plus ten percent of the principal amount of the debt or the time price differential plus ten percent of the cash price.”
In Westgate, it was the existence of this statute which in part led the Court to conclude that a creditor should not be completely barred from receiving a deficiency judgment when he fails to conduct a commercially reasonable sale in a commercial transaction. The Court adopted the position which views U.C.C. § 9-507(1) as providing the exclusive remedy when a sale was not commercially reasonable. Thus, the court held that when a sale is not commercially reasonable, there is a rebuttable presumption that the value of the collateral was equal to the unpaid balance of the debt. If the creditor overcomes this presumption, the debtor is entitled to have the damages identified in K.S.A. 84-9-507(1) set off against the deficiency. However, in a case such as this one, where the deficiency judgment is barred by the UCCC, it is an issué of first impression whether the debtor may also assert a claim for damages based on K.S.A. 84-9-507(1).
Defendant contends she should be entitled to the amount prescribed by K.S.A. 84-9-507(1) when the collateral is consumer goods because this is a penalty which is to be awarded “in any event.” She claims she is entitled to receive $3,192.66 as the amount of the finance charge plus ten percent of the amount financed in addition to being relieved from liability for any deficiency by virtue of the UCCC.
A number of jurisdictions have considered whether a debtor should be entitled to the so-called “double whammy” sought by defendant when the creditor has acted in a commercially unreasonable fashion in a consumer transaction and the deficiency judgment was barred by the court’s interpretation of the UCC. See generally, 1 Fonseca, Handling Consumer Credit Cases § 5:14, p. 193 n.9 (3rd ed. 1986); Clark, Law of Secured Transactions ¶ 4.12[5] (1980) and Cum. Supp. No. 2 (1984). Some courts have granted the debtor the benefit of both the bar to the deficiency and the minimum damages provided by U.C.C. § 9-507(1), while others limit recovery to relief from the deficiency or the damages, whichever is greater. Compare Randolph v. Franklin Inv. Inc., Co., 398 A.2d 340 (D.C. App. 1979), and Wilmington Trust Co. v. Conner, 415 A.2d 773 (Del. 1980), with Northwest Bank & Trust Co. v. Gutshall, 274 N.W.2d 713 (Iowa 1979). However, we have found no cases considering the application of the minimum damage provision for consumer cases stated in U.C.C. § 9-507(1), when the deficiency judgment is barred by the consumer protection provisions of the UCCC rather than the UCC.
Kelley held that when provisions of the UCC and UCCC conflict, the provisions of the UCCC will control. However, there is no conflict inherent in the remedial provisions of the two laws. It could be argued that the statement of a special rule for consumer cases in U.C.C. § 9-507(1), when most consumer cases are also covered by the UCCC, reflects the legislative intent to permit both remedies. On the other hand, there are certainly transactions in which an expensive consumer product, such as a luxury automobile or a mobile home, would be covered by the UCC but would not meet the $25,000 ceiling for application of the UCCC. K.S.A. 1986 Supp. 16a-l-301. Therefore, the UCC provision may be intended to fill the gap when the essential character of the transaction is a consumer one but the UCCC would not apply.
Defendant contends U.C.C. § 9-507(1) and U.C.C.C. § 5-103(1) are intended to remedy different injuries and should be regarded as complementary and cumulative. However, both provisions are triggered by the creditor’s conduct in failing to meet the requirements of a commercially reasonable disposal of the collateral. The unreasonable sale of collateral inflicts only one injury on the debtor — the loss of the benefit he would have sustained if the sale had been properly carried out. Therefore, the debtor should only be entitled to the relief which best remedies that injury. Cf. Merchandise Nat’l Bk. of Chicago v. Scanlon, 86 Ill. App. 3d 719, 408 N.E.2d 248 (1980) (recovery allowed under UCC, TILA, and Ill. Interest Act for three injuries).
When the disposal of consumer collateral is commercially unreasonable but even a commercially reasonable sale would have resulted in an amount still owing, the UCCC bar against a deficiency judgment secures to the debtor the full protection of the UCC default provisions. In such cases, the bar to a deficiency will also convey a punitive message which will work toward future consumer protection. It is only when a commercially reasonable disposal of the collateral would have yielded a higher sum than the amount still owing that the debtor will not be fully protected from all injury from the violation of U.C.C. § 9-504. In such a circumstance, the debtor loses the benefit of the complete cancellation of his debt plus the surplus which could have been obtained if a proper disposal had been carried out. The debtor must be granted both the benefit of the bar to a deficiency and the damages provided by U.C.C. § 9-507(1) in order to obtain complete relief from the injury suffered.
We conclude that unless the commercially unreasonable conduct of the creditor causes the debtor in a consumer transaction to lose the benefit of a surplus which would have resulted from a commercially reasonable sale of the collateral, the remedy of the debtor is limited to the denial of a claim for deficiency judgment under the UCCC. The penalty provided in K.S.A. 84-9-507(1) for cases involving consumer goods does not apply when the transaction is covered by the UCCC and a commercially reasonable sale of the collateral would still have resulted in an amount owing by the debtor.
III. Claim of Unconscionability in the Sales Transaction
In addition to seeking to defeat plaintiff s claim for a deficiency judgment on the basis of K.S.A. 16a-5-103, defendant also alleged the sales contract was unconscionable, both procedurally and substantively. The district court did not specifically rule on defendant’s allegation of unconscionability, but in light of its decision to enforce the agreement, we must presume the court found all facts necessary to support its judgment. Celco, Inc. of America v. Davis Van Lines, Inc., 226 Kan. 366, 369, 598 P.2d 188 (1979).
The doctrine of unconscionability has been codified in our law in several distinct forms. For example, the sales article of the UCC provides that a court may refuse to enforce a commercial contract which it finds to be unconscionable. K.S.A. 84-2-302. The UCC provides no definition of the term but case law has identified a number of factors for the court to consider in deciding whether a transaction is unconscionable. Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 758-59, 549 P.2d 903 (1976). The Consumer Protection Act, K.S.A. 50-627, also prohibits unconscionability but in the context of a “consumer transaction” — a term which is very broadly defined. K.S.A. 50-624(c). The prohibited unconscionability may arise out of advertising, the terms of the contract, or debt collection practices. However, under both the UCC (K.S.A. 84-2-302[l]), and the Consumer Protection Act (K.S.A. 50-627[b]), unconscionability is a question of law for the trial court. Waggener v. Seever Systems, Inc., 233 Kan. 517, 522, 664 P.2d 813 (1983); Wille, 219 Kan. at 757. By contrast, the prohibition against unconscionable consumer credit contracts specifically states that it poses a question for the trier of fact. K.S.A. 16a-5-108(l) and (2). The unconscionability may arise in the setting of the contract’s negotation or in the fine print of the contract itself. In either case, if there is substantial competent evidence present to support the factfinder’s conclusion no unconscionability took place, the finding must be upheld.
Defendant’s claim of unconscionability is based entirely on the UCCC; she does not claim a violation of the Consumer Protection Act. Therefore, if the court’s conclusion is supported by substantial evidence, it must be affirmed. Defendant’s principal complaint is that the contract was presented by a party with superior knowledge and bargaining power, in a hurried fashion, and on a take it or leave it basis, with several critical terms left blank. There was no evidence directly contradicting defendant’s characterization of the contract’s execution, but plaintiff s manager testified that in the ordinary course of business, no buyer would be asked to sign an incomplete contract. The trial court must have found defendant’s testimony that she was indeed presented with a blank contract to be incredible. Defendant is not an inexperienced buyer and the evidence indicated several terms of the sale were open for negotiation. The actual wording of the contract includes a number of legal terms which are no doubt beyond the knowledge of most laypersons but these terms for the most part simply state UCC rules concerning sales and secured transactions. Defendant was not misled by any of this language; she testified she did not try to read it. While there was certainly evidence from which the court could have questioned the manner of the contract’s execution, the record does not justify the conclusion that a finding in favor of plaintiff was unsupported by the evidence.
Therefore, we conclude the court did not err in denying defendant any relief on her claim of unconscionability. In light of this conclusion, we need not consider defendant’s appellate claims for actual and punitive damages and costs and attorney fees premised on the allegation of unconscionability.
IV. Remaining Claims for Damages and Attorney Fees
Defendant also contends the trial court erred in denying her claim for a penalty under K.S.A. 16a-5-203(l) for the creditor’s alleged failure to comply with truth in lending and notice to cure requirements. Defendant received one notice to cure when she defaulted on a payment in January and she was not entitled to a second notice for the later default. K.S.A. 16a-5-lll(3). In addi tion, the claim of truth in lending violations relies upon defendant’s contention she signed a contract which failed to disclose the monthly payment and other pertinent terms. While the court did not specifically state the finding that this was untrue, the court must have disbelieved defendant’s characterization of the contract in light of its judgment. In view of the state of the record, this court is certainly not in the position to find a violation of the disclosure requirements of the UCCC.
Finally, defendant claims the court erred in denying her claims for costs and attorney fees pursuant to K.S.A. 16a-5-201(8). This provision states that whenever it is found that the creditor violated any of the UCCC provisions, the court shall award costs and attorney fees. This award is mandatory. United Kansas Bank & Trust Co. v. Rixner, 4 Kan. App. 2d 662, Syl. ¶ 7, 610 P.2d 116, aff'd 228 Kan. 633, 619 P.2d 1156 (1980).
K.S.A. 16a-5-103(l) essentially incorporates the default provisions of the UCC so that a violation of K.S.A. 84-9-504 is a violation of K.S.A. 16a-5-103(l). Therefore, in view of our conclusion plaintiff did fail to conform to K.S.A. 84-9-504 and was barred from obtaining a deficiency judgment under K.S.A. 16a-5-103(1), defendant is entitled to costs and attorney fees.
The court’s denial of relief on defendant’s counterclaims for unconscionability and violation of truth in lending and notice to cure provisions is affirmed. Insofar as the court granted plaintiff a deficiency judgment and denied defendant’s claim for costs and attorney fees, judgment is reversed. The case is remanded to the district court for judgment consistent with this opinion. | [
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Woleslagel, J.:
The defendant, Kevin G. Lake, directly appeals the sentence imposed following his guilty plea to a count of felony theft (K.S.A. 1986 Supp. 21-3701[a]) and a count of unlawful possession of a firearm (K.S.A. 21-4204[l][b]), and the denial of his motion to modify the sentence.
The information charged additional crimes and the guilty plea followed a plea agreement in which the State agreed to dismiss the other counts, to recommend minimum concurrent sentences, and to abstain from invoking the habitual criminal statute. One dismissed count related to theft of a firearm from the Sedgwick County Courthouse. The theft to which Lake pleaded guilty related to hashish, also stolen from the courthouse. Mark Simmons was charged in the same indictment with burglary and felony theft. At the time of the thefts, both Lake and Simmons were employed as janitorial workers at the courthouse.
With the judge free to accept the terms of the plea agreement or to reject them, he chose the latter and imposed consecutive sentences. For the theft, a class E felony, he pronounced a one-to-two year term. The possible sentence was a minimum of one year and a maximum of two to five years. K.S.A. 1986 Supp. 21-4501(e). For unlawful possession of the firearm, a class D felony, he pronounced a one-to-five year term. The possible sentence was a minimum of one to three years and a maximum of five to ten years. K.S.A. 1986 Supp. 21-4501(d)(2). The judge then ran the sentences consecutively, resulting in a controlling term of two to seven years.
Lake claims his sentence is invalid for two reasons: (1) The court abused its discretion in sentencing Lake to consecutive terms and by failing to modify the sentence because of its failure to consider the sentencing guidelines set out in K.S.A. 21-4606 and K.S.A. 1986 Supp. 21-4601; and (2) the court committed judicial misconduct which prevented a fair sentencing proceeding, thus constituting a denial of due process guaranteed by the Fourteenth Amendment to the United States Constitution.
Sentencing Guidelines Issue
Addressing the issues in order as stated above, we note that the pertinent part of K.S.A. 1986 Supp. 21-4601 provides that the particular circumstances and individual characteristics shall be considered in each case, and those who are not “dangerous offenders” should not receive more than minimum terms of imprisonment. K.S.A. 21-4606 supplements 21-4601 by providing seven nonexclusive factors a court should consider, if relevant, in setting “the lowest minimum term which, in the opinion of said court, is consistent with the public safety, the needs of the defendant, and the seriousness of the defendant’s crime.”
Relevant factors considered by the court included Lake’s extensive juvenile record, his conviction of an earlier burglary, a presentence report, and, on the motion to modify, a report from the State Reception and Diagnostic Center which spoke of poor school and work performance, a failed diversion opportunity, failure to accept the seriousness of his criminal acts, and his need of a work training program. It appears that the court considered and acted upon significant relevant factors in accordance with K.S.A. 21-4606.
A sentence imposed by the trial court will generally not be disturbed as long as it is within the statutory limits and within the trial court’s discretion, and the sentence is not the result of partiality, prejudice, oppression, or corrupt motive. State v. Richard, 235 Kan. 355, 366, 681 P.2d 612 (1984); State v. Crispin, 234 Kan. 104, 671 P.2d 502 (1983); State v. Maxwell, 10 Kan. App. 2d 62, 71, 691 P.2d 1316 (1984), rev. denied 236 Kan. 876 (1985). Lake’s sentence was within the statutory limits and, given the enumerated factors considered by the court, was also within the trial court’s discretion.
Lake complains the factors considered were not enunciated and he is right that it is the better practice for a sentencing judge to make a detailed statement of factors considered. State v. Harrold, 239 Kan. 645, Syl. ¶ 3, 722 P.2d 563 (1986). Failure to so state, however, “does not necessarily, in and of itself, demonstrate an abuse of discretion; each case must be separately considered on its facts.” Harrold, 239 Kan. at 650. Having so considered, we find no abuse of discretion.
Tudicial Misconduct Issue
Turning to the second claim of error, Lake contends he was denied a fair sentencing hearing because of judicial misconduct. The judicial misconduct claim is most impartially and accurately presented by reproducing the transcript as it relates to colloquy between court and counsel during the sentencing hearing after the judge spoke of considering “scuttlebutt about this crime around the courthouse.”
“MR. NEY: Well, I would only ask one question, Your Honor.
“THE COURT: You may.
“MR. NEY: The Court used the word scuttlebutt about this defendant.
“THE COURT: I said scuttlebutt about the crime.
“MR. NEY: I tliink scuttlebutt about the defendant.
“THE COURT: If I did say that, I’ll say right now I didn’t — but my memory is that I said about the crime. But either way, I didn’t intend it about him. Because I don’t know this man. I didn’t know who was charged when I heard the scuttlebutt.
“MR. NEY: I understand. What I would state to the Court; it was considering scuttlebutt it heard about this crime then?
“THE COURT: Right.
“MR. NEY: I would just ask the Court what that is?
“THE COURT: Oh, it’s about the gun of Judge Hodge’s. Which I don’t have to put that in the record but I will. That the gun more than likely, with the smile that I saw on Judge Hodge’s face, it was a gun that I think he had to pay for. If that was the truth. That’s why I referred to it as scuttlebutt. And of course you heard about a number of people involved. And read about it in the newspaper about somebody talking up in the joint about it. And it was talk about they were going to the State. And then what I’m saying is I was no virgin as to this case, when I got Mr. Lake’s case. But also the main point is that from the word go, which was an actual fact, was that it was janitorial people who were working in this courthouse, who had keys, who were responsible for the thefts. That’s the main point. And that’s the point that makes me not believe your client when he says that it was at home. And implies that he knew about this at both instances when Mark [Simmons] delivered it to him. When I look at the dates in the file, they’re different dates. One date is August 15th. The other date is October the 11th. Now, which makes me wonder, and he knew where it come from, and I bet he did. As far as I’m concerned, if he wanted to receive some consideration at this point, that was the time that he wanted to tell me what he wanted to change, as far as I am as a sentencing Judge, especially considering his past record. Now that’s what I mean.
“MR. NEY: Well, it would be my respectful statement to the Court that the Court is basing, this Court said it was even in part, its consideration here on so called scuttlebutt, or things read in the newspaper. I think that is improper.
“THE COURT: You’ve got a right to your thoughts. And surely you’re not maintaining that I’m going to base this sentencing just on what I have labeled scuttlebutt? Don’t grab onto a common word usage and try to defend your client with it, Mr. Ney. Now, if you want to put in the record that you’re maintaining that this Court is just considering the sentencing on the basis of scuttlebutt, you may do so.
“MR. NEY: Well I understand the Court’s statement was, at least in part, that was one of the factors.
“THE COURT: No. I didn’t say that. If a Court hears anything that involves anything concerning the defendant that he’s got to sentence, he’s to consider it; the truthful part of it. You don’t deny that this man worked in this building. Do you?
“MR. NEY: No.
“THE COURT: All right. I said that was the most important thing. He wants to tell me that he wants to change. And that you point out that he’s been so good since these charges. I get letters every day from people in there that I’ve sentenced and they’re Born-again Christians and they’re reading the Bible. And I can check with the jail staff and you don’t see that many Bibles. Now, am I suppose to disregard my right to use common knowledge of man and experience that I know? You will not succeed in depriving me of that, sir.
“MR. NEY: My problem with that, Your Honor, is obviously, I can’t come in this court and anticipate what you have heard outside.
“THE COURT: You don’t need to anticipate it. Just like you cannot anticipate my 62 years of living, sir.
“MR. NEY: Well, I don’t understand why the Court is raising his voice towards me, when it is—
“THE COURT: There are a lot of things that I found in dealing with you, Mr. Ney, that you don’t understand about this Court.
“MR. NEY: I think that the Court should recuse himself if it cannot fairly sentence.
“THE COURT: You may suggest anything that you want, Mr. Ney. I’m not surprised about that motion. Now, you give me a good reason why I should recuse myself. And what you do is, you take that up to the Upper Court because I’m going to complete with this. I’m going to complete this sentencing. And I don’t want to hear anything else out of you.
“MR. NEY: I’m sorry, Your Honor. You had my reason.
“THE COURT: I’m saying that you’re through because you’re not handling what I asked appropriately. If you want to attack this Court, you attack me on the appeals level sir. I’m not going to sit here and be abused by your tongue.
“MR. NEY: Well, I would state for the record, the Court is the one raising its voice at me, and not I at the Court.
“THE COURT: I have a natural heavy voice and I respond. There’s nothing new happening here that you don’t know about. But I’ll tell you, my words will be sustained by the Upper Court if you wish to take it. That will be your prerogative that I recognize. Just please recognize the Court’s prerogatives.
“MR. NEY: Your Honor, I’m always respectful of the Court.
“THE COURT: That the Court doubts.
“MR. NEY: If the Court doubts that, I don’t think that I have any business being here. Or my client shouldn’t suffer because of that.
“THE COURT: Mr. Ney, the Court could have the opinion that you have no business even practicing before any Court, —
“MR. NEY: Is that the Court’s opinion?
“THE COURT: ■— but that has nothing to do with my deciding about what should come or happen to this defendant.
“MR. NEY: Is the Court’s opinion that I am not competent to practice law?
“THE COURT: Mr. Ney, you prepare your record the way you want to prepare it for the Court of Appeals; if you know how. And we’ll leave it at that. Now, I’ll go on with the decision that I had made prior to this very distasteful discourse that you have caused.”
The State concludes these remarks do not represent “prejudice against defendant or his counsel” and do not show a viola tion of the Code of Judicial Conduct, Rule 601, Canon 3, 235 Kan. clxiii; and, even if it was violated, that alone does not entitle Lake to relief according to State v. Starbuck, 239 Kan. 132, 715 P.2d 1291 (1986). The State does concede there was one “unfortunate lapse,” but claims that any “unfortunate or ill-considered remarks by the court were brought about by defense counsel.” It concedes that “[a] hint of irritation did perhaps waft from the court’s replies,” a choice of words that might seem to be more “soft words” that sometimes “turneth away wrath” than words designed to give an impartial appraisal of the judge’s remarks.
Turning to Lake’s position as to these remarks, he claims it was error for the sentencing court to give any thought to newspaper articles or courthouse talk about the crimes. He claims that “unnecessary disparagement of defense counsel” shows a failure “to impartially and diligently perform the duties” of the sentencing court. In Lake’s view, he has not been accorded due process because of violation of Canon 3, which provides that a judge: (1) should “neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding” (Canon 3 A (4), 235 Kan. clxiv); and (2) should “be patient, dignified, and courteous to litigants, . . . lawyers, and others with whom he deals in his official capacity” (Canon 3 A (3), 235 Kan. clxiii).
Lake bases his appeal solely upon the language of the Canons and three cases, which we turn to now.
In re Sortor, 220 Kan. 177, 178, 551 P.2d 1255 (1976), was a censure proceeding against a magistrate judge whose in-court remarks were held to “not demonstrate any malevolent purpose or motive” but to display “temperamental actions, comments and outbursts” reflecting adversely upon the judiciary as a whole. The court stated, “It cannot be tolerated.” While the case holds a judge may be censured for such conduct, it does not support a claim that a judgment of sentence should be reversed for such conduct if the sentence is otherwise proper.
Lake, like the State, relies on State v. Starbuck, where the act of revoking probation was attacked because of alleged judicial misconduct by the same judge whose conduct is at issue here. The Supreme Court observed:
“Proceedings in court should be so conducted as to reflect the importance and seriousness of the inquiry to ascertain the truth. Throughout the hearing, Judge Watson made comments regarding the evidence submitted by the accused probation violator. During the hearing, the judge repeatedly took over the examination of the witnesses. Occasionally, the judge expressed to the attorney for the defendant his opinions and that his ‘patience was wearing thin.’
“Canon 3 of the rules relating to judicial conduct requires that a judge be patient, dignified, and courteous. 235 Kan. clxiii. A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law. He should exercise restraint over his conduct and utterances. If it becomes necessary during a proceeding for the judge to comment upon the conduct of witnesses, counsel, or the testimony, he should do so in a firm, dignified, and restrained manner, avoiding repartee and refraining from unnecessary disparagement of persons or issues.” 239 Kan. at 134.
Even so, the State points out that the conduct complained of was not sufficient to cause the action to be reversed. In Starbuck, our Supreme Court stated:
“Allegations of judicial misconduct during a probation revocation hearing must be decided on the particular facts and circumstances surrounding such alleged instances of misconduct. In order to warrant or require the granting of a new hearing it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party.” 239 Kan. at 134.
Lake also cites State v. Logan, 236 Kan. 79, 86, 689 P.2d 778 (1984), which centers upon whether there is an obligation of a judge to recuse himself when he has a son employed as an attorney in the district attorney’s office, but who takes no part in the trial. Failure to recuse, however, is not one of the two bases upon which Lake claims error and he did not file an affidavit to show grounds for recusal as required by K.S.A. 1986 Supp. 20-311d(a). Thus, we do not feel required to consider recusal. Nevertheless, we do so briefly for two reasons: First, it would be easy to understand a trial judge finally recusing himself under the circumstances in this case, voluntarily and without any motion, formal or otherwise, being made. Second, our Supreme Court has addressed recusal in two somewhat similar cases when we believe it was not required to do so.
The first of those cases was Logan, in which the affidavit was filed but held to be invalid for failure to “state the facts and reasons to support an allegation of bias.” 236 Kan. at 85. The case provided a two-step rule: Was there a duty to recuse? “If he did have a duty to recuse and failed to do so, was there a showing of actual bias or prejudice to warrant setting aside the judgment of the trial court”? Logan, 236 Kan. 79, Syl. ¶ 5; emphasis added.
The second of those cases was State v. Griffen, 241 Kan. 68, 734 P.2d 1089 (1987), where a trial judge referred to the male defendant as a “mean mother.” As in the present case, defendant filed no affidavit, but orally moved for recusal. The court held the effect of the remark was to be determined not by the litigant but by “ ‘the mind of a reasonable person with knowledge of all the circumstances.’ ” 241 Kan. at 72. The court concluded, “we cannot say that the unfortunate remarks demonstrate such partiality, prejudice, or bias that the sentence should be set aside and the defendant resentenced by another judge.” 241 Kan. at 72.
When Lake’s attorney suggested recusal, the trial judge asked for reasons and received no compelling reasons. At that early stage, in fact, it appears there were none. As the judge explained, the “scuttlebutt” he had heard related not to the defendant but to the crime and Lake had already pleaded guilty to the crime. As to anything the judge had heard or read in the newspapers about the crime, he indicated he limited his consideration to “the truthful part of it.” We interpret that to mean the facts inherent in the plea or otherwise properly supplied in the court proceedings. As to the inappropriate comments about Lake’s attorney, the judge stated “but that has nothing to do with my deciding about what should come or happen to this defendant.” We find no basis to question the truth of that assertion. We conclude that, as to Lake, there was no showing of bias or prejudice.
In so discussing Logan and Griffen, we have kept in mind that Logan found recusal requests invalid for failure of statutory compliance, but justiciable if alleging misconduct in failing to comply with our Code of Judicial Conduct and its purpose “to maintain public confidence in the integrity of the judicial process.” Logan, 236 Kan. at 88. Our holding, however, is based solely upon our conclusion, developed further hereafter, that, as to Lake, bias or prejudice is not shown. See Logan, 236 Kan. at 86, 88.
Returning, then, to the guidance furnished by Starbuck as to whether general misconduct requires or favors reversal, we first observe that reversal would more likely lie here than in Star- buck. The reason is simply that, if violation of probation terms is proven, termination of probation may be proper, a simple decision. Thus, the judge in Starbuck was operating in an area of restricted latitude of judicial discretion. The same is not true of the broad scope of judicial discretion available when the trial judge faced proper sentencing for Lake. Even so, we assume appellate review is governed by an identical controlling precept: “In order to warrant or require the granting of a new hearing it must affirmatively appear that the [judicial] conduct was of such a nature that it prejudiced the substantial rights of the complaining party.” State v. Starbuck, 239 Kan. at 134; emphasis added.
It would seem this is the view taken by most appellate courts. As stated in 66 C.J.S., New Trial § 24: “Irregularities in the trial of a cause are ground for a new trial only where they have occasioned injury to the complaining party.” This, in effect, is repeated in 66 C.J.S., New Trial § 25: “Misconduct on the part of the presiding judge has been classified as an irregularity in the proceedings of the court, but is not ground for a new trial . . . where it did not prejudice the moving party.” We find no departure from this rule, save for a few jurisdictions which have uncommon statutes.
Lake’s sentence was based upon the factors set out earlier herein, with some apparent weight being given to the judge’s belief that Lake misrepresented where he obtained what he unlawfully possessed, a view we believe to be reasonable. Another influence was the judge’s belief that Lake did not regard his transgressions as wrongful, a conclusion apparently shared by the Kansas Reception and Diagnostic Center. Thus, while the judge rejected the State’s sentencing recommendations, he still chose the lowest minimum and the lowest maximum for each of the two crimes. We do not believe that imposing consecutive sentences shows prejudice to “the substantial rights of the complaining party.” So, when the judge gratuitously forecast that “my words will be sustained by the Upper Court,” he was right — but only if “words” is considered to mean not the words he spoke but the sentences he imposed.
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Six, J.:
Plaintiff-appellant Dickinson, Inc. (Dickinson) brought this action, alleging that defendants-appellees Balcor Income Properties, Ltd. and its general partners (Balcor) breached a contract requiring Balcor to enter into a thirty-year lease with plaintiff. Dickinson appeals the trial court’s granting of; (1) Balcor’s motion for summary judgment; and (2) its motion for attorney fees in the amount of $45,813.85. This court finds no error and affirms the judgment on both issues.
On December 13, 1982, Balcor and Dickinson entered into an “Operating Agreement” under which Dickinson agreed to manage and operate a movie theater located in Hannibal, Missouri. The parties also agreed “on or before February 1, 1983, to enter into a long-term real estate lease.”
The Operating Agreement provided that the lease the parties agreed to sign would “at a minimum incorporate the following modifications to the Lease”:
“a. Annual rental of $17,730.00 with a 3% rental on box office gross above $400,000.00 a year.
“e. The lease term shall be for a period of thirty (30) years with one ten (10) year option, with option period rental to be negotiated or if not agreed to by arbitration.”
The Operating Agreement also provided that, if the parties were unable to agree on the other terms of the lease, the matter would be resolved by arbitration. The arbitrators, however, did not have the power to modify or change the amount of rent or the length of the lease term. In addition, the agreement contained a “no oral modification” clause, stating that the agreement could not be modified except by “an instrument in writing, signed by the party against whom enforcement of any such change ... is sought.”
Dickinson alleges that in January or February of 1983, Hoofnagle, a representative of Dickinson, and Bowers, a representative of Balcor, orally agreed to include a “film rental percentage clause” in the thirty-year lease to be signed by the parties. On appeal, Balcor denies that such an agreement occurred, but states that “the trial court properly assumed that [Dickinson’s] allegations regarding the oral modification were true” for purposes of considering Balcor’s motion for summary judgment.
Dickinson alleged the parties orally agreed that the theater rent would be reduced if Dickinson incurred a higher percentage of film rental than 48%. This oral agreement, if valid, could have reduced the rent on the property by up to $10,000.00 a year. The alleged oral agreement was never reduced to a written agreement.
Dickinson presented Balcor with a thirty-year lease containing the disputed film rental percentage clause. Balcor refused to sign it. Dickinson unilaterally terminated the Operating Agreement on May 25, 1983. After May 25, 1983, Dickinson never proposed to Balcor that the terms of the original Operating Agreement be implemented. Dickinson filed suit against Balcor, alleging Balcor had breached the provision of the Operating Agreement in which the parties had agreed to enter into the thirty-year lease. Balcor answered the petition, denying any breach of contract on its part, and counterclaimed for breach of contract by Dickinson. Balcor prayed for damages and attorney fees under the Operating Agreement. On February 13, 1985, Dickinson filed a first amended petition, increasing the damage claim to $4,401,277.00 and adding an additional cause of action for promissory estoppel. The first amended petition was not included in the record on appeal. The trial court apparently never entered a formal order permitting its filing. It is clear, however, that the trial court considered Dickinson’s claim of promissory estoppel. Balcor’s answer asserted the affirmative defense of the statute of frauds which Balcor claimed barred Dickinson’s action.
Balcor moved for summary judgment. The trial court concluded that the alleged oral agreement to modify the written contract to lease real property was unenforceable under the statute of frauds. The court further concluded that Dickinson’s equitable estoppel theory must fail because Dickinson did not rely, to its detriment, on Balcor’s promise.
After the trial court granted the motion for summary judgment, Balcor moved for attorney fees under a provision of the Operating Agreement allowing an award of fees to the “prevailing party.” The trial court determined that Balcor was entitled to recover attorney fees and entered a judgment against Dickinson in the amount of $45,813.85.
THE STATUTE OF FRAUDS
The trial court concluded that Dickinson brought this suit not to enforce the Operating Agreement as written, but to enforce the Operating Agreement as modified by the alleged oral agreement relating to the film rental percentage clause. Dickinson, on appeal, does not dispute this conclusion.
An agreement to execute a lease is within the statute of frauds if the lease the parties have contemplated entering into is within the statute of frauds; therefore, to be valid, the agreement to execute must be in writing. See Ingram v. Ingram, 214 Kan. 415, 419-20, 521 P.2d 254 (1974); Riffel v. Dieter, 159 Kan. 628, 638, 157 P.2d 831 (1945); White v. Green, 103 Kan. 405, 408-09, 173 Pac. 974 (1918); Robinson v. Smalley, 102 Kan. 842, 843,171 Pac. 1155 (1918); In re Victory Pipe Craftsmen, Inc., 8 Bankr. 635, 636 (Bankr. N.D. Ill. 1981) (applying Illinois law); O’Brien v. Hurley, 331 Mass. 172, 176, 117 N.E.2d 922 (1954), cert. denied 350 U.S. 940 (1956); Newkirk v. Moley, 343 S.W.2d 213, 216 (Mo. App. 1960); 2 Corbin on Contracts § 283 (1950).
The first question for resolution by this court is whether the lease the parties agreed to enter into was within the statute of frauds. The applicable statute provides:
“No leases, estates or interests of, in or out of lands, exceeding one year in duration, shall at any time hereafter be assigned or granted, unless it be by deed or note, in writing, signed by the party so assigning or granting the same, or their agents thereunto lawfully authorized by writing, or by act and operation of law.” K.S.A. 33-105.
The thirty-year lease which the parties agreed to execute is within the statute. Because the lease is within the statute, the Operating Agreement containing the agreement to execute the lease is within the statute and is required to be in writing.
Because the Operating Agreement had to be in writing under the statute of frauds, “any substantial modification of the contract must likewise be in writing and signed by the party to be charged therewith.” Riffel v. Dieter, 159 Kan. at 638. The trial court found, and Dickinson has conceded, that the alleged oral agreement pertaining to the film rental percentage clause modified the minimum rental provision contained in the Operating Agreement.
Dickinson alleged in its petition that Balcor breached the Operating Agreement by failing to sign the thirty-year lease as modified by the parties’ alleged oral agreement. However, that portion of the Operating Agreement was within the statute of frauds and any substantial modification of that portion of the Operating Agreement was within the statute of frauds. Because the alleged oral contract was never reduced to writing, Dickinson may not bring an action to enforce it. K.S.A. 33-106.
EQUITABLE ESTOPPEL
Dickinson contends the trial court erred in granting Balcor s summary judgment on Dickinson’s equitable estoppel theory.
The record on appeal contains no depositions, affidavits, admissions, or other evidence relating to Dickinson’s equitable estoppel theory.
“The burden is upon the appellant to designate a record sufficient to present its points to the appellate court and to establish the claimed error.” Johnson v. Baker, 11 Kan. App. 2d 274, 277, 719 P.2d 752 (1986) (citing State ex rel. Ludwick v. Bryant, 237 Kan. 47, Syl. ¶ 6, 697 P.2d 858 [1985]). The trial court concluded that Dickinson did not take any action in reliance upon Balcor’s alleged oral promise relating to the film rental percentage clause. Nothing in the record on appeal suggests otherwise. The trial court did not err in granting Dickinson’s motion for summary judgment on Balcor’s equitable estoppel theory.
ATTORNEY FEES
In Kansas, attorney fees are not allowed unless authorized by statute or agreement of the parties. Schuh v. Educational Reading Services of Kansas, 6 Kan. App. 2d 100, 101, 626 P.2d 1219 (1981). In the present case, Balcor sought attorney fees based on the following provision of the Operating Agreement:
“If any action be commenced by either of the parties hereto against the other for breach of any of the terms of [sic] provisions of this Agreement, the party prevailing in such action shall recover its reasonable attorneys’ fees as part of its damages.”
Dickinson first contends the trial court was without jurisdiction to award Balcor attorney fees because Balcor dismissed its counterclaim in which it requested attorney fees. Dickinson suggests the dismissal left the trial court without a “viable pleading” conferring jurisdiction on the court. The argument is without merit.
Dickinson, in its petition initiating this action, requested attorney fees. Balcor had originally requested attorney fees in its counterclaim, in accordance with the provision in the Operating Agreement. After summary judgment was granted to Balcor, Balcor moved to dismiss its counterclaim, expressly stating that it still desired “to pursue [its] remedy of attorney fees against the plaintiff.” Balcor also filed a motion for attorney fees.
There were two pleadings before the court: Balcor’s motion to dismiss the counterclaim, which expressly reserved the right to pursue the remedy of attorney fees, and the motion for attorney fees. While it is true a trial court has no jurisdiction to hear issues not raised by the pleadings or defined at the pretrial conference, a trial court may consider new issues raised by the evidence to which there is no objection. Febert v. Upland Mutual Ins. Co., 222 Kan. 197, 200, 563 P.2d 467 (1977). Here, there was a pleading requesting attorney fees before the court. In addition, there is no evidence that Dickinson objected to the trial court’s consideration of this issue.
Dickinson contends the contractual provision allowing the “prevailing party” to collect attorney fees requires that the prevailing party recover damages before fees may be awarded. Because Balcor did not recover any damages, Dickinson contends Balcor could not recover attorney fees.
The trial court concluded that the parties’ intent was clear from the language of the attorney fee provision. The parties intended that, in any action arising out of an alleged breach of the Operating Agreement, the prevailing party would recover its attorney fees. Balcor was not required to recover damages independent of the fees in order to be awarded fees.
“Regardless of the construction of a written instrument made by the trial court, on appeal the instrument may be construed and its legal effect determined by the appellate court.” Cornwell v. Jespersen, 238 Kan. 110, 116, 708 P.2d 515 (1985) (citing Hall v. Mullen, 234 Kan. 1031, 678 P.2d 169 [1984]). This is because the construction of a written instrument is a question of law, over which appellate courts have unlimited review. Home State Bank v. Johnson, 240 Kan. 417, Syl. ¶ 3, 729 P.2d 1225 (1987).
The cardinal rule in the interpretation of contracts is to ascertain the intent of the parties and to give effect to that intent. Johnson v. Johnson, 7 Kan. App. 2d 538, 542, 645 P.2d 911, rev. denied 231 Kan. 800 (1982). The attorney fee provision in the Operating Agreement contemplates an award of attorney fees “in any action . . . commenced by either of the parties [to the] party prevailing in such action.” Contrary to Dickinson’s argument, the prevailing party need not recover damages indepen dent of the fees, but, according to the contract, the fees are a part of the damages. The attorney fees provision indicates that Balcor and Dickinson intended that in any action arising out of a breach of the Operating Agreement, the prevailing party would recover its attorney fees.
Dickinson contends the trial court erred in not granting a jury trial on the issue of attorney fees. The argument is without merit.
It is true, as Dickinson argues, that when a jury trial has been demanded, the trial of all issues so demanded shall be by jury, unless the parties stipulate otherwise. K.S.A. 60-239(a)(l). However, “[c]onduct or acquiescence inconsistent with an intention to insist on a jury trial may constitute waiver thereof.” Westamerica Securities, Inc. v. Cornelius, 214 Kan. 301, 306, 520 P.2d 1262 (1974) (citing Elwood-Gladden Drainage District v. Ramsel, 206 Kan. 75, 476 P.2d 696 [1970]),
Dickinson did not request a jury trial on the attorney fees issue either prior to or at the hearing. Dickinson (1) allowed the issue to proceed through the evidentiary hearing without objection; (2) appeared at the hearing without objection; and (3) cross-examined Balcor’s witnesses concerning the reasonableness and amount of fees. Dickinson did not make any demand for a jury trial until its motion for new trial. See Elwood-Gladden Drainage District, 206 Kan. at 78. Dickinson may not complain of matters to which it has consented, or take advantage of error which it has invited or in which it has participated. Elwood-Gladden Drainage District, 206 Kan. at 78. The trial court did not err in denying Dickinson’s request for a new trial by jury on the issue of attorney fees.
Dickinson contends the amount of attorney fees awarded, $45,813.85, was “clearly erroneous.”
The amount of attorney fees to be awarded is a matter largely within the trial court’s discretion and will be overturned only upon a showing of an abuse of discretion. Hochman v. American Family Ins. Co., 9 Kan. App. 2d 151, 155, 673 P.2d 1200 (1984). The factors a trial court should consider in determining the amount of a reasonable attorney fee are;
“ ‘the amount and character of the services rendered; the labor, time and trouble involved; the nature and importance of the litigation or business in which the services were rendered; the responsibility imposed; the amount of money or the value of the property affected by the controversy, or involved in the employment; the skill and experience called for in the performance of the services; the professional character and standing of the attorney and the results secured.’ ” Hall v. Hamilton, 233 Kan. 880, 886, 667 P.2d 350 (1983) (quoting City of Wichita v. Chapman, 214 Kan. 575, Syl. ¶ 7, 521 P.2d 589 [1974]).
The application of these standards to the facts of this case reveals the trial court did not abuse its discretion in its award of attorney fees. Dickinson’s petition requested damages in the amount of $200,000, and that request was increased as discovery progressed. Substantial discovery was performed prior to Balcor’s motion for summary judgment. Three attorneys testified that the fees requested were reasonable. The trial court did not abuse its discretion in awarding Balcor attorney fees in the amount of $45,813.85.
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Abbott, C.J.:
The plaintiff, Eldon Kee, Jr., appeals from the entry of summary judgment against him and in favor of the defendants, Ewing Lofton and Lois Lofton. The trial court held that the statute of limitations barred the enforcement of a co-guaranty, and that an oral promise by the Loftons to pay their share of the note did not extend the statute of limitations.
When viewed as we must view a record where summary judgment has been entered (Professional Lens Plan, Inc. v. Polaris Leasing Corp., 238 Kan. 384, 390, 710 P.2d 1297 [1985]), the pertinent facts are as follows: Mid-America Plastics, Inc., gave a promissory note to the Bank of Commerce of Chanute (Bank) on November 14, 1977. The note matured on May 14, 1978. On the same day Mid-America Plastics executed the promissory note, the Loftons executed a guaranty, guaranteeing payment to the Bank “on any and all loans, notes, rediscounts, over-drafts, or any other indebtedness contracted by, through, or for the use, account or benefit of” Mid-America Plastics. There was no limit to the amount guaranteed.
On January 10, 1978, Eldon Kee, Jr., and his wife and Charles Cripps and his wife signed guaranties identical to the one signed by the Loftons. No reason was given as to why the Kees and the Cripps signed their guaranties a few months after the Loftons had signed theirs.
The record does not give the history of the note; however, in 1979 the corporation was in default, and the Bank made demand on Kee for payment on the guaranty. Kee signed a promissory note for $465,000, which is the amount Mid-America Plastics owed the Bank at that time. Neither Kee’s wife nor any of the other guarantors signed the note, or any subsequent note.
Kee executed renewal notes every three to six months and made payments on principal and interest in varying amounts and at irregular intervals. He paid $187,745.69 interest and $335,000 principal on the indebtedness prior to commencing this action on July 12, 1985, seeking contribution from the Loftons. The largest payment on principal was a $215,000 payment on May 7, 1981.
In his petition, Kee alleged the parties were jointly liable for any payments on the corporation’s indebtedness because of their guaranties and that the defendants had reaffirmed their obligation of contribution to Kee but had failed to contribute, and prayed for judgment against the defendants for one-half of Mid-America Plastics’ indebtedness already paid by him and for one-half of any further payments he would make.
The defendants answered and filed a motion for summary judgment, asserting the applicable statute of limitations was five years from the date Kee executed his first promissory note to the Bank. Kee then filed a memorandum in opposition to defendants’ motion for summary judgment, alleging that a certain oral promise by Loftons tolled the statute of limitations.
The transcript of the hearing on defendants’ motion for summary judgment is not contained in the record on appeal. The trial court found that the statute of limitations began to run on the date Kee executed his first promissory note to the Bank on August 2, 1979, that the oral promise by Loftons to contribute, made after that date, did not toll the statute, and that, since more than five years had elapsed, defendants’ motion for summary judgment was sustained.
The dispositive question in this case is when does the statute of limitations commence to run. The key to the trial judge’s decision on the question is finding of fact No. 2, which reads:
“The facts show that in the past, Plaintiff and Defendants jointly guaranteed a note for a third party to a bank. The third party defaulted, whereupon the Plaintiff made a promissory note to pay the original note. Plaintiff thus takes the rights of the bank against the Defendants, his co-guarantors. The date that that was done was August 2, 1979.”
If that finding is sufficient to support summary judgment, it must be because the Loftons set those facts out in their statement of uncontroverted facts and plaintiff failed to comply with Supreme Court Rule 141, 235 Kan. cx. Plaintiff did not file a timely pleading in opposition to summary judgment (it was out of time and filed two days before the hearing), nor did he separately number the paragraphs. The memorandum in opposition to the motion for summary judgment does contend plaintiff merely renewed the note, as opposed to purchasing it and extinguishing the corporate debt. The record before us gives no indication that defendants objected to plaintiffs unorthodox pleading, or that the trial court did not consider the pleading and facts set forth therein. Certainly, the deposition of Kee is not clear and contains conflicting testimony as to whether the note he gave to the Bank was a renewal note or was given in satisfaction of the corporate debt. The trial judge was correct in considering plaintiffs pleading, despite its irregularity.
Plaintiff s cause of action is for contribution, based on the written guaranty. Defendants’ defense is that plaintiff purchased the corporate note from the Bank and the statute of limitations commenced to run the day the note was given (August 2,1979). If defendants are correct, it is immaterial whether a 3-year or 5-year statute of limitations applied because both would have expired.
Perhaps a summary of applicable law would be helpful at this point.
A guaranty is a contract. A guarantor is not liable except under the terms of the guaranty. No cause of action on a guaranty arises until the debtor defaults. As soon as the corporation defaulted by failing to pay its obligation when it matured, a cause of action arose and the statute of limitations commenced to run against the Bank. Clearly, the Bank’s cause of action on the guaranty contracts has expired and the Bank must look to Kee’s last note for payment.
The issue before us, however, takes the next step. That is, does a statute of limitations bar Kee from recovering contribution from his co-guarantors?
The right to contribution is not based on the guaranty (in the absence of language showing the parties’ intent as to the proportion of the obligation each would bear). It is based on an implied agreement that if the guaranty is enforced, each guarantor will contribute his or her just proportion of the amount for which he or she might be held liable.
Contribution must be equally and ratably made. If one or more guarantors are insolvent, the solvent guarantors must each contribute the insolvent guarantor’s share in the same proportion. Appleford v. Snake River M. M. & S. Co., 122 Wash. 11, 210 Pac. 26 (1922).
Here, six persons signed as guarantors, and the record does not establish the insolvency of any of the parties. Thus, it would appear plaintiff is, at most, entitled to a one-third contribution from the Loftons (each having a l/6th obligation).
The guaranty of payment binds the guarantors to pay the debt at maturity in the event the money has not been paid by the principal debtor. Upon default by the debtor, the obligation of the guarantor becomes fixed.
In Kansas the guarantors remain liable on the guaranty even though the principal debtor could have defeated an action brought against him by interposing the statute of limitations as a defense. Bomud Co. v. Yockey Oil Co., 180 Kan. 109, 299 P.2d 72 (1956). The test as to a guarantor is not whether the statute of limitations has run on the debt between the guarantors and the principal debtor at the time the co-guarantor seeks contribution. If the statute of limitations has not run as to the principal obligation at the time the guarantor pays the debt, it is immaterial whether the statute of limitations subsequently bars the creditor from enforcing the debt against the principal debtor and the remaining guarantors. Leslie v. Compton, 103 Kan. 92, 95-96, 172 Pac. 1015 (1918).
The right to seek contribution does not arise until a guarantor has paid more than his or her share of the common obligation. Thus, the right to contribution is contingent until the guarantor pays more than his or her fair share. Cipra v. Seeger, 215 Kan. 951, Syl. ¶ 4, 529 P.2d 130 (1974). The statute of limitations runs separately on each payment made after the guarantor pays his or her fair share of the debt, and is computed separately on each payment from the date upon which it is made. Robinson v. Jennings, 70 Ky. 630 (1870); Bushnell v. Bushnell and another, 77 Wis. 435, 46 N.W. 442 (1890); 18 Am. Jur., Contributions § 104.
Since a cause of action for contribution is based on an implied agreement that is not in writing, it is governed by the three-year statute of limitations set forth inK.S.A. 60-512. Litwin v. Barrier, 6 Kan. App. 2d 128, 626 P.2d 1232 (1981).
Thus, the dispositive issue is whether plaintiff s cause of action is barred because the statute of limitations commenced to run when Kee signed and delivered his first note to the bank, or did the statute of limitations commence to run as to each separate payment made after plaintiff paid his fair share of the indebtedness? The record before us is incomplete, but in the absence of a court determination that one or more of the guarantors are insolvent, plaintiff s fair share would be l/6th of the allowable payments. Thus, even under a most favorable ruling, plaintiff could not receive contribution for all that he has paid in excess of his fair share.
In determining when the statute of limitations commences to run, Kansas seems to be in line with the majority of states as to what the test is. In 18 Am. Jur. 2d, Contribution § 14, the editors state:
“It is not necessary that the claimant’s payment be made in cash. Its equivalent, as, for example, the negotiable promissory note of the claimant or anything else which the creditor accepts as satisfaction, is generally sufficient. Indeed, if one of several parties equally situated has in any manner been made to bear a larger proportion of a common burden than his just share, ordinarily he is entitled to call for contribution and assistance. It should be remembered that a note or other negotiable instrument, to be equivalent to payment, must have been accepted by the creditor in satisfaction of the whole or more than the claimant’s fair share of the original obligation. If, for example, the original obligation was upon notes and the claimant’s note is accepted merely as a renewal, without canceling the old notes, the claimant is not entitled to contribution until he actually satisfies more than his share of the debt. And in general, where the creditor retains a right of action on the obligation for which a note is given, there is no satisfaction of the old debt. But it has been held that even a note executed in the name of an insolvent principal and merely indorsed by the plaintiff seeking contribution could be considered as payment where the payee of such note looked to such plaintiff for payment and not to the insolvent maker.
“Observation: Whether new notes are merely renewals of the old notes or whether the original notes are paid and discharged by the new ones depends upon the intention of the parties. The fact that the old notes were marked ‘paid’ and surrendered to the maker is not conclusive. The cause of action for contribution accrues at the date of payment, which in the former case is the date of payment o'f the new notes, and in the latter case, the date the new notes were taken in satisfaction of the obligation represented by the original notes.”
In Mentzer v. Burlingame, 78 Kan. 219, 97 Pac. 371 (1908), Mentzer, a co-surety on two promissory notes that were in default, gave a new note to the bank for the amount of both notes in default. Burlingame, also a co-surety, did not sign the new note. The bank sued Mentzer on the new note and took judgment against Mentzer. Mentzer sued Burlingame for contribution more than five years after the new note was delivered to the bank. The trial judge held the statute of limitations barred the claim for contribution.
The Supreme Court held it was error to hold the statute of limitations barred the claim, reasoning as follows:
“The original notes were simply renewed by the giving of the new note. This is shown conclusively by the evidence and findings of fact. No proof was offered which even tended to show an agreement between the bank and the makers of the new note that it should operate as payment. The bank retained the old notes, which were not stamped or marked ‘paid.’ Prima facie the giving of the new note was merely a renewal, and not a payment. The burden rested upon the defendant to show the contrary. [Citations omitted.]
“The statute did not begin to run until the cause of action for contribution accrued, and that was when the surety satisfied the debt. The action was not upon the note nor upon the judgment, but upon the implied promise for contribution. [Citations omitted.] A surety’s right of action for contribution from a co-surety accrues at the time he pays the debt. The statute of limitations does not begin to run against his right until such payment.” 78 Kan. at 220.
In Leslie v. Compton, 103 Kan. 92, the defendant, Compton, executed a note to a corporation. Thirty days later the plaintiff, Leslie, signed a writing guaranteeing payment of the note. After default, the corporation sued Leslie and obtained a judgment. Some fifteen years later, Leslie paid the judgment and then sued Compton. The Supreme Court said:
“The rule is that a cause of action in favor of a surety against the principal debtor does not accrue, and therefore the statute of limitations does not begin to run thereon, until payment has been made. [Citation omitted.] And ordinarily this rule is applicable to a guarantor.” 103 Kan. at 92-93.
“A surety may acquire a claim for reimbursement by paying a debt which is alive as to him, but outlawed as to the principal. [Citation omitted.] A guarantor who has become such at the request of the principal has the benefit of an implied promise of indemnity, and a new and independent cause of action arises thereon whenever he is compelled to make a payment, irrespective of the time of maturity of the original debt.” 103 Kan. at 96.
The court affirmed the trial court’s dismissal but did so on a basis not germane to the case before us.
In the case at bar, the evidence before the trial court is so scanty and incomplete that we are unable to determine what the $465,000 note encompassed. The original note was for $325,000 and indicates that it was paid by renewal. The note at issue in this case is for $465,000, and has written on it “assumed note.” Apparently the corporation had ceased its manufacturing operations by then and had disposed of some, if not all, of its equipment. It did have a contract to sell assets for $195,000, with at least $184,000 of that amount still due when the note for $465,000 was first signed on August 2, 1979. The contract’s significance is that it could bear on both the Bank’s and Kee’s intent as to whether Kee’s note was a renewal note or was accepted as full payment of the existing obligation, or obligations, of the corporation. Kee testified at one point that he signed the note because of his guaranty and because the Bank was pressing him to do so.
We are satisfied that it was error to grant summary judgment at this stage of the proceedings. It is a disputed point of fact what the intentions of Kee and the Bank were when the note of August 2, 1979, was executed, and the facts presented are such that a reasonable person could conclude that the note was merely a renewal note. If so, a three-year statute of limitations then applies to each separate payment made after Kee paid his proportionate fair share of the indebtedness. Thus, the trial court erred in granting summary judgment.
Based on the briefs and oral argument, we feel compelled to comment on Lindsey v. Zeller, 10 Kan. App. 2d 4, 690 P.2d 394 (1984), rev. denied 236 Kan 876 (1985). The trial judge gave no indication he relied on Lindsey, and we deem it inapplicable to the facts of this case. We do not deem Article 3 of the U.C.C. applicable. There is no evidence in the record that the parties to this suit ever signed the original negotiable instrument individually. They signed separate writings that guaranteed the corporation’s debts of any kind and without limit as to time or amount.
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Davis, J.:
The defendant, Marvin W. Johnson, appeals a conviction for attempted aggravated arson, K.S.A. 21-3719; K.S.A. 1986 Supp. 21-3301.
On the night of December 27, 1985, a man threw two Molotov cocktails through the window of a building housing the law offices of Patton and Davis at 15 West 5th Avenue in Emporia, Kansas. Part of that building contained residential apartments, including one that was occupied at the time of the crime. The Molotov cocktails consisted of empty McCormick vodka bottles filled with gasoline and plugged with rags. The rags on both bottles were burned, but the officer who arrived at the scene observed no smoke or fire.
An eyewitness identified defendant as the person who threw the lighted Molotov cocktails through the office window. The defendant’s fingerprints were on one of the Molotov cocktails, and two empty McCormick vodka bottles were found in a search of his home.
Michael G. Patton testified that defendant had terminated Patton’s services as an attorney in April 1985 because he was dissatisfied with the advice he had received. Defendant filed a small claims action against Patton to recover a $500 retainer fee; Patton counterclaimed for $96.25 additional attorney fees. According to Patton, the court entered judgment for him on both the claim and counterclaim.
Defendant offered an alibi defense. Richard Lee Euler and Verna Geiber testified that they had been with defendant on the night of the crime. Defendant did not testify. A jury convicted defendant of attempted aggravated arson. The court sustained the State’s motion to sentence defendant as a habitual felon. He was sentenced to a term of incarceration of twelve to twenty-five years.
On appeal, defendant claims that: (1) The evidence is insufficient to sustain his conviction for attempted aggravated arson; (2) the trial court erred by failing to instruct the jury on an essential element of the charge; and (3) the State’s alleged intimidation of his alibi witness violated his right to due process of law.
K.S.A. 21-3718 and 21-3719 provide as follows:
“21-3718. Arson. (1) Arson is knowingly, by means of fire or explosive:
“(a) Damaging any building or property in which another person has any interest without the consent of such other person; or
“(b) Damaging any building or property with intent to injure or defraud an insurer or lienholder.” (Emphasis added.)
“21-3719. Aggravated arson. Aggravated arson is arson, as defined in section 21-3718, and committed upon a building or property in which there is some human being.”
Defendant first contends that the crime of arson requires proof that the property is owned at least in part by someone other than the defendant. State v. Parrish, 205 Kan. 33, 468 P.2d 150 (1970). He argues that “any interest” in K.S.A. 21-3718(l)(a) means “any ownership interest.” At trial, the State did not present evidence that someone other than defendant owned all or part of the building, but established only that the Patton and Davis law firm leased the building from the owners. The State argues that “any interest” includes the interest of a lessee.
The question of whether a lessee has “any interest” in a building or property is one of first impression in this state. Only one Kansas case has considered the meaning of “any interest” in K.S.A. 21-3718(l)(a). In State v. Houck, 240 Kan. 130, 727 P.2d 460 (1986), the court held that neither a mortgagee nor an insurer of property damaged by arson held “any interest” in the property. The court reasoned that the legislature would-not have enacted 21-3718(l)(b), which requires the State to prove intent to injure or defraud an insurer or lienholder, had it intended for subsection (a) to protect the interests of insurers and mortgagees. 240 Kan. at 135. The State also alleged in the information that a lessee of one of the burned properties had an interest in the property. 240 Kan. at 133. Apparently, the issue of whether the lessee’s interest fell within the scope of the protection in subsection (a) was not raised on appeal.
In State v. Powell, 9 Kan. App. 2d 748, 687 P.2d 1375, rev. denied 236 Kan. 877 (1984), we held that in a prosecution for arson the State was not required to prove that the defendant “damaged a building knowing the owner thereof,” but that the defendant knowingly burned a building owned at least in part by someone else. 9 Kan. App. 2d at 751 (citing State v. Craig, 124 Kan. 340, 259 Pac. 802 [1927]). The issue of whether a lessee has “any interest” in a building or property was not before the court in Powell.
Defendant relies primarily upon case law interpreting prior arson statutes. K.S.A. 21-581, -582, and -583 (Corrick), which defined the crimes of first-, second-, and third-degree arson, required the State to prove that the victimized property was “the property of another person.” The supreme court interpreted “the property of another person” strictly. In State v. Parrish, 205 Kan. 33, the court rejected the State’s contention that arson was a crime against possession, as well as ownership, of property. The court noted, “It would appear that this court has considered the phrase ‘property of another to mean a fee estate. The fact that other parties may have some "interest’ in the property is not controlling.” 205 Kan. at 36. (Emphasis added.) Thus, the court concluded that “an ordinary hotel is not the property of the guests within the meaning of our arson statute (K.S.A. 21-581) and the owner of the hotel, by burning it, cannot be guilty of burning the property of another.” 205 Kan. at 36; see State v. Croshy, 182 Kan. 677, 324 P.2d 197 (1958) (dwelling house burned by owner was not the “property” of the mortgagee within the meaning of first-degree arson statute).
The State argues that the language in K.S.A. 21-3718— “building or property in which another person has any interest” — is significantly broader than “property of another person.” It contends that the legislature used the broader language to expand the property interests protected by the arson statute. The comments of the court in Parrish support the State’s argument. The court noted, “[W]hen the new Kansas Criminal Code takes effect July 1, 1970, an entire new and different definition of the crimes of arson will be in force. This decision will not, therefore, be a lasting precedent and an extended opinion is not justified.” 205 Kan. at 36.
We agree with the State that the legislature, by using “any interest,” intended to expand the types of property interests protected by the arson statute. The rule that penal statutes must be construed strictly means that ordinary words are to be given their ordinary meanings. State v. Thompson, 237 Kan. 562, 566, 701 P.2d 694 (1985) (citing State v. Dubish, 234 Kan. 708, 675 P.2d 877 [1984]). The ordinary meaning of “any” suggests an intent to include more than just afee simple interest in property. The legislature’s intent to broaden the scope of arson becomes particularly evident when “any interest” is considered against the narrow construction given “property of another person.”
The comments of the Kansas Judicial Council indicate that K.S.A. 21-3718 “is drawn from Illinois Criminal Code, 20-1.” An examination of Illinois law supports the State’s contention that K.S.A. 21-3718(l)(a) extends protection to a leasehold interest in real estate.
Section 20-1 of the Illinois Criminal Code, 111. Ann. Stat. ch. 38 § 20-1 (Smith-Hurd 1977), defines arson as follows:
“A person commits arson when, by means of fire or explosive, he knowingly: “(a) Damages any real property, or any personal property having a value of $150 or more, of another without his consent; or
“(b) With intent to defraud an insurer, damages any property or any personal property having a value of $150 or more.
“Property ‘of another means a building or other property, whether real or personal, in which a person other than the offender has an interest which the offender has no authority to defeat or impair, even though the offender may also have an interest in the building or property.” (Emphasis added.)
The Illinois courts repeatedly held that a lessee of a building or other property has an interest “which the offender has no authority to defeat or impair.” See People v. Rawls, 57 Ill. App. 3d 702, 373 N.E.2d 742 (1978); People v. Tisley, 20 Ill. App. 3d 145, 313 N.E.2d 204 (1974); People v. Johnson, 3 Ill. App. 3d 158, 279 N.E.2d 47 (1971); People v. Feinberg, 2 Ill. App. 3d 83, 276 N.E.2d 95 (1971); People v. Gaither, 103 Ill. App. 2d 47, 243 N.E.2d 388 (1968).
We hold that “any interest” in K.S.A. 21-3718(l)(a) includes a leasehold interest in real property. Substantial competent evidence supports defendant’s conviction for attempted aggravated arson.
Second, defendant contends that the trial court erred by failing to instruct the jury that the State must prove that he attempted to burn a building “in which another person has any interest.” The trial court instructed the jury that the State must prove “[t]hat the defendant intentionally damaged the building at 15 W. 5th by means of fire or an explosive.” The instruction deviates from PIK Crim. 2d 59.22, which states that the State must prove “[t]hat the defendant intentionally damaged the (building) (property) of _by means of (fire) (an explosive).”
Defendant did not object to the instruction given by the trial court. “The rule is well established in this state that a party may not assign as error the giving or failure to give an instruction unless he objects to the instruction stating the specific grounds for the objection. Absent such objection, an appellate court may reverse only if the trial court’s failure to give the instruction was clearly erroneous.” State v. Holley, 238 Kan. 501, 506, 712 P.2d 1214 (1986) (citing State v. Peck, 237 Kan. 756, 764, 703 P.2d 781 [1985]). “An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility the jury would have returned a different verdict.” State v. Maxwell, 234 Kan. 393, Syl. ¶ 5, 672 P.2d 590 (1983).
At trial, defendant did not dispute that Michael Patton and Steven Davis leased the building that he was charged with attempting to burn. No real possibility exists that the jury would have returned a different verdict had the court properly instructed it.
Finally, defendant contends that the State violated his right to due process by intimidating his alibi witness, Richard Lee Euler. At trial, Euler testified that Detective Lyle Armitage had threat ened to chargé him with peijury if he testified in defendant’s behalf.
Although defendant now claims that Detective Armitage’s conduct violated his right to due process, he originally argued that the detective’s alleged intimidation of Euler was “newly discovered evidence” and moved for a new trial.
The court held a hearing on defendant’s motion. At the hearing, Euler testified that on June 11, 1986, Detective Armitage and another detective had threatened to charge him with perjury if he testified for defendant. He stated that the detectives had come back to his residence on June 23, had offered to find him a job if he would change his testimony, and again had threatened to charge him with peijury.
Euler claimed that the threats had made him “extremely apprehensive” about clarifying testimony he had given at the preliminary hearing. At the preliminary hearing, Euler testified that he first had heard about defendant’s arrest on January 2, 1986. Defendant, however, was not arrested until January 12 — a discrepancy on which the State placed great emphasis at trial. Euler claimed that at the preliminary hearing he had meant that he first had heard of defendant’s arrest on January 22, not January 2, and that he had been afraid to change his testimony at trial because of the detectives’ threats. On cross-examination, however, Euler admitted that he had testified at trial that he was not sure of the date that he first had learned of defendant’s arrest.
The trial court found that defendant had failed to prove that the result likely would be different if Euler changed his testimony. In fact, Euler changed his testimony at trial. He testified that he “was wrong” when he had said at the preliminary hearing that he first had heard of defendant’s arrest on January 2. “It was,” he stated, “after January 2nd.”
The trial court did not abuse its discretion by denying defendant’s motion for a new trial. State v. Hobson, 237 Kan. 64, 697 P.2d 1274 (1985). Defendant has not shown that the actions of the detectives prejudiced him and deprived him of a fundamentally fair trial.
Affirmed. | [
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Briscoe, J.:
Plaintiff, Fred L. Mattox, brought an action against his former employer, the Kansas Department of Transportation (KDOT), alleging that his termination violated the Kansas Act Against Discrimination, K.S.A. 44-1001 et seq. Plaintiff appeals from the district court’s dismissal of his action for lack of jurisdiction.
Plaintiff was employed by KDOT as a civil engineer until January 21, 1983, when his employment was terminated. On February 18, 1983, plaintiff requested a hearing before the Civil Service Board (Board) to determine the reasonableness of his termination, pursuant to K.S.A. 75-2949(f). By separate letter to the Board, plaintiff specifically asked the Board to consider his EEO complaint form wherein he asserted his termination was an act of discrimination based on his physical handicap. On April 21, 1983, plaintiff initiated a second administrative remedy by filing a complaint with the Civil Rights Commission (Commission), which alleged discrimination on the basis of physical handicap.
On June 15,1983, the Board conducted a hearing to determine the reasonableness of plaintiff s termination. The Board issued an order on June 27, 1983, in which it determined that plaintiff s dismissal was reasonable. Plaintiff neither requested a rehearing of the Board’s order nor did he appeal the Board’s order to the district court as provided in K.S.A. 75-2929e(c). On March 8, 1984, the Commission issued a finding of “No Probable Cause” on plaintiff s complaint. On January 7, 1985, plaintiff filed an independent civil action for damages alleging violation of the Kansas Act Against Discrimination. Following a motion for summary judgment filed by KDOT, the trial court dismissed the action for lack of jurisdiction because plaintiff failed to exhaust his administrative remedies when he did not appeal the decision of the Board.
The issue presented in this case is whether an employee who appeals his termination to the Board must exhaust his administrative remedies by applying for a rehearing and appealing to the district court before bringing an independent civil action for damages alleging violation of the Kansas Act Against Discrimination. Although both plaintiff and KDOT argue on appeal that the trial court ruled the Board’s unappealed decision was given res judicata effect, which barred the civil action for damages, a careful reading of the memorandum decision and order indicates the trial court based its decision on plaintiff s failure to exhaust administrative remedies.
According to the exhaustion doctrine, no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted. Jarvis v. Kansas Commission on Civil Rights, 215 Kan. 902, 905, 528 P.2d 1232 (1974), quoting Myers v. Bethlehem Corp., 303 U.S. 41, 50-51, 82 L. Ed. 638, 58 S. Ct. 459 (1938). Several basic reasons for requiring the exhaustion of administrative remedies are comity, convenience, administrative efficiency, and the recognition of the separation of powers. Jarvis, 215 Kan. at 904-05.
Amicus cites Van Scoyk v. St. Mary’s Assumption Parochial School, 224 Kan. 304, 580 P.2d 1315 (1978), for the proposition that, once plaintiff had exhausted his remedies before the Commission, he should be able to file this present action pursuant to K.S.A. 44-1009. In Van Scoyk, the court held that, following a “No Probable Cause” determination by the Commission, an aggrieved party may bring an independent civil action in the district court based on an alleged violation of 44-1009. The court noted that, once a “No Probable Cause” determination is made, the purposes and requirements of the exhaustion doctrine are satisfied. Once the Commission issues a “No Probable Cause” determination, the statutory procedure is at an end since the aggrieved party may not appeal the determination.
Although the plaintiff here also received a “No Probable Cause” determination from the Commission, the present case differs from Van Scoyk in that, before filing a complaint with the Commission, plaintiff first appealed his termination to the Board. After he initiated his request for relief from the Board, he did not take it to its conclusion. After the Board reached its decision, plaintiff did not apply for rehearing or appeal to the district court. K.S.A. 75-2929e(c) states:
“Within ten (10) days after the date of the board’s final order, any party aggrieved by the final order of the board may apply for a rehearing in respect to any matter determined therein. . . . No appeal shall be taken from any final decision of the board by any party unless such party has made application for a rehearing as provided by this section.” Emphasis added.
Instead of exhausting his remedies before the Board, when plaintiff received the “No Probable Cause” finding from the Commission, he brought the present action for damages under the Kansas Act Against Discrimination.
In Pecenka v. Alquest, 232 Kan. 97, 652 P.2d 679 (1982), the plaintiffs filed an action for damages and other appropriate relief, alleging the elimination of their positions violated the statutory preference for veterans. Prior to filing the action, the plaintiffs had not appealed their dismissals to the Board. The court held the district court was without jurisdiction because plaintiffs failed to exhaust their administrative remedies by not appealing first to the Board. Although the present case differs factually from Pecenka in that here plaintiff filed a complaint with the Commission and has exhausted his administrative remedies under the Kansas Act Against Discrimination, both Pecenka and plaintiff failed to exhaust their administrative remedies before the Board.
This case is factually unique in that plaintiff initiated two independent administrative proceedings. Although he has exhausted his remedies under the Kansas Act Against Discrimination, he did not exhaust his remedies under the Civil Service Act. The exhaustion doctrine requires plaintiff first to seek a rehearing and then appeal the Board’s decision before he may bring an independent civil action for damages alleging violation of K.S.A. 44-1009. Although factually distinguishable from the present case, both Pecenka and Van Scoyk support the general principle that administrative remedies must be exhausted before initiating a civil action for damages.
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Davis, J.:
Esley Earl Schmidt and Mildred Ruth Schmidt appeal from a summary judgment in a tax foreclosure action filed by the Osage County Board of Commissioners (Board) pursuant to K.S.A. 79-2801 et seq. The Schmidts contend that the trial court erroneously refused to consider their defense of constructive fraud in the valuation and assessment of their property.
The dispositive issue on appeal is whether the Schmidts are precluded from raising their defense of constructive fraud because they failed to exhaust their administrative remedies. We hold that the Schmidts were required to exhaust the full and adequate administrative remedy provided in K.S.A. 1987 Supp. 79-2005 and 1987 Supp. K.S.A. 74-2426 and could not raise their allegations of constructive fraud for the first time in the tax foreclosure action.
The Schmidts owned three parcels of real estate in Osage County. Their property was valued in 1966 by J.M. Clemenshaw Company, an appraisal firm hired by the county. The county filed this action in 1986. The trial court found that the Schmidts had “not paid the taxes levied on their real property since the last tax sale by the county. At the day of [the last] sale, May 17, 1978, they redeemed the property at the last minute. Since then, they have not paid the taxes for the years 1977 to the present.”
In their answer, the Schmidts alleged that their property was “assessed at an assessment rate many times greater than other real property in Osage County, Kansas,” and that the Board has “acted in an arbitrary, capricious and unlawful manner, contrary to law and fact to such a degree that such actions amount to constructive fraud . . . and a denial of due process of law and equal protection of the law . . . and . . . subject them to an excessive and disproportionate share of the tax burden of Osage County, Kansas.” They asked the court to declare “invalid the averred assessments upon their real property and determine the proper and lawful taxes owed by them thereon.”
In “Additional Pretrial Contentions,” which accompanied their pretrial questionnaire, the Schmidts alleged that the ap-. praisal of their property was not based upon fair market value as required and defined by K.S.A. 79-501 and 79-503a and that the assessment is invalid because it does not comply with K.S.A. 79-1439. They also alleged that no “real and even reasonably thorough inspection” was made of their property; that the appraisal and assessment are so high as to amount to confiscation without due process of law; and that the method of assessment violates Article 11, Section 1 of the Kansas Constitution, as well as state and federal equal protection and due process clauses. They asked the court to declare K.S.A. 79-1451 unconstitutional and to “issue an order compelling the Osage County Assessor to reappraise all unclassified property subject to general property taxes in Osage County, Kansas, in order that the method of appraisal, assessment and taxation of said property conform to Article XI, Section 1, of the Kansas Constitution.”
“The well-recognized rule in this state is that where a full and adequate administrative remedy is provided in tax matters by statute, such remedy must ordinarily be exhausted before a litigant may resort to the courts.” State ex rel. Smith v. Miller, 239 Kan. 187, 718 P.2d 1298 (1986) (quoting Tri-County Public Airport Authority v. Board of Morris County Comm’rs, 233 Kan. 960, 966-67, 666 P.2d 698 [1983]). “All the policy considerations underlying the exhaustion doctrine are present whether a contention is advanced by a plaintiff or a defendant.” State, ex rel., v. Unified School District, 218 Kan. 47, 51, 542 P.2d 664 (1975).
In K.S.A. 1987 Supp. 79-2005, the legislature has provided a full and adequate remedy for Kansas taxpayers who claim the valuation or assessment of their property is illegal or void. The taxpayer is required to pay the taxes under protest and to file a written statement with the county treasurer specifying the grounds of protest, the exact amount of valuation or assessment that the taxpayer admits to be valid, and the exact portion of taxes being protested. K.S.A. 1987 Supp. 79-2005(a), (b). Within thirty days of filing the written protest, the taxpayer must file an application for refund with the Board of Tax Appeals (BOTA). K.S.A. 1987 Supp. 79-2005(e). The taxpayer is afforded a hearing before the BOTA within ninety days of application. K.S.A. 1987 Supp. 79-2005(h). After denial of a motion for rehearing, the final decision of the BOTA may be appealed pursuant to K.S.A. 1987 Supp. 74-2426. The remedy provided in K.S.A. 1987 Supp. 79-2005 and K.S.A. 1987 Supp. 74-2426 is available even to a delinquent taxpayer. See In re Tax Protest of Rice, 228 Kan. 600, 620 P.2d 312 (1980).
The Schmidts base their contention that the trial court was required to entertain their defense of constructive fraud upon K.S.A. 79-2803 and an early Kansas case, Whitney v. Morton County, 73 Kan. 502, 85 Pac. 530 (1906). In Whitney, the court held that the legislature intended to authorize the court in a tax foreclosure action to address allegations of fraudulent valuation even though the defendants had not made application to the county board of equalization. The court based its holding on G.S. 1901, § 7720, which contained language similar to that found in K.S.A. 79-2803:
“[I]t shall be the duty of such district court, in as summary way as possible, to investigate and to decide what taxes, charges, interest, and penalty thereon, to the date of the filing of the petition, shall have been legally assessed and charged on such tract, lot, or piece of real estate and to render judgment therefor . . . .”
The Whitney court held that this provision “does not mean that mere errors of judgment, mistakes or simple irregularities on the part of any of the officials may be corrected in the foreclosure suit. But an increment to taxes occasioned by fraud in the valuation of the property affected is so far illegal as to be within the contemplation of the statute.” 73 Kan. at 504.
Although this holding in Whitney has not been overruled, it has not been relied upon by any subsequent Kansas appellate court decision. Since 1941, cases involving contentions similar to those raised by the Schmidts have been adjudicated generally pursuant to 79-2005. See, e.g., Gordon v. Hiett, 214 Kan. 690, 522 P.2d 942 (1974); Garvey Grain, Inc. v. MacDonald, 203 Kan. 1, 453 P.2d 59 (1969); Addington v. Board of County Commissioners, 191 Kan. 528, 382 P.2d 315 (1963). In light of the taxpayer remedies enacted after Whitney, particularly K.S.A. 1987 Supp. 79-2005 and K.S.A. 1987 Supp. 74-2426, we do not believe that the above holding in Whitney remains viable law.
The legislative history of 79-2005 reinforces our conclusion that a taxpayer must exhaust administrative remedies and may not raise allegations of constructive fraud in the valuation or assessment of property for the first time in a tax foreclosure action. In 1980, the legislature amended 79-2005, eliminating the option of bringing an action in district court for recovery of taxes paid under protest. The objective of the amendment was to channel all tax matters through the BOTA. See State ex rel. Smith v. Miller, 239 Kan. at 189-90; Tri-County Public Airport Authority v. Board of Morris County Comm’rs, 233 Kan. at 964. A holding that a valuation or assessment may be challenged on the ground of constructive fraud for the first time in a tax foreclosure action would undercut this objective. Rather than paying taxes under protest and applying for relief through the BOTA pursuant to K.S.A. 1987 Supp. 79-2005, the taxpayer could await the county’s foreclosure action and challenge the valuation or assessment directly in the district court. Such deliberate avoidance of the scheme established by the legislature in K.S.A. 1987 Supp. 79-2005 and K.S.A. 1987 Supp. 74-2426 cannot be judicially sanctioned.
We hold that the Schmidts were required to exhaust the full and adequate administrative remedy provided in K.S.A. 1987 Supp. 79-2005 and K.S.A. 1987 Supp. 74-2426 and that the district court did not err by granting the Board’s motion for summary judgment.
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The opinion of the court was delivered by
Johnston, C. J.:
W. C. Schaeffer was convicted of maintaining a common nuisance in violation of the prohibitory liquor law, and was adjudged to pay a fine of one hundred dollars and to be imprisoned in the county jail for a term of thirty days. In his appeal he alleges error in the admission of testimony.
M. A. Waterman testified that he examined the records of the United States revenue collector, at Leavenworth, Kan., and made a correct copy of an entry on the record, which he produced and which showed that Schaeffer had paid the special tax as a retail liquor-dealer at Kansas City. The examined copy was admitted in evidence. It is argued that the original record was the best evidence, and if that could not be produced then, under sections 372 and 385 of the code (Gen. Stat. 1901, §§ 4820, 4833), a copy or exemplification, duly certified by the officers having custody of the original, should‘have been produced. The state contends that the rules governing the United States revenue officers, of which notice must be taken, preclude the taking of the records out of the office or the furnishing of certified copies of them; that the statutory methods of proving records are not exclusive; that the examined copy was the common-law method of proving records; that the common law is in force in aid of our statutes; and that an examined copy of entries in the collector’s office is competent evidence. This contention is substantially correct. In The State v. Pendleton, 67 Kan. 180, 181, 72 Pac. 527, it was ruled that “entries in public records may be proved by examined copies made by persons not having their official custody.” (See, also, Cooper v. Armstrong, 4 Kan. 30.) In the case of The State v. Nippert, ante, p. 371, the identical question was decided, and in determining the case Mr. Justice Graves said:
“We think this copy admissible. Neither the original nor a certified copy thereof was obtainable. Recourse to secondary evidence was therefore necessary, and under such circumstances secondary becomes the best evidence. At common law such evidence, under such circumstances, was always admissible. In fact, sworn copies were generally regarded as of equal value with copies certified to by the legal custodian of the original document or record. The common-law rule in this respect has not been displaced by the statutes authorizing other methods of proof. These statutes are simply declaratory of the common law.”
In some jurisdictions the certified copy is given a preference over a sworn or examined copy, while no preference is allowed in others. Since neither the originals nor certified copies were obtainable in this instance, it is unnecessary to consider whether there are any grounds for preference under our statutes. It is enough to determine that under the circumstances the examined copy was admissible. (State v. Collins, 68 N. H. 299, 44 Atl. 495; Thurman v. The State, 45 Tex. Cr. Rep. 569, 78 S. W. 937; Terry v. State [Tex.], 79 S. W. 319; Smithers v. Lowrance, 35 Tex. Civ. App., 79 S. W. 1088; 2 Wig. Ev. § 1273; 1 Greenl. Ev. § 91; 17 Cyc. 323.)
An application, purporting to have been signed by Schaeffer, for gas to be used on the premises at No. 34 Kansas avenue, in Kansas City, and in which it is stated that the place is occupied by him as a saloon, was received in evidence. As originally prepared it appears that the word “restaurant” was used, but it was crossed out and over it the word “saloon” was written. It is argued that the alteration, without explanation, destroyed the value of the paper as evidence. Changes or interlineations in the paper signed by the defendant may have weakened the evidence, but did not render it inadmissible. Whether the place was designated as a “restaurant” or a “saloon” is not very material. The testimony was competent, as it tended to show that Schaeffer was in charge of the particular place where the alleged nuisance was maintained.
There is testimony which fairly supports the verdict that Schaeffer was keeping the place, and that it was a common nuisance. There is nothing substantial in the claim of variance.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
On September 26, 1898, a decree was rendered by the district court of Shawnee county declaring and marshaling a number of liens against a piece of real estate, which was ordered to be sold for their payment. Among those liens was one for $494.65, awarded to Sarah E. Weidler, as the administratrix of the estate of Wilhelm Weidler, deceased, based upon a right that had accrued in the lifetime of such decedent. Afterward the Topeka Woolen-mill Company acquired title to the real estate affected, and bought up all the liens excepting that of the Weidler estate. It claimed that it had also compromised and satisfied that one, and therefore asked that an order be made directing the sheriff, instead of selling the property, to make a conveyance to the company. Such an order was accordingly made, but as the claim that the Weidler lien-had been satisfied was disputed the sheriff’s deed was directed to be made, and was made, subject to whatever rights the Weidler estate might have, as should thereafter be determined. On September 9, 1903, W. H. Van Dusen, having procured from the administratrix an assignment purporting to transfer the lien to him, began a suit against the company to have it declared and enforced. Upon a trial a judgment was rendered for the defendant, from which the plaintiff prosecutes error.
The defendant in error suggests various theories upon which the decision may have been based, and, as there is nothing in the record to disclose upon which of them the trial court in fact proceeded, it will be necessary to examine each. It contends that the decree granting the administratrix a lien was not such a judgment as would support an independent action. No good ground is apparent fob the contention. The decree was a final determination of the rights of the various parties, providing for a sale of the property and the disposition of the proceeds. As it originally stood there was no occasion for suing upon it, but when the • court ordered that the sheriff, instead of selling the property, should deed it to the mill company subject to the disputed rights of the Weidler estate, a new action became the natural and appropriate, if not the only, means of determining the question so reserved! The statute of limitations was invoked by the defendant, perhaps because the substance of the decree of September 26, 1898, had been announced on the 6th of that month. The judgment rendered on the 26th, however, was complete in itself, and can be regarded as originating a right capable of enforcement by action. In the brief of defendant in error it is claimed that the plaintiff did not satisfactorily prove that the lien had been assigned to him by the administratrix, and oral testimony is cited as bearing on the question. No such issue was involved. A written assignment was pleaded and its execution was admitted because not denied under oath. The testimony referred to related to an entirely different matter.
The undisputed facts therefore establish a prima facie case for the plaintiff, and he was entitled to recover unless the evidence relied upon by the defendant, if accepted as true, showed an affirmative defense. This evidence, although contradicted in important particulars, may for present purposes be deemed to have shown this state of facts: Representatives of the mill company entered into negotiations with the attorney of the administratrix as a result of which it was agreed that the claim against the real estate should be compromised and satisfied by the payment of $200; this sum was accordingly paid to the attorney; the administratrix took no part in the arrangement, and the probate court made no order concerning it; no release of the lien was executed then or later, the attorney of the administratrix stating that he could not get the matter fixed up at once because he could not reach his client; as security against any failure to carry out the agreement, however, he procured an assignment to be made to the mill company of a judgment for $959.89 which had been rendered against Wilhelm Weidler in his lifetime and which had been revived and allowed as a demand of the fourth class against the estate; he represented that this judgment was superior to any other claim against the estate and could be used as a set-off against the lien or judgment which the compapy desired to have discharged; at this.time no other claim had been exhibited against the estate, but later two were presented and allowed as demands of the second class, one for $325 in favor of the attorney of the administratrix, and the other for $228 in favor of W. H. Van Dusen, the present plaintiff.
Upon these facts the defendant contends, first, that the claim against its property was extinguished, and, second, that if this is not the case then it was entitled to set off against this claim the demand against the estate which had been assigned to it. The first contention fails because the compromise, even if acquiesced in by the administratrix, could not become effective without the approval of the probate court. (Ætna Life Ins. Co. v. Swayze, Adm’x, 30 Kan. 118, 1 Pac. 36.) The second also fails. The estate was insolvent, the lien in question being its only asset. The mill company could not avoid the payment of the debt it owed to the administratrix by buying at a discount after the death of the decedent a claim against his estate which accrued in his lifetime. (Biscoe v. Moore et al., ad., use, &c., 12 Ark. 77; Cook, Administrator, v. W. Y. & John T. Lovell, 11 Iowa, 81; Adminstratrix Schmidt v. W. and E. Crafts, 2 Brev. [S. C.] *266; Mitchell v. Rucker, 22 Tex. 66; Happoldt v. Jones, Harp. [S. C.] 109; 2 Woerner, Am. Law of Admin., 2d ed., § 398.)
It is argued that to permit the off-set could prejudice no one but the holders of the two claims which had been allowed as demands of the second class; that one of these claims — that of the attorney of the administratrix — should be excluded from consideration upon principles of equitable estoppel, and that the other should be ignored because it showed upon its face that the statute of limitations had run against it before it was presented to the probate court. The challenge of the attorney’s claim need not be considered, for that directed against the other one is manifestly bad. The allowance of the demand was in effect a judgment, and the question of the statute of limitations cannot be raised in a collateral attack upon it. It follows that the judgment must be reversed, and the cause remanded for further proceedings in accordance with the views here expressed.
All the Justices concurring. | [
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Per Curiam:
The only question in this case which has not been disposed of by the decision in the case of Nagle v. Tieperman, ante-, p. 32, is the contention that the tax deed is void on its face because of a misdescription of the land. The land in controversy is the southeast quarter of section 31, township 22 south, of range 13 west of the sixth principal meridian, containing 160 acres, more or less. This is the description under which it appears to have been assessed, advertised, and sold, and the description which is contained in the deed. It is true the form of the tax deed is intended to be used, if necessary, for the conveyance of several distinct tracts of land, and in some places it contains such expressions as “each separate tract or parcel of said real property,” “separately exposed to public sale at the county seat” and “each one of the separate tracts or parcels . . . above described,” and similar expressions which would be proper in a tax deed where several tracts were actually conveyed; but the land in dispute is a single tract, and all that matter in the deed which would be proper if several tracts were actually included may be regarded as surplusage, and does not invalidate the deed.
The judgment is therefore reversed on the authority of Nagle v. Tieperman, supra. | [
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The opinion of the court was delivered by
Johnston, C. J.:
B. F. Briggs was convicted "of obtaining money from Henry Mattox by means of false and fraudulent pretenses. In the information it was charged, in substance, that Briggs represented that he was a loan agent, engaged in loaning money on real estate; that he was financially responsible and worth from $45,000 to $60,000; that he had under his control $500,000 to loan upon farms, and that he would make Mattox a loan of $3000 on his farm, at an interest rate of five per cent, and a. commission of $120, one-half of which was to be paid at once and the balance when the loan was completed; and that, relying on these representations, Mattox contracted for the loan and sent Briggs a draft for $60, the value of which was realized by Briggs. It was alleged that the representations were false and fraudulent; that Briggs had no money to loan and was not engaged in making loans on farms; that he had neither money nor credit, but was wholly insolvent; and that he never intended to effect a loan, but made the false and fraudulent representations with the intent to cheat and defraud Mattox out of the draft and the $60 obtained upon it. By motions to make definite and certain and to quash appellant challenged the sufficiency of the information.
The motion to make an information definite and certain is an anomaly in criminal procedure. Ordinarily an indictment or information which fails to particularize or lacks in fulness of statement is open to attack by a motion to quash. Courts sometimes require specification of particular things in what is known as a bill of particulars, but the making of such an order is largely within the discretion of the trial court. (Hughes, Crim. Law & Proc. § 2879; 1 Bishop’s New Crim. Proc. § 643.) If the motion to make definite and certain were permissible, or should be treated as a motion for a bill of particulars, the court would not have been justified in allowing it. The supposed defect is that the information did not disclose whether the application of Mattox for a loan of money was in writing or only an oral one. The application was a mere incident in the transaction, and so far as the offense is concerned it is wholly immaterial whether it was written or oral. (The State v. Baker, 57 Kan. 541, 46 Pac. 947.) It was not the basis of the false pretenses, and the money was not obtained by means of the application. The'important features of the offense charged were the false representations, made with intent to defraud, and the obtaining of money by reason of them, and these matters were fully stated in the information. It is the things said and done by Briggs, and not by Mattox, which are material and which formed the basis of the offense charged in the information.
Upon the motion to quash it is contended that the representations alleged are not material, and are mere promises to be performed in the future. It is true, as contended, that a mere promise to do something in the future, however false, is not an offense. “The false pretense relied upon to constitute an offense under the statute must relate to a past event, or to some present existing fact, and not to something to happen in -the future.” (In re Snyder, Petitioner, &c., 17 Kan. 542, 556.) Although some of the representations were mere promises, others were of existing facts, and are material. It was alleged that Briggs represented himself to be a responsible agent, engaged in making loans on real estate and to the farmers of southeastern Kansas, whereas he was not so engaged, and was not making loans on real estate to farmers. A misrepresentation as to the business in which a person is engaged, made for the purpose of defrauding another, and by which money or property is obtained, is a false pretense. It is a false pretense where a man falsely represents himself to be in a situation or business in which he is not. (Higler v. People, 44 Mich. 299, 6 N. W. 664, 38 Am. Rep. 267; Taylor v. Commonwealth, 94 Ky. 281, 22 S. W. 217; Commonwealth v. Stevenson, 127 Mass. 446; Pearce v. The State, 115 Ala. 115, 22 South. 502; The People v. Dalton, 2 Wheel. Cr. Cas. [N. Y.] 161; Thomas v. The People, 34 N. Y. 351; Hughes, Crim. Law & Proc. § 596; 19 Cyc. 401.)
Then, there were the representations that appellant had a large amount of property and was in good financial standing, whereas it is alleged that he was absolutely insolvent. Added to these was the representation, which was also negatived, that he had $500,000 at his command and under his control. These representations were not mere promises, nor can they be regarded as immaterial. (19 Cyc. 398.) That there may have been connected with them future promises or other matters of less consequence does not relieve the false pretenses' of their criminal character. It has already been determined that “the mere fact that a false pretense of an existing or past fact is accompanied by a future promise will not relieve the defendant or take the case out of the operation of the statute.” (The State v. Gordon, 56 Kan. 64, 67, 42 Pac. 346.) It is not necessary to a conviction that the false pretenses should be the sole inducement to the obtaining of the money or property; it is enough if they have a controlling influence, although some minor considerations may concur. It was said in In re Snyder, Petitioner, &c., 17 Kan. 542:
“It is not necessary, to constitute the offense of obtaining goods by false pretenses, that the owner has been induced to part with his property solely and entirely by pretenses which are false; nor need the pretenses be the paramount cause of the delivery to the prisoner. It is sufficient if they are a part of the moving cause, and, without them, the defrauded party would not have parted with the property.” (Syllabus.)
There is a contention that the information is bad for duplicity, because it charges that the pretenses were made for the purpose of obtaining both draft and money. It is said, too, that the draft was obtained in Crawford county, where the prosecution was had, while the money was obtained upon it in Labette county. Only one offense was charged, and it arose out of the single transaction of obtaining the draft for sixty dollars by false pretenses. The averment that he had collected the money on the draft did not state an additional offense, nor invalidate the information. (The State v. Pryor, 53 Kan. 657; 37 Pac. 169; The State v. McDonald, 59 Kan. 241, 52 Pac. 453; The State v. Meade, 56 Kan. 690, 44 Pac. 619.) Nor can there be a valid objection to the jurisdiction of the court. The false representations and pretenses were made in Crawford county, and the draft was mailed by Mattox to Briggs in the same county. It was received in Labette county, it is true, but the general rule is that the venue is in the county where the property is obtained by the false pretense. The draft was obtained from Mattox when he surrendered possession of it by placing it in the post-office, addressed. to the appellant. The post-office department is deemed to be the agent of the appellant in the same way that a common carrier would have been his agent if the draft had been given to it for delivery to him. {In re Stephenson, 67 Kan. 556, 73 Pac. 62; Commonwealth v. Wood, 142 Mass. 459, 462, 8 N. E. 432; Regina v. Thomas Simpson Jones, 1 Den. C. C. [Eng.] 551; Leech’s Case, Dears. C. C. [Eng.] 642; 1 McClain, Crim. Law, § 696.)
Appellant complains of the admission of the testimony of three witnesses to the effect that he had made the same representations to them he had to Mattox, and had conducted similar transactions in regard to loans on farms, but that he had not effected a loan. This testimony was doubtless admitted, and was admissible, for the purpose of showing knowledge of the falsity of the representations and guilty intent in making them. Briggs had held himself out as one who had made loans to farmers and who was able to make such loans. Evidence of the transactions with others tended to prove his fraudulent scheme; that he knew his representations to Mattox were false; and that he had made them with the intent to defraud. A fair statement of the rule is found in section 438 of Underhill on Criminal Evidence, where it is said:
“Evidence of similar' offenses, involving the making of other "false representations, is admissible against the prisoner to show that he was aware of the falsity of the statements made by him in the present instance, and that, knowing them to be false, he made them with the intent to deceive. Evidence of similar false pretenses is particularly relevant when it appears that the fraudulent act for which the accused is on trial does not stand alone, but is a part of a scheme, not merely to defraud one individual, but to swindle the community at large.” (See, also, The State v. Myers, 82 Mo. 558, 52 Am. Rep. 389; The State v. Jackson, 112 Mo. 585, 20 S. W. 674; DuBois v. The People, 200 Ill. 157, 65 N. E. 658, 93 Am. St. Rep. 183; Commonwealth v. Lubinsky, 182 Mass. 142, 64 N. E. 966; State of Iowa v. Dexter, 115 Iowa, 678, 87 N. W. 417; State v. Southall, 77 Minn. 296, 79 N. W. 1007; People v. Peckens, 153 N. Y. 576, 47 N. E. 883; Crum et al. v. The State, 148 Ind. 401, 47 N. E. 833; Carnell v. State, 85 Md. 1, 36 Atl. 117; Farmer v. The State, 100 Ga. 41, 28 S. E. 26; Rafferty v. State, 91 Tenn. 655, 16 S. W. 728; Tarbox v. The State, 38 Ohio St. 581; People v. Henssler, 48 Mich. 49, 11 N. W. 804; Wood v. The United States, 41 U. S. 342, 10 L. Ed. 987; Regina v. Rhodes, 68 L. J., n. s., [Q. B.] 83, 79 L. T. Rep., n. s., 360; Reg. v. Ollis [1900], 2 Q. B. 758, 83 L. T. Rep., n. s., 251; Hughes, Crim. Law & Proc. § 647; 19 Cyc. 443.)
Other objections are made to rulings on the admission of testimony, but there is nothing substantial in them. The requested instructions which the court refused were manifestly incomplete and incorrect' and the charge given by the court fairly presented the issues in the case to the jury. There appears to be sufficient testimony to support the verdict, and, no error being found, the judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
This was an action to recover upon a • judgment obtained by the plaintiff against the defendant in the state of Nebraska. The answer pleaded payment, and the facts' upon which defendant relied as payment were specifically set out in two separate defenses. One was an attempt to plead payment by a transfer of certain property to the plaintiff in satisfaction of the judgment; the other was an attempt to . plead payment by way of a novation of a debt owing to defendant from one Myron Tuttle.
The facts pleaded in the first.defense show that the property delivered to plaintiff was delivered to him as security for the judgment, and in the second defense it is not stated that plaintiff agreed to accept Tuttle as his debtor and release the defendant. The agreement between Tuttle and the defendant that Tuttle would pay plaintiff’s judgment is in writing, and is set out in the pleading, but the plaintiff was not a party to this agreement and there is no allegation that he at any time agreed to release his judgment against the defendant and in lieu thereof accept Tuttle as his debtor.
The court sustained a demurrer to this answer and this is the only error complained of. The demurrer was properly sustained, and the judgment is affirmed. | [
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Brazil, J.:
The State appeals the trial court’s ruling dismissing a habitual violator petition due to the failure of the Kansas Department of Revenue, Division of Vehicles, to certify the defendant’s record forthwith under K.S.A. 8-286 and the failure of the Sedgwick County District Attorney to file the petition within the one-year statute of limitation. K.S.A. 60-514. We reverse.
On June 5, 1987, the Sedgwick County District Attorney’s office filed a petition seeking to have Dennis Graham declared a habitual violator under K.S.A. 1987 Supp. 8-285. Attachments to the petition indicated the Kansas Department of Revenue, Division of Vehicles (Division), as required by K.S.A. 8-286, had certified to the district attorney on August 21, 1986, that its records showed Graham was a habitual violator under 8-285. After receiving a new address for Graham, the Division again certified those records on March 10, 1987.
At the hearing on the petition, Graham stipulated he had been convicted as follows: (1) on November 21,1983, for driving while his license was suspended; (2) on February 24, 1984, for driving under the influence of alcohol and/or drugs and while his license was suspended; and (3) on December 26, 1985, for leaving the scene of a non-injury accident. These convictions satisfy the requirements of K.S.A. 1987 Supp. 8-285 to make Graham a “habitual violator.” However, Graham claimed the State had taken too long to prosecute him under K.S.A. 8-286. He also claimed the last conviction was not certified as required by 8-286. The trial court dismissed the petition, holding the Division had not certified the records “forthwith” as required by K.S.A. 8-286 and the petition had been filed too late, after the one-year statute of limitation of K.S.A. 60-514 had run.
In its brief, the State asserts for the first time that Graham’s third conviction occurred not on December 26,1985, but instead on June 26, 1986, allegedly the date Graham was sentenced following the conviction. However, as the State concedes, this is not clear from the record on appeal. Thus, we will accept December 26, 1985, the date stipulated by the parties at trial, as the date of the last conviction.
1. Did the Division fail to certify Graham’s records forthwith? K.S.A. 8-286 provides in pertinent part:
“Whenever the files and records of the division shall disclose that the record of convictions of any person is such that the person is an habitual violator as prescribed by K.S.A. 8-285 the division forthwith shall certify a full and complete abstract of such person’s record of convictions to the district or county attorney of the county where such person resides, as disclosed by the records of the division .... Upon receiving said abstract, the district or county attorney forthwith shall commence prosecution of such person in the district court of such county, alleging such person to be an habitual violator.”
K.S.A. 1987 Supp. 8-285 defines habitual violator as a person who has been convicted three or more times of certain listed offenses within a five-year period. In reaching its decision to dismiss the petition here, the trial court explained its reasoning as follows:
“The legislature has established this as a civil redress of a wrong . . . [and] even though it’s captioned as a civil case, carries literally a penal result. Now, the statute says, and I quote, ‘The Division forthwith shall certify.’ . . . Not meaning to be facetious, I don’t think any way that it might have been scrivened would make any difference in the legislature’s intent, and that is that it is to be timely lodged against a citizen. Now, this was not lodged for a period of approximately 18 months. . . . I feel that the Vehicle Department should be strictly required to comply with the law.
“I’m going to make the finding that the Motor Vehicle Department has not complied forthwith as declared by K.S.A. 8-28[6], and that this show cause order should be and is dismissed.”
By counting all eighteen months from Graham’s third conviction to the filing of the petition, the court considered not only the delay in the Division’s action, which included the delay of more than six months between the Division’s first and second certification apparently caused by an incorrect or out-of-date address in the Division’s records, but also the district attorney’s delay in filing the petition after receiving the Division’s second certification of Graham’s record. Regarding Graham’s address, we note that K.S.A. 8-248 requires the holder of a driver’s license to notify the Division in writing of his new address within ten days whenever he moves. See State v. Moffett, 240 Kan. 406, 408, 728 P.2d 1330 (1986) (Division should send notice of suspension to address shown on application or license or to last address received under K.S.A. 8-248).
One previous case has considered the significance of the legislature’s use of “forthwith” in K.S.A. 8-286. In State v. Garton, 2 Kan. App. 2d 709, 709-10, 586 P.2d 1386 (1978), Garton was in prison when the Division certified his record to the county attorney, who waited thirteen months until Garton was released to file the habitual violator petition. In response to Garton’s claim the county attorney had not followed K.S.A. 8-286, the court said:
“The stated purpose of the act (K.S.A. 8-284) is not to benefit a habitual violator; rather it is to provide maximum safety for all people who use the public highways by depriving habitual violators of the privilege of operating motor vehicles on the public highways of this state. We view the term forthwith as being a directive to the county attorney to carry out his duty to the public by removing habitual violators from public highways at the earliest opportunity. The failure to do so could possibly result in a mandamus or ouster action. We do not view the legislative intent as being a directive to discharge the defendant if the county attorney fails to file the action forthwith. As we view it, the word forthwith is directory and not mandatory, for it gives the county attorney directions for the proper, orderly and prompt conduct in carrying out legislative intent and is not followed by words of absolute prohibition. Wilcox v. Billings, 200 Kan. 654, 657, 438 P.2d 108 (1968).
“In the absence of substantial prejudice, the lapse of time between a criminal act and the filing of charges is no defense if the charge is filed prior to the expiration of the statute of limitations. United States v. Marion, 404 U.S. 307, 30 L.Ed.2d 468, 92 S.Ct. 455 (1971); United States v. Freeman, 412 F.2d 1181 (10th Cir. 1969); Walters v. Williams, 474 P.2d 661 (Okla. Crim. App. 1970). Although not purely a criminal case, the case at bar was well within the statute of limitations.” 2 Kan. App. 2d at 710-11.
This interpretation of “forthwith” would apply to the statute’s directions to the Division as well as to district and county attorneys. In our case, Graham did not claim he had been prejudiced by the delay between his third conviction and the filing of the petition against him. Under Garton, absent some prejudice, dismissal is not an appropriate remedy for the Division’s tardiness. The trial court was wrong to dismiss the petition on the ground the Division had not forthwith certified its records to the district attorney.
Furthermore, it is questionable that the prejudice exception referred to in Garton is applicable to habitual violator actions. Five years after Garton was decided, our Supreme Court held that a proceeding under K.S.A. 8-284 et seq. is civil, so the State’s appeal was not barred although the trial court had found the evidence against the defendant to be insufficient. State v. Boos, 232 Kan. 864, 867-70, 659 P.2d 224 (1983). Thus, reliance on the prejudice exception barring prosecution in criminal cases before the statute of limitation had run would not be appropriate.
In civil cases, “[t]he rights of a state are not lost through laches, estoppel or inaction of public officials.” Riggan v. Director of Revenue, 203 Kan. 129, 131, 453 P.2d 52 (1969). In Riggan, the court held the State could resume efforts to collect unpaid sales tax from a retailer even after taking no action for over seven years. 203 Kan. 129, Syl. ¶ 3. The State’s delay in filing the petition against Graham cannot serve to protect him from this action unless it is barred by some statute of limitation.
2. Is the State’s action barred by the one-year statute of limitation, K.S.A. 60-514?
Statutes of limitation do not run against the State unless specifically provided by statute. State ex rel. Stephan v. GAF Corp., 242 Kan. 152, 162-63, 747 P.2d 1326 (1987). “Statutes of limitation are measures of public policy and are entirely subject to the will of the legislature.” 242 Kan. at 162-63. K.S.A. 60-521 provides in part:
“As to any cause of action accruing to the state, . . . which cause of action arises out of any proprietary function or activity, the limitations prescribed in this article shall apply to actions brought in the name or for the benefit of such public body in the same manner as to actions by private parties, except in [certain actions not relevant here].”
Taken together, the general rule and 60-521 mean the civil statutes of limitation run against the State when its cause of action arises out of a proprietary function but not when the cause of action arises out of a governmental function. State Highway Commission v. Steele, 215 Kan. 837, 528 P.2d 1242 (1974).
The trial court here held the State’s cause of action against Graham was barred by K.S.A. 60-514, which provides in part: “The following actions shall be brought within one (1) year. ... (3) An action upon statutory penalty or forfeiture.”
In Board of County Commissioners v. Lewis, 203 Kan. 188, 190-95, 453 P.2d 46 (1969), the court held K.S.A. 60-521 and consequently K.S.A. 60-514(3) never apply to counties or the State because they do not engage in any proprietary activities, and added in dicta the activity at issue was governmental in any case. The specific holding was effectively overruled a short time later in Carroll v. Kittle, 203 Kan. 841, 845-51, 457 P.2d 21 (1969), where the court held the State would no longer be protected by governmental immunity when it was engaged in proprietary activities, thus recognizing the State does engage in such activities. However, Lewis is still authority for the view K.S.A. 60-514(3) does not apply to the State when its cause of action arises out of a governmental activity.
In State ex rel. Schneider v. McAfee, 2 Kan. App. 2d 274, 276, 578 P.2d 281, rev. denied 225 Kan. 845 (1978), this court said:
“Governmental functions are those which are performed for the general public with respect to the common welfare and for which no compensation or particular benefit is received, while proprietary functions are exercised when an enterprise is commercial in character or is usually carried on by private individuals or is for the profit, benefit or advantage of the governmental unit conducting the activity.”
The purposes of the habitual violator statutes, K.S.A. 8-284 et seq., are:
“(a) To provide maximum safety for all persons who travel or otherwise use the public highways of the state;
“(b) To deny the privilege of operating motor vehicles on such highways to persons who by their conduct, attitude and record have demonstrated their indifference to the safety and welfare of others and their disrespect for the laws of this state, the orders of its courts and the statutorily required acts of its administrative agencies; and
“(c) To discourage repetition of criminal acts by individuals against the peace and dignity of this state . . . and to impose increased and added deprivation of the privilege to operate motor vehicles upon habitual violators who have been convicted repeatedly of violations of traffic laws.” K.S.A. 8-284.
Given these purposes, it is clear the State’s cause of action here arises out of the governmental function of regulating highway safety rather than any proprietary function. The civil statutes of limitation are therefore not applicable to this suit.
Another potentially applicable statute of limitation is K.S.A. 1987 Supp. 21-3106. It indicates there is no time limit for murder, states a special time limit for certain sex crimes against persons under age sixteen, and then provides: “(3) Except as provided by subsection (4), a prosecution for any other crime must be commenced within two years after it is committed.” Subsection (4) provides for tolling the limitation period in certain situations. However, K.S.A. 1987 Supp. 21-3105 provides the definition of “crime” which applies to 21-3106(3). It states in pertinent part:
“A crime is an act or omission defined by law and for which, upon conviction, a sentence of death, imprisonment or fine, or both imprisonment and fine, is authorized or, in the case of a traffic infraction, a fine is authorized. Crimes are classified as felonies, misdemeanors and traffic infractions.”
K.S.A. 8-287 provides in part: “It shall be unlawful for any person to operate any motor vehicle in this state while any court order declaring such person to be an habitual violator and prohibiting such operation remains in effect.” KS.A. 1987 Supp. 8-288 provides in part:
“(a) No license to operate a motor vehicle in Kansas shall be issued to a convicted habitual violator:
“(1) For a period of three years from the date of the order of the court finding the person to be a habitual violator; and
“(2) until the privilege of the person to operate a motor vehicle has been restored.
“(b) At the expiration of three years from the date of any final order of a court finding a person to be a habitual violator and directing the person not to operate a motor vehicle in this state, the person may petition the court in which the person was convicted to have the privilege to operate a motor vehicle in this state restored. Upon such petition and for good cause shown, the court, in its discretion, may restore the privilege and may place restrictions on the privilege [as specified by other statutes].”
As declared by 8-287 and 8-288, the result of being found to be a habitual violator is not a fine, imprisonment, or death, so the Habitual Violator Act, K.S.A. 8-284 et seq., does not define a “crime” subject to K.S.A. 1987 Supp. 21-3106(3).
Except for K.S.A. 1987 Supp. 8-285, which defines habitual violator as a person with three or more convictions of specified offenses within a five-year period, we find no other applicable statute of limitation.
The trial court’s order of dismissal is reversed, the State’s petition is reinstated, and the case is remanded for further proceedings. | [
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Flood, J.:
This is a teacher contract nonrenewal case. The school board appeals from the trial court’s order awarding the teacher reinstatement and damages.
Jerome Hein, appellee, is a tenured teacher, certified in English, driver’s education, and health and physical education. During the 1982-83 school year he taught English, language arts, and driver’s education.
In the spring of 1983, the Board of Education, Unified School District No. 238 (Board), asked Mr. Hein to appear at a school board meeting to discuss his teaching contract. The Board president suggested that the Board was considering the creation of a new position which would be entitled “English, Speech, Drama and Creative Writing,” replacing the former English IV position which had been taught by a retiring teacher. Mr. Hein was asked if he was qualified to teach speech, and he indicated that he was not currently certified to teach a speech course.
In April of 1983, the Board of Education voted not to renew the contract of Jerome Hein. Mr. Hein sought, obtained, and participated in a due process hearing concerning his nonrenewal. In a previous declaratory judgment action, this court held that the original notice of termination was not in compliance with statutory requirements, but that this point was moot in view of the fact that the teacher had been afforded a due process hearing pursuant to his request. See Hein v. Board of Education, U.S.D. No. 238, 10 Kan. App. 2d 303, 698 P. 2d 388, rev. denied 237 Kan. 886 (1985).
The due process hearing panel unanimously recommended that if Mr. Hein would agree to become certified to teach speech and drama within two years, his teaching contract should be renewed. The Board rejected the finding of the three-member hearing panel and did not renew Mr. Hein’s contract. Mr. Hein appealed to the district court of Smith County, Kansas. The district court determined that the Board acted arbitrarily, capriciously, and unreasonably, and ordered the reinstatement of Mr. Hein, together with back pay and interest to the beginning of the 1983-84 school year. The Board appeals.
In its written justification for declining to adopt the due process hearing committee’s recommendation to retain Mr. Hein, the Board gave as its reasoning increased operational expenses; lost tax base; decline in enrollment; the teaching efficiency of combining a retiring staff position and Mr. Hein’s position into a course of English, speech, and drama; and a savings of $23,000 in one year alone. The Board further indicated that there was no nontenured teacher in these areas who could be released before Mr. Hein, and that Mr. Hein could not become certified in the speech and drama area in less than two or more years. Although the district court took issue with some of these conclusions of the Board, the real basis for the court’s decision was that it concluded that the classes taught by Mr. Hein during the 1982-83 school year were to be continued in the following year, with the only difference being a change in name of one course. The court further concluded the Board had hired, or would hire, a nontenured teacher to replace Mr. Hein to teach the subjects that he taught, thereby attempting to obtain a $6,000 savings by hiring a teacher with less than sixteen years of experience. The court found that these reasons were not in good faith, and that the action of the Board was therefore arbitrary, capricious, and unreasonable.
As the Board correctly points out, at the time the record was made in the due process hearing, the Board had not actually hired anybody to replace Mr. Hein, but simply had plans to do so. It is’ clear, however, that the Board’s plans called for the hiring of a nontenured teacher at a lower salary to replace Mr. Hein in the courses which he taught, with the only change being the modification of English IV to include speech and drama. The English IV course had been taught by the retiring teacher, and although speech and drama were not part of the curriculum requirements, she had taught elements of speech and drama in the English IV class in prior years. Mr. Hein was not certified in speech and drama, but could be provisionally so certified, and become fully certified in two years by taking additional courses, which he offered to do. In effect, the Board redefined Hein’s position to include language arts and English for grade seven, eight, nine and twelve, with English IV to include elements of speech and drama. Mr. Hein was certified to teach all of the English positions and, in essence, all of these positions were the same as in past years, with the exception of adding the element of speech and drama to the English IV course. By the elimination of the retiring teacher’s position and the combined new position, as well as other anticipated savings, the Board expected to save between $17,000 and $23,000, although it is arguable that only $6,000 of this could be attributable to the proposed replacement of Mr. Hein with a nontenured teacher. The English courses were required courses and Mr. Hein was certified to teach all of the English courses.
In Gillett v. U.S.D. No. 276, 227 Kan. 71, 605 P.2d 105 (1980), our Supreme Court determined that a tenured teacher may be nonrenewed only if good cause is shown, including any ground which is put forward by the school board in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the school board’s task of building and maintaining an efficient school system. (Syl. ¶ 1.) The decision also notes that the trial court may not substitute its judgment for that of the school board, and is limited to deciding whether the school board acted fraudulently, arbitrarily, or capriciously; the decision was substantially supported by the evidence; and the school board’s action was within the scope of its authority. (Syl. ¶ 3.) While noting that a bona fide reduction in staff does constitute good cause for nonrenewal, our Supreme Court went somewhat further in tenure cases in the decision of Coats v. U.S.D. No. 353, 233 Kan. 394, 400, 662 P.2d 1279 (1983):
“A mere good faith requirement, however, has the potential of emasculating the Teacher Tenure Law. When probationary teachers are retained while a tenured teacher certified to teach the same subjects is terminated, much of the theoretical protection of the Teacher Tenure Law is lost. This is true regardless of the school board’s good faith.”
The court went on to hold that the school board must conduct a good faith examination of the competence, interest, and training of all teachers in the area where the reduction of staff is to occur, and where there are tenured and nontenured teachers in the department and all are qualified, the nontenured teachers should be first terminated.
There were, of course, no nontenured teachers who could be terminated ahead of Mr. Hein to fill the newly created position with its new elements as defined by the Board.
We do not have any case in Kansas dealing with the issue of whether a school board acts in good faith when it makes a curriculum change which has the effect of replacing a tenured teacher with a nontenured teacher. Under different tenure statutes, other courts have dealt with this issue. In Farmer v. Holton Schools, 138 Mich. App. 99, 359 N.W.2d 532 (1981), it was held that a school board may not establish standards which would allow a candidate other than a qualified, tenured teacher to fill a vacancy, even if a nontenured teacher is more qualified, and specifically held that, with respect to the proposed position changes, the vacancy could not be denied to the tenured teacher unless there were substantial differences between the positions. In Peters v. Bd. of Education, 106 Ill. App. 3d 77, 435 N.E.2d 814 (1982), it was held arbitrary and capricious for a school board to include one course of journalism, which could have been taught by another teacher, in a teacher’s position so that she would not be qualified to teach the new position. In Catron v. Board of Education, 126 Ill. App. 3d 693, 697, 467 N.E.2d 621 (1984), the court said:
“Incidental reassignment of single courses to established teaching positions to maximize the use of staff and accommodate changes in enrollment, curriculum, and economy may be permissible — although as a result a tenured teacher is dismissed or prohibited from returning from leave — as long as [1] the tenured teacher is . . . not qualified to teach the course comprising the ‘position’ of less senior teachers, and (2) teaching assignments are not aligned in bad faith to avoid the existence of a ‘position’ which could be filled by a tenured teacher for whom dismissal was sought.”
Here, the Board, in the guise of good faith staff reductions for economic reasons, made one curriculum change consisting of one component of one course in an effort to eliminate a tenured teaching position in favor of a nontenured and lower-salaried person. The change was not one of substance, since elements of speech and drama had been present in the English IV course for some years. The Board made no effort to investigate or accept the teacher’s offer to become provisionally certified in the one component area. We think the trial court’s conclusion that the Board did not act in good faith, and was therefore arbitrary, capricious, and unreasonable, is the correct legal and factual conclusion to be drawn from the record.
Affirmed. | [
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Abbott, C.J.:
This is a direct appeal by defendant, Bruce M. Deavours. Defendant pled guilty to arson (K.S.A. 21-3718) and appeals the trial court’s refusal to modify his sentence.
Defendant was sentenced to imprisonment for three to ten years, the minimum term for a class C felony. K.S.A. 1986 Supp. 21-4501(c). Probation was denied. After the State Reception and Diagnostic Center (SRDC) submitted its report to the trial court, defendant filed a motion to modify his sentence, requesting that the SRDC recommendation of probation be followed. The court refused to modify the sentence by granting probation, and defendant appeals that refusal.
We do not have jurisdiction to hear a direct appeal concerning the denial of probation. K.S.A. 1986 Supp. 22-3602(a); State v. Hamilton, 240 Kan. 539, 731 P.2d 863 (1987); State v. Haines. 238 Kan. 478, 712 P.2d 1211 (1986). However, a direct appeal is allowed concerning the sentence imposed. State v. Hamilton, 240 Kan. at 540; State v. Harrold, 239 Kan. 645, 722 P.2d 563 (1986).
Defendant has couched his appeal as one from the original sentence and denial of his motion for modification thereof. He was sentenced to the minimum prison term for a class C felony and, under K.S.A. 1986 Supp. 21-4603(3), any modification of sentence must stay within the statutory limits for the offense. Barr v. State, 8 Kan. App. 2d 173, 175, 651 P.2d 975, rev. denied 232 Kan 875 (1982). A sentence can be reduced below the statutory minimum term with a recommendation from the Secretary oil Corrections (K.S.A. 1986 Supp. 21-4603[4]), but no such recommendation is present in this case. Absent a recommendation from the Secretary of Corrections, a motion to modify a minimum sentence would necessarily operate as a request for probation. The court’s refusal to modify the sentence is a denial of probation from which no direct appeal may be taken under State v. Hamilton, 240 Kan. 539. See State v. Van Cleave, 239 Kan. 117, 123, 716 P.2d 580 (1986), where it was noted that if defendant’s appeal from a minimum sentence was an attack on the trial court’s failure to grant probation rather than an attack on the sentence, the court would lack jurisdiction.
Dismissed for lack of jurisdiction. | [
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Larson, J.:
Susan Trager Pittman appeals the district court’s order granting summary judgment to McDowell, Rice & Smith, Chartered, and Donald E. Bucher in a legal malpractice action.
Pittman was divorced from John Trager in 1977. Trager was served by publication and the divorce was granted. Pittman understood by this action she could not have an enforceable child support order for the three children born during their marriage because Trager had not been served personally.
In July 1979, Pittman met with Bucher, an attorney in solo practice, regarding payment of a debt from her marriage to Trager. At that meeting, Bucher and Pittman discussed the possibility of obtaining child support for Pittman.
Following a second meeting several weeks later, Bucher accepted employment to have Pittman’s ex-husband served with a motion requesting child support and to obtain a child support order. Bucher felt he was “engaged as her counsel” and intended to charge Pittman a flat fee for his services if she could obtain money from her ex-husband.
In September of 1979, Trager was personally served with a motion requesting child support. In October 1979, Bucher, Trager, and Pittman met in Bucher’s office. Trager was afraid the judge would set the child support amount too high, and, after negotiations, agreed to immediately begin paying Pittman $50 a week.
Pittman understood Bucher would file a journal entry setting forth the agreement and arrange for the payments to be made through the court trustee’s office. Bucher remembered discussing the agreement with Pittman, but did not confirm it by letter. The agreement was never journalized nor was the motion ever dismissed.
The first-agreed upon payment was to be made October 26, 1979. Trager did not make this payment to Pittman or to the court trustee. Pittman did receive several payments directly from Trager between October 1979 and August 1981.
Pittman contacted Bucher approximately every other month between November 1979 and August 1981 to find out if Trager could be served with a contempt citation for repeated failure to regularly pay the child support.
In August 1981, Pittman went to the court trustee’s office to find out why she was not receiving regular monthly payments. Pittman was told by the trustee’s office that no journal entry was on file and she was advised to contact her attorney and ask that the journal entry be sent to the court. Pittman then called Bucher and requested he send the journal entry to the court trustee.
Bucher, who became an employee of the firm of McDowell, Rice & Smith, Chartered, in 1980, recalled that Pittman telephoned him in 1981 and requested a copy of her divorce decree. Bucher informed Pittman he would need to locate the file and requested that Pittman telephone back in several days. When Pittman again telephoned, Bucher had not located the file and suggested Pittman contact the clerk’s office and request a copy of the decree from the court. Bucher finally located Pittman’s file and, upon her fourth telephone call, explained he had the decree but it did not contain a child support order.
In 1982, Pittman complained about Bucher to the district judge and was referred to J. Paul Maurin, a local attorney. Pittman sought Maurin’s assistance in getting Bucher to file the journal entry.
Maurin telephoned Bucher and they agreed Bucher would refile the motion for child support.
Pittman wrote Bucher and stated if he did not take care of the child support matter she would file a complaint with the disciplinary administrator. Bucher wrote in reply that, although he had taken no action on the matter since Maurin’s call, he would take care of the child support motion and not charge a fee.
Pittman testified Bucher told her that because he had been unable to locate the file it would be best to serve Trager again.
Pittman stated that Bucher informed her service was accomplished on Trager in late 1982 or January of 1983. Pittman also claimed Bucher told her that Trager would be allowed time to answer so there would be some delay before a court date could be set. Bucher claimed that, after several telephone conversations with Pittman in early 1983, adequate service information was never provided and the second motion was never filed.
Pittman contacted Bucher again in early April 1983 and Bucher told her he would apply for a court date. On May 5, 1983, Pittman telephoned the district court judge to inquire about a court date. The judge checked with the clerk’s office and informed Pittman that Trager had not been served a second time.
Pittman continued to telephone Bucher for the next several weeks and, although she had some difficulty reaching him, she was able to make telephone contact. Bucher told her he was attempting to schedule a court date. Pittman’s last contact with Bucher was in May 1983.
On May 18, 1983, Pittman telephoned Maurin, who referred her to Geoff Lind, another local attorney, who discussed the option of writing the disciplinary administrator. Pittman wrote the disciplinary administrator in late May 1983, with the “thought [that] they would just write Mr. Bucher and tell him that he had X amount of days to file the journal entry. I thought . . . that would put the fire under him and he would do it.”
Bucher testified in his deposition that his representation of Pittman “ended with the grievance; that was the date I was fired.”
Pittman did not pursue the civil action during the time the complaint was pending in the disciplinary administrator’s office.
On December 5, 1985, Pittman sued Bucher in Wyandotte County District Court, stating a claim for breach of contract of employment. Pittman alleged she contracted with Bucher to “obtain an ongoing child support order,” that she suffered a substantial loss of income as a result of Bucher’s failure to take the necessary legal steps to obtain the order, and that the contract of employment continued through May 1983.
Pittman also sued the law firm of McDowell, Rice & Smith, Chartered, alleging Bucher acted as its agent in the performance of the employment contract.
At the close of discovery, both defendants filed motions for summary judgment.
Bucher’s summary judgment motion alleged Pittman’s claim was barred by the two-year statute of limitations, but even if construed as a contractual matter it was barred by a three-year statute of limitations. Bucher further claimed there was no proof Pittman’s ex-husband would have paid child support if a journal entry had been filed.
McDowell Rice’s motion for summary judgment made the same allegations as Bucher’s and, additionally, stated that the law firm was not liable on the alleged contract between Pittman and Bucher because the contract was entered into when Bucher was not an employee of the firm.
After briefs were submitted, the district judge, in sustaining both defendants’ motions for summary judgment, found the following:
“1. That the cause of action herein lies in tort subject to the two-year statute of limitation[s], K.S.A. 60-513.
“2. That plaintiff knew or should have known of defendant Bucher’s alleged misfeasance by September of 1982 at the latest, in which case the cause of action of tort or contract has expired pursuant to the applicable statute of limitations.
“3. The two other dismissal grounds raised whether Bucher was McDowell’s agent and the speculative nature of the damages are factual issues herein which the court cannot rule upon at this time.
“4. The motion of both defendants based upon the expiration of the statute of limitations prior to the filing of this action is sustained. The case is dismissed. Costs are taxed to the plaintiff.”
Pittman appeals.
Pittman contends the trial court erred in ordering dismissal for two reasons: (1) Her petition stated a claim for relief based on contract, for breach of which the three-year statute of limitations provided by K.S.A. 60-512(1) would not have run at the time she commenced this action; and (2) the statute of limitations for her claim for relief did not commence to run in September of 1982.
We will consider the latter contention first because if the statute of limitations commenced to run in September of 1982, Pittman’s claim will be time barred under either a contract or a tort theory.
Cause of action tolled by continuous representation
“In general, a cause of action accrues, so as to start the running of the statute of limitations, as soon as the right to maintain a legal action arises. The true test to determine when an action accrues is that point in time at which the plaintiff could first have filed and prosecuted his action to a successful conclusion. Johnston v. Farmers Alliance Mutual Ins. Co., 218 Kan. 543, 548, 545 P.2d 312 (1976); Yeager v. National Cooperative Refinery Ass’n, 205 Kan. 504, 470 P.2d 797 (1970).
“Depending upon the facts and circumstances of each case, there are at least four theories which can apply to attorney malpractice in Kansas as to when the accrual of a cause of action occurs and the statute of limitations begins to run. These include:
“(1) The occurrence rule — the statute begins to run at the occurrence of the lawyer’s negligent act or omission.
“(2) The damage rule — the client does not accrue a cause of action for malpractice until he suffers appreciable harm or actual damage as a consequence of his lawyer’s conduct.
“(3) The discovery rule — the statute does not begin to run until the client discovers, or reasonably should have discovered, the material facts essential to his cause of action against the attorney.
“(4) The continuous representation rule — the client’s cause of action does not accrue until the attorney-client relationship is terminated.
“For cases discussing all four points see Annot., 32 A.L.R.4th 260; ABA/BNA Lawyers’ Manual on Professional Conduct § 301:901 (1985); Mallen and Levit, Legal Malpractice § 388 et seq. (2d ed. 1981).” (Emphasis added.) Pancake House, Inc. v. Redmond, 239 Kan. 83, 87, 716 P.2d 575 (1986).
By its decision in Pancake House, Kansas joined a number of courts recognizing the doctrine of “continuous representation” whereby the statute of limitations is tolled during the period the attorney continues to represent the client on the same matter out of which the alleged malpractice arose.
Mallen and Levit’s discussion of the rationale for the rule states:
“The premise of the continuous representation rule is to avoid unnecessarily disrupting the attorney-client relationship. Adoption of this rule was a direct reaction to the absurd requirement of the occurrence rule which requires the client to sue his attorney even though the relationship continues and there has not been and may never be any damage. The rule, limited to the context of continuous representation, is consistent with the purpose of the statute of limitations which is to prevent stale claims and enable the defendant to preserve evidence. Where the attorney continues to represent the client in the subject matter in which the error has occurred, all such objectives are achieved and preserved. The attorney-client relationship is maintained and speculative malpractice litigation is avoided.
“The rule of continuous representation is equally available and appropriate in those jurisdictions adopting the damage and discovery rules. The policy reasons are as compelling for permitting an attorney to continue his efforts to remedy a bad result, even if some damages have occurred and even if the client is fully aware of the attorney’s error. The doctrine is fair to all parties concerned. The attorney has the opportunity to remedy, avoid or establish that there was no error or attempt to mitigate the damages. The client is not forced to terminate this relationship, although the option exists. This result is consistent with any expressed policy basis for the statute of limitations.” Mallen and Levit, Legal Malpractice § 391, pp. 460-61 (2d ed. 1981).
In reviewing the trial court’s grant of summary judgment on this issue, this court’s scope of review is clear. “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. [Citations omitted.]” Richardson v. Northwest Central Pipeline Co., 241 Kan. 752, 756, 740 P.2d 1083 (1987). Thus, we view the record in the light most favorable to Pittman.
It is clear Bucher continually represented to Pittman that either he had or would take care of preparation of and filing of the journal entry. After Maurin telephoned Bucher in the fall of 1982, Bucher again agreed to finish the representation. The representation continued in late 1982, or January of 1983, when Bucher informed Pittman he had again served Trager. In the winter of 1983, Bucher told Pittman that Trager would be allowed time to answer so the trial date would be delayed. In April 1983, Bucher told Pittman he would apply for a court date. It was not until May 5, 1983, when Pittman telephoned the district court judge to inquire about a court date, that she was informed Trager had not been served a second time. Bucher’s letter of complaint to the disciplinary administrator stated she was still calling Bucher on May 6, 11, and 17, 1983. Bucher admitted in his deposition that his representation of Pittman “ended with the grievance; that was the date I was fired.” We hold under these facts the statute of limitations was tolled by Bucher’s “continuing representation” until May 31, 1983, the date the disciplinary administrator received Pittman’s complaint.
Statute of Limitations
The second issue in this appeal is the determination of which statute of limitations is applicable. Several states have specific statutes prescribing the period of limitations for legal malpractice actions, but Kansas is among the vast majority which does not. Therefore, the matter is left for determination under statutes deemed by case law to be appropriate to the particular situation.
In order to determine whether Pittman’s suit against Bucher is one for breach of contract for which a three-year limitation period applies or, one in tort with a two-year limitation period, we must examine the particular facts herein involved in light of the historical distinction drawn by our Kansas courts.
Tort Actions
Webb v. Pomeroy, 8 Kan. App. 2d 246, 655 P.2d 465 (1982), was a suit for legal malpractice against two brothers, only one of whom was an attorney. The Court of Appeals affirmed a directed verdict against the lawyer brother but held, as to the nonlawyer brother who prepared conveyance instruments and continually represented his work as adequate and effective to achieve the desired result, when it was not, a directed verdict in his favor was error because the statute of limitations (K.S.A. 60-513[b]) did not begin to run until injury resulted from the decision in an underlying lawsuit. The tort-contract distinction was not the central issue. Nevertheless, after determining that the nonlawyer brother’s assurances concerning the validity of a repurchase agreement constituted fraudulent concealment, the court held the period of limitations did not commence to run until the fact of injury became reasonably ascertainable to the injured party. 8 Kan. App. 2d at 251.
In Bowman v. Doherty, 235 Kan. 870, 686 P.2d 112 (1984), Doherty’s handling of Bowman’s worthless check prosecution resulted in Bowman’s arrest for aggravated failure to appear and precipitated Bowman to sue Doherty alleging negligent action. After a jury trial based on comparative negligence, Bowman recovered $50 actual damages and $900 in punitive damages.
Doherty claimed Bowman was not entitled to punitive damages because his claim sounded in contract. To this the court held:
“Legal and medical malpractice generally constitute both a tort and a breach of contract. An action for liability of an attorney on the grounds of negligence for failure to discharge his professional duty to a client rests on the employment contract and therefore is contractual in nature. Where the act complained of is a breach of specific terms of the contract without any reference to the legal duties imposed by law upon the relationship created thereby, the action is contractual. Where the gravamen of the action is a breach of a duty imposed by law upon the relationship of attorney/client and not of the contract itself, the action is in tort.” Bowman v. Doherty, 235 Kan. at 879.
In Chavez, Executrix, v. Saums, 1 Kan. App. 2d 564, 571 P.2d 62, rev. denied 225 Kan. 843 (1977), the plaintiff employed Saums to represent him in the sale of some stock. After the sales agreement was signed, plaintiff refused to honor the sale, refunded the purchase price, and discharged Saums as his attorney. The buyer decided to enforce the contract, returned the check to the plaintiff, and employed Saums, who sued his former client and successfully enforced the contract.
Plaintiff then sued Saums, who prevailed on a statute of limitations defense. The claim was considered to be a breach of a legal duty arising out of the circumstances surrounding the attendant transaction, which was a tort.
Chavez was deemed to be controlled by Malone v. University of Kansas Medical Center, 220 Kan. 371, 552 P.2d 885 (1976). In that case, the court said:
“A breach of contract may be said to be a material failure of performance of a duty arising under or imposed by agreement. A tort, on the other hand, is a violation of a duty imposed by law, a wrong independent of contract. Torts can, of course, be committed by parties to a contract. The question to be determined here is whether the actions or omissions complained of constitute a violation of duties imposed by law, or of duties arising by virtue of the alleged express agreement between the parties.” 220 Kan. at 374.
Contract Actions
The distinction as to whether the action sounded in tort or contract was critical in Price, Administrator v. Holmes, 198 Kan. 100, 422 P.2d 976 (1967). There, plaintiff s decedent died while a will under which she was a beneficiary was being contested. If her claim was in tort, it failed to survive her death, but if in contract it survived.
In Price, a layman scrivener of a will was sued for the faulty execution and attestation of his work. His motion for summary judgment was sustained on the ground, among others, that the statute of limitations barred Price’s cause of action. The Kansas Supreme Court reversed, holding that plaintiff s petition alleged alternative causes of action — one in contract for breach of implied warranty and a second in tort for negligent handling of the execution of the will. It was further held the cause of action in contract was not barred by the three-year statute of limitations applicable to an action for breach of implied warranty because the statute was tolled during the period of the underlying will contest.
In Juhnke v. Hess, 211 Kan. 438, 506 P.2d 1142 (1973), Juhnke sued Hess for failure to file a timely appeal on his behalf in a condemnation proceeding. The court said this was a breach of a specific contract — failure to do that which the attorney expressly agreed to perform. The real basis for the claim for relief was financial loss resulting from failure to discharge a contractual obligation and consequently the claim for relief was one founded on an unwritten contract to be governed by the three-year statute of limitations provided in K.S.A. 60-512(1).
Cases from other jurisdictions which have considered this identical problem are not in harmony but may be found in Annot., Attorney Malpractice — Limitations, 2 A.L.R.4th 284.
Pancake House states the basis upon which we must decide between contract and tort:
“[W]here a legal duty is imposed by law, the cause of action is in tort. Where the malpractice involves failure to perform a contractual obligation, whether express or implied, the cause of action is in contract.” 239 Kan. at 86.
Another way this same problem has been stated is the earlier quoted wording of Malone:
“The question to be determined here is whether the actions or omissions complained of constitute a violation of duties imposed by law, or of duties arising by virtue of the alleged express agreement between the parties.” 220 Kan. at 374.
It is therefore necessary to consider the underlying basic agreement of employment of Bucher by Pittman.
Bucher was employed to file a motion for child support, obtain service on Trager, and obtain a child support order.
Bucher partially performed on his agreement by filing the motion and by obtaining proper service. He followed up by assisting the parties in reaching an agreement whereby Trager agreed to pay Pittman $50 per week for support of their three children. The only thing Bucher failed to do was to prepare and file a journal entry which would have completed his express agreement for services to Pittman.
We hold Bucher has failed to perform a duty arising under or imposed by agreement, which is in contract and allows a three-year period of limitations under K.S.A. 60-512(1).
While the attorney in Juhnke neglected to perform the initial duty in his contractual representation (failure to file a notice of appeal), Bucher neglected to perform the final duty in his contractual representation (failure to file a journal entry setting forth an agreed child support order).
We believe the trial court’s reliance, in its memorandum opinion, on Werner v. Kliewer, 238 Kan. 289, 710 P.2d 1250 (1985), is misplaced. Werner cited the specific language of Malone which we have quoted herein. In applying that language to the facts of the instant case, we hold that Bucher breached a duty arising from an express agreement of the parties.
Having determined the three-year contract statute of limitations applies and that K.S.A. 60-512(1) was tolled by Bucher’s “continuing representation” until May 31, 1983, we hold the action was timely filed. We have considered but decline to apply “equitable estoppel” to the facts herein nor do we need to do so in light of our ruling.
We further decline to uphold the granting of summary judgment because appellees claim Pittman’s damages are vague and speculative. The trial court properly refused to rule on this issue as it did on the issue of whether Bucher was McDowell Rice’s agent.
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Larson, J.:
Robert C. Hughes appeals from a jury conviction of one count of disturbing the peace. Wichita City Code § 5.24.030. Hughes challenges the constitutionality of the ordinance and raises multiple issues related to his prosecution.
Hughes called the Wichita Eagle Beacon on the public pay telephone from the Ken-Mar Pharmacy to voice his displeasure over the newspaper’s failure to run his advertisement of a garage sale. A sales representative conducting inventory in the pharmacy heard Hughes yelling and shouting on the telephone. He testified that Hughes screamed obscenities and shouted about the Vietnam War and “the Commies and Jews” who had sent him there.
One of the pharmacy’s owners, who could hear Hughes’ loud talking but was unable to understand specific words, telephoned the police. Nobody in the pharmacy approached Hughes nor asked him to quiet down or leave the premises.
Officer Crump of the Wichita Police Department answered the request for assistance. Crump asked Hughes to hang up the telephone and, according to the sales representative, Hughes stated that he was “going to have to leave, the pigs are here and they want to harass me.”
Officer Crump disconnected the telephone call and Hughes called Officer Crump a “pig,” “nigger,” and “homosexual.” At this juncture, Officer Perkins of the Wichita Police Department arrived at the scene. Hughes continued his derogative remarks calling the officers homosexuals and stating they were employed by a “homosexual organization.” Hughes was escorted outside the pharmacy by the police officers, patted down, placed under arrest, handcuffed, and taken to the police station.
Hughes’ description of the events differs remarkably from the versions of the witnesses and police officers. Hughes denies uttering racial slurs or profanity, and contends he was not shouting or screaming while using the telephone. Hughes does concede he told the officers the pharmacy owners wanted him to leave because they were a “bunch of Jew capitalists” which Hughes contends was intended as a joke. Hughes further contends Officer Crump called him a “faggot” and a “nigger,” but admitted he himself referred to the Sedgwick County Jail as an “institution of homosexualism,” which opinion he obtained from reading newspaper articles.
Hughes was charged by a complaint with “disorderly conduct [sic] yelling and screaming & disturb [sic] the peace over the telephone while at Ken Mar Pharmacy at 4728 E. 13th.” Hughes was found guilty in municipal court and appealed the verdict to the district court. A district court jury found Hughes guilty as charged.
Hughes filed post-trial motions for arrest of judgment, acquittal, and a new trial, all of which were denied. Hughes was sentenced to a two-year period of probation.
Hughe's appeals. He claims as trial errors an insufficient complaint, insufficient evidence, and the unconstitutionality of the ordinance. Because this appeal can be decided by determining the constitutionality of the ordinance, we will consider this issue first.
The applicable Wichita ordinance is § 5.24.030, which reads as follows:
“Any person in the city who wilfully disturbs the peace and quiet of any person, family or neighborhood is guilty of a misdemeanor.”
Hughes contends the ordinance is vague, indefinite, and restrictive of free speech and, therefore, is unconstitutional. The City recognizes the ordinance may be overbroad, but contends State v. Huffman, 228 Kan. 186, 612 P.2d 630 (1980), requires it to be authoritatively construed to apply only to “fighting words” and, when so construed, it may be constitutionally applied.
The longstanding and well-established rules of this court are that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and, before the ordinance may be stricken down, it must clearly appear to violate the constitution. Moreover, it is the court’s duty to uphold the ordinance under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the ordinance as constitutionally valid, that should be done. See State v. Meinert, 225 Kan. 816, 817, 594 P.2d 232 (1979), and cases cited therein.
Although closely related, overbreadth and vagueness are distinct concepts. An overbroad statute makes conduct punishable which is constitutionally protected. State v. Allen & Rosebaugh, 1 Kan. App. 2d 32, 562 P.2d 445 (1977). A statute which forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. At its heart, the test for vagueness is a common-sense determination of fundamental fairness. State v. Kirby, 222 Kan. 1, 4, 563 P.2d 408 (1977).
The fundamental principles which chart the permissible course for government regulation of speech are clearly stated in Huffman:
“The First Amendment guarantee of freedom of speech forbids the States to punish use of language and words except in certain ‘narrowly limited classes of speech.’ Chaplinsky v. New Hampshire, 315 U.S. at 571. ‘Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.’ N.A.A.C.P. v. Button, 371 U.S. 415, 433, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963). Limited categories of speech which are not protected by the First Amendment include: Fighting words — Chaplinsky v. New Hampshire, 315 U.S. 568; obscenity — Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973), and Roth v. United States, 354 U.S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957); libel — Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L. Ed. 2d 789, 94 S. Ct. 2997 (1974), and New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964); and incitement — Brandenburg v. Ohio, 395 U.S. 444, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (1969), and Feiner v. New York, 340 U.S. 315, 95 L. Ed. 295, 71 S. Ct. 303 (1951).” 228 Kan. at 190.
The wording of the pre-1969 Kansas statute, K.S.A. 21-950 (Corrick), is substantially the same as the Wichita ordinance in issue.
When the Kansas Criminal Code was enacted in 1969, “disturbing the peace” was changed to “disorderly conduct.” K.S.A. 21-4101, including the history and the Judicial Council comment, reads as follows:
“Disorderly conduct. Disorderly conduct is, with knowledge or probable cause to believe that such acts will alarm, anger or disturb others or provoke an assault or other breach of the peace:
“(a) Engaging in brawling or fighting; or
“(b) Disturbing an assembly, meeting, or procession, not unlawful in its character; or
“(c) Using offensive, obscene, or abusive language or engaging in noisy conduct tending reasonably to arouse alarm, anger or resentment in others.
“Disorderly conduct is a class C misdemeanor.
“History: L. 1969, ch. 180, § 21-4101; July 1. 1970.
“Source or prior law: 21-949, 21-950.
“Judicial Council, 1968: This section covers conduct formerly called disturbing the peace. The phrase ‘disorderly conduct’ is thought to be a more accurately descriptive one. Also the section seeks specifically to identify the conduct prohibited.” (Emphasis added.)
The City of Wichita asks us to hold that State v. Huffman, which found K.S.A. 21-4101 unconstitutionally overbroad but authoritatively construed the statute to prohibit only non-constitutionally protected speech such as “fighting words,” requires a similar holding to a Wichita ordinance of an earlier generation which is clearly overbroad, vague, and violative of constitutionally protected due process and free speech. We decline to do so.
It would be implausible to say the words used by Hughes are pleasant, desirable, or acceptable to most persons but they are by no means' uncommon. “It is highly doubtful that the government has much of a legitimate interest in punishment of‘name calling’ between private parties.” Tollett v. United States, 485 F.2d 1087, 1093 (8th Cir. 1973). This being the case, a city that believes a legitimate interest is involved must fashion its ordinances with heightened precision and accuracy.
We hold the ordinance in question unconstitutional because it forbids actions in terms so vague that persons of common intelligence must necessarily guess as to its meaning and differ as to its application. State v. Kirby, 222 Kan. 1.
We decline in this case to authoritatively construe this ordinance, which is doubtful and uncertain in its meaning and fails to define the standard of responsibility with requisite narrow specificity.
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Briscoe, J.:
This is a direct appeal by Lawrence Waldschmidt, Jr., from his jury conviction of possession of marijuana with intent to sell (K.S.A. 1986 Supp. 65-4127b[a][3]) and possession of drug paraphernalia (K.S.A. 65-4152[2]).
The sole issue on appeal is whether the trial court erred in denying defendant’s motion to suppress evidence seized pursuant to a search warrant.
At a hearing on defendant’s motion to suppress, Sheriff J. Dean Ochs of Trego County related the facts leading up to the execution of the search warrant. According to Sheriff Ochs, it was rumored in the community that defendant and his brother were growing marijuana at their residence located at the edge of the small rural village of Ogallah, in Trego County. These rumors and the sheriff s investigation were based on the fact that defendant and his brother had constructed a six-foot high fence around their yard. This yard was behind and immediately adjacent to their residence.
Sheriff Ochs and a deputy went to defendant’s property on July 25, 1985, at approximately 10:30 to 11:00 p.m. They walked up to defendant’s fence by crossing a neighboring pasture, which was surrounded by a three- or four-strand barbed wire fence. The fence surrounding defendant’s yard was a wooden stockade-type fence. The boards in the fence were placed closely together and obstructed the view of defendant’s yard. In order to see into defendant’s yard, Sheriff Ochs climbed the adjacent barbed wire fence by balancing himself against defendant’s fence. From this vantage point, the sheriff was able to place his arm and flashlight approximately one foot over defendant’s fence and peer down at the contents of defendant’s yard. Sheriff Ochs testified he was able to observe approximately 15 marijuana plants, which were three to four feet tall, growing in the yard. The sheriff then climbed down and he and his deputy left the area.
The sheriff and his deputy returned to defendant’s property a month later on the night of August 26, 1985. They again walked through the neighbor’s pasture and the sheriff climbed the barbed wire fence and again observed defendant’s yard, which still contained growing marijuana. After this second observation, the sheriff prepared and signed a warrant application and an affidavit in support of his warrant application. Upon presentation of the application and affidavit to the magistrate judge, the judge found there was probable cause to believe the enumerated crimes were being committed and she issued a search warrant.
The warrant was executed on August 28, 1985. Defendant’s residence and backyard were searched. Among the items seized were growing lights, planters containing growing marijuana plants, garden hoses, peat moss, potting soil, and a tiller, as well as cash, bank and travel records, and processed marijuana. During the search, 120 marijuana plants were recovered, 49 of which were located in the fenced-in area of the yard..
Prior to trial, defendant moved to suppress all evidence seized pursuant to the warrant. The motion was denied and the evi dence was admitted at trial. The defendant was convicted of possession of marijuana with intent to sell and possession of drug paraphernalia, based on evidence recovered in the search of defendant’s property.
Defendant contends the sheriff s looking and reaching over defendant’s fence in July and August 1985 were warrantless searches, in violation of his Fourth Amendment rights. Defendant also contends his Fourth Amendment rights were again violated when the sheriff executed the warrant which was based upon information obtained from the two prior warrantless searches.
We will focus our analysis upon the two warrantless observations, for if they violated defendant’s Fourth Amendment rights, the subsequent warrant was improperly issued because the only probable cause basis for the warrant was the sheriffs observations.
“[T]he exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure [citation omitted], but also evidence later discovered and found to be derivative of an illegality or ‘fruit of the poisonous tree.’ [Citation omitted.]” Segura v. United States, 468 U.S. 796, 804, 82 L. Ed. 2d 599, 104 S. Ct. 3380 (1984).
See Wong Sun v. United States, 371 U.S. 471, 484, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963); Nardone v. United States, 308 U.S. 338, 341, 84 L. Ed. 307, 60 S. Ct. 266 (1939); Weeks v. United States, 232 U.S. 383, 58 L. Ed. 652, 34 S. Ct. 341 (1914).
At the suppression hearing, the sheriff also testified that the growing marijuana on the other side of the fence emitted an odor which he smelled and could identify as unique to growing marijuana without actual observation of the plants. Had the sheriff also included this fact in his warrant application, it would have provided a potential alternative probable cause basis for upholding the constitutionality of the warrant. But, this fact was not included in the warrant application or otherwise presented to the court issuing the warrant; therefore, it cannot be used retroactively to correct the warrant. Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967).
At the close of the suppression hearing, the trial court stated the following as its rationale for denying defendant’s motion to suppress:
“What Sheriff Ochs did in this case was essentially stand on a barbed wire fence and use his flashlight to look over a wooden fence. The Court is going to find that was justifiable constitutionally, either under the open field plain view doctrine, or based upon the probable cause testimony as to the odor of growing marijuana plants.”
As we have stated, since the sheriff did not include his detection of an odor of growing marijuana as a probable cause basis for obtaining the warrant, neither we nor the trial court can now rely on it to sustain the warrant.
Can the sheriff s observation of defendant’s backyard be upheld under either the open field or plain view doctrines? We think not.
As a preliminary to our legal analysis, we must first discount the State’s factual argument that the building adjoining the yard in question was not defendant’s residence. Since this contention is raised for the first time on appeal, we need not consider it. State v. Falke, 237 Kan. 668, 676, 703 P.2d 1362 (1985). Further, even if considered, both the affidavit in support of the warrant application and the affidavit of prosecution filed on behalf of the State indicated the State believed the adjoining building was in fact the residence of Lawrence Waldschmidt and his brother George. No evidence was presented to the contrary.
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” The amendment protects people, not places, and is aimed at the preservation of the individual’s reasonable expectation of privacy. Katz, 389 U.S. at 351-53; State v. Baker, 239 Kan. 403, 406, 720 P.2d 1112 (1986). The amendment does not protect the merely subjective expectation of privacy, but only those expectations “that society is prepared to recognize as ‘reasonable.’ ” Katz, 389 U.S. at 361 (Harlan, J., concurring); see Smith v. Maryland, 442 U.S. 736, 740-41, 61 L. Ed. 2d 220, 91 S. Ct. 2577 (1979). To resolve whether any given expectation of privacy is reasonable, Katz provides a two-part inquiry: First, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable? Katz, 389 U.S. at 361; see Smith, 442 U.S. at 740-41.
Since the passage of the Fourth Amendment, our Supreme Court has stressed “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.” Payton v. New York, 445 U.S. 573, 601, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980). See United States v. United States District Court, 407 U.S. 297, 313, 32 L. Ed. 2d 752, 92 S. Ct. 2125 (1972); Silverman v. United States, 365 U.S. 505, 511, 5 L. Ed. 2d 734, 81 S. Ct. 679 (1961). The “curtilage,” the land immediately surrounding and associated with the home, is given the same Fourth Amendment protections that attach to the home. Oliver v. United States, 466 U.S. 170, 180, 80 L. Ed. 2d 214, 104 S. Ct. 1735 (1984); State v. Mitchell, 8 Kan. App. 2d 265, 268, 655 P.2d 140 (1982). At common law, the curtilage is the area to which extends the intimate activity associated with the “sanctity of a man’s home and the privacies of life” (Boyd v. United States, 116 U.S. 616, 630, 29 L. Ed. 746, 6 S. Ct. 524 [1886]), and therefore has been considered part of the home itself for Fourth Amendment purposes. The courts have continued to extend Fourth Amendment protection to the curtilage, and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private. Oliver v. United States, 466 U.S. at 180.
Open fields, on the other hand, are not afforded the same Fourth Amendment protection as is afforded the curtilage. In Oliver, 466 U.S. at 178, the Supreme Court upheld Hester v. United States, 265 U.S. 57, 68 L. Ed. 898, 44 S. Ct. 445 (1924), and observed: “[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.” In explanation of its rationale for this conclusion, the court contrasted open fields to the curtilage and stated “open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance.” Oliver, 466 U.S. at 179. In addressing the first inquiry under Katz, the court concluded that no expectation of privacy legitimately attaches to open fields; an individual has no legitimate expectation that open fields will remain free from warrantless intrusion by government officers. Further, under the second Katz inquiry, “[t]here is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields. Moreover, as a practical matter these lands usually are accessible to the public and the police in ways that a home, an office, or commercial structure would not be.” Oliver, 466 U.S. at 179.
Whether an area is subject to protection under the curtilage concept is determined by reference to four factors: “the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.” United States v. Dunn, 480 U.S. 273, 94 L. Ed. 2d 326, 334-35, 107 S. Ct. 1134, reh. denied 481 U.S. 1024 (1987). In considering these factors, the Court stated:
“We do not suggest that combining these factors produces a finely tuned formula that, when mechanically applied, yields a ‘correct’ answer to all extent-of-curtilage questions. Rather, these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration — whether the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Dunn, 480 U.S. at 301.
Applying these factors to the present case, we conclude that defendant’s fenced yard was within the curtilage. First, the record indicates the yard was in that area immediately adjacent to the house. Second, the yard was surrounded by a six-foot high fence. Third, viewed objectively, the fenced area was of the type used for intimate family activities. This conclusion is debated by the State. Fourth, defendant evidenced a subjective expectation of privacy by erecting a six-foot high fence which shielded the area from the view of people passing by.
The State argues that the fenced yard is not within the definition of curtilage because it was being used for illegal activities rather than intimate family activities. This argument is not persuasive. In Oliver, 466 U.S. at 181, the Supreme Court refused to do a case-by-case analysis to ascertain whether, on occasion, an individual’s expectation of privacy in a certain activity in an open field should be protected.
“This Court repeatedly has acknowledged the difficulties created for courts, police, and citizens by an ad hoc, case-by-case definition of Fourth Amendment standards to be applied in differing factual circumstances. [Citations omitted.] The ad hoc approach not only makes it difficult for the policeman to discern the scope of his authority [citation omitted]; it also creates a danger that constitutional rights will be arbitrarily and inequitably enforced. [Citation omitted.]” 466 U.S. at 181-82.
In Dunn, it is apparent that, from the Court’s analysis of whether a barn located within a fenced area was of the type used for intimate family activities, the Court embarked on a “case-by-case” analysis. In concluding the barn was not within the curtilage of the house for Fourth Amendment purposes, the Court relied upon abundant objective data that indicated the barn was not being used as part of defendant’s home. The dissent cited Oliver and criticized this approach. The dissent argued that, since the Court is willing to generalize about the absence of a privacy interest in open fields, it should be equally willing to generalize about the existence of a privacy interest in a barn near a residence. The dissent argued the general rule that a barn is a domestic use should apply, and the application of this general rule should end the inquiry concerning the nature of the use of the area. Typical use rather than actual use should control.
Assuming the Dunn decision authorizes a case-by-case determination, the facts in the present case can be distinguished. Here, the bulk of the objective evidence indicated the yard in question was within the curtilage. The yard was within close proximity of defendant’s residence and it was shielded with a high fence. Most evidence to the contrary was obtained after the sheriffs intrusion. The only evidence obtained prior to the intrusion which suggested the yard was being used to grow marijuana was the sheriff s indication he smelled growing marijuana. Such evidence is not overly compelling and is tainted by the fact the sheriff never reported until the suppression hearing that he smelled growing marijuana before he climbed up and looked over the fence.
A determination that defendant’s fenced yard was within the curtilage does not end the inquiry. While the curtilage is entitled to a higher degree of Fourth Amendment protection, it is not free from all warrantless searches. In California v. Ciraolo, 476 U.S. 207, 90 L. Ed. 210, 106 S. Ct. 1809 (1986), acting on an anonymous tip, police officers who were trained in marijuana identification secured a private airplane, flew over defendant’s fenced backyard at an altitude of 1000 feet, and readily identified marijuana growing in the yard. The United States Supreme Court held that a warrantless search of a curtilage made by such aerial surveillance was not improper because defendant had no reasonable expectation of privacy from this type of observation. In support of its conclusion, the Court found the aerial surveillance was conducted from navigable airspace and was therefore a public vantage point.
The State in the present case argues that Ciraolo is controlling. The State contends the sheriff s observations were made from a public vantage point, as anyone could climb the adjacent barbed wire fence and peer into defendant’s backyard. According to the State, defendant could have no reasonable expectation of privacy in this regard. The State’s interpretation of Ciraolo is far too broad. If the State’s position were adopted, the curtilage doctrine would be meaningless. The facts in the present case can be distinguished from Ciraolo based on the intrusiveness of the search. In Ciraolo, the Supreme Court noted that the search was physically nonintrusive. The search in the present case, on the other hand, was intrusive. The sheriff climbed , a neighbor’s fence, balanced himself against defendant’s fence, and placed his arm and flashlight over the fence to make his observations. While an individual may have no reasonable expectation of privacy as to aerial overflights at 1000 feet, it is reasonable to expect that people will not scale your fence to observe the contents of your yard. In this regard, we conclude the sheriff s conduct violated defendant’s reasonable expectation of privacy.
Our conclusion is further bolstered by a statement made in the dissent of Ciraolo, which first noted its agreement with the majority that defendant’s yard was in fact within the curtilage and then stated:
“The lower federal courts have agreed that the curtilage is ‘an area of domestic use immediately surrounding a dwelling and usually but not always fenced in with the dwelling.’ [Citations omitted.] . . . Relevant facts include the proximity between the area claimed to be curtilage and the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. [Citations omitted.]
. . Since Officer Shutz could not see into this private family area from the street, the Court certainly would agree that he would have conducted an unreasonable search had he climbed over the fence, or used a ladder to peer into the yard without first securing a warrant. [Citations omitted.]” 476 U.S. at 221-22.
Finally, the plain view doctrine cannot legitimize the sheriffs conduct. The plain view doctrine allows law enforcement officers to seize evidence without a warrant if it is within plain view. Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971). To invoke the plain view doctrine, the law enforcement officer must discover the evidence inadvertently while in a place where he has a right to be present. Coolidge, 403 U.S. at 465. See Texas v. Brown, 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535 (1983). The sheriffs observations in the present case do not meet the plain view doctrine because the sheriff s observations were not inadvertent nor, as discussed above, made from a location where the sheriff had a right to be. The plain view doctrine cannot apply unless the officer’s initial presence is justified.
The sheriffs conduct was a violation of defendant’s Fourth Amendment rights and the subsequent warrant was improperly issued because the only probable cause basis for the warrant was the sheriffs observations.
Reversed and remanded for new trial. | [
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Six, J.:
Defendant-appellant Gregory George appeals his conviction for driving under the influence of alcohol, K.S.A. 1987 Supp. 8-1567. George contends the trial court erred in admitting the results of the State’s breath test, K.S.A. 1987 Supp. 8-1004. George also challenges the sufficiency of the evidence supporting his conviction.
The issues are: (1) Did the district court err in admitting into evidence the State’s breath test? (2) Was the admission of the State’s test harmless error?
We find error and reverse the trial court’s ruling on issue one. Issue two is answered, “No.” The case is remanded.
On January 1, 1987, the McPherson County Sheriff s Department received a teletype from the Salina Police Department stating that George had telephoned the St. John’s Hospital alcohol treatment unit in Salina and was threatening to harm himself or others. Deputy Ingermanson went to George’s residence in McPherson. No one was at home. Ingermanson contacted a neighbor for a description of George’s car. At 6:38 p.m., Ingermanson spotted George driving and began to follow him. Ingermanson followed George for several blocks while waiting for a backup deputy to arrive. George independently pulled into a driveway and stopped. Ingermanson drove up behind George’s car and made a visual and driver’s license identification. George stepped out of his car. Ingermanson, with his weapon drawn, ordered George to take his hands out of his pockets and place them on the car. George did so “momentarily” and kept asking, “What’s going on?”
Ingermanson then approached George, patted him down, placed him in handcuffs, and advised him he was being placed under arrest in “protective custody” because of the notification from the Salina Police Department.
Ingermanson put George in the patrol car. For the next five minutes Ingermanson talked to George. The deputy was interested in determining whether George was a threat to himself or others and whether George should be in protective custody and taken to a doctor for examination.
Ingermanson testified that during that five minute period, George’s speech “was pretty fair,” he was “very talkative . . . [k]ind of had a carefree attitude, although it was . . . sort of indifferent.” His clothing was orderly. His ability to understand instructions was poor. George was staggering a bit, and smelled of alcohol. Ingermanson did not ask George to perform field sobriety tests. He believed George was intoxicated and arrested him at 6:42 p.m. on two charges: (1) open container, and (2) driving under the influence (DUI). A sack containing an open rum bottle was found in the front seat of George’s car.
George was taken to the Sheriff s office. He refused to perform any coordination tests or answer certain questions on a form. He agreed, however, to take a breath test.
Ingermanson and George then sat for approximately twenty minutes waiting the required time for the breathlyzer to warm up.
Before giving the test, Ingermanson reviewed with George several statements listed on the Implied Consent Advisory Form. Ingermanson had to explain statement number 6 on the form because George had difficulty understanding its meaning. Statement number 6 informed George that he had a right to an attorney and to additional testing if he agreed to take the State’s breath test. The breath test, administered at 7:15 p.m., indicated George had a blood alcohol content level of .15%.
After the breath test, George went through the normal booking procedures. At approximately 7:45 to 7:50 p.m., after being processed, George requested to talk to an attorney. He was permitted to do so.
A discussion followed between George and Ingermanson concerning whether George was being held in protective custody, or whether he could bond out. The deputies determined that George would no longer be held in protective custody, but that he would be held on a DUI charge. George was then placed in an isolated holding cell until the bondsman (or his wife) came to pick him up. While in the cell, George asked his jailer (Officer Halburt) numerous times why he was being held. Officer Halburt in turn, repeated these inquiries to Ingermanson.
As Officer Halburt walked by a few minutes later (at approximately 8:12 p.m. according to George’s watch) George asked Halburt if he could then be taken for an independent blood test. Ingermanson refused the request. Ingermanson testified he received George’s request for the independent sample at 8:20 p.m.
In McPherson, blood tests have to be given at the local hospital. Ingermanson refused to allow the independent test because: (1) they would have had to transport George to the hospital, and (2) they would have had to have either the doctor on call or the lab technician come down and draw blood. Ingermanson estimated that it would have taken him five to ten minutes to get George ready to go to the hospital (some eight or nine blocks away) and an additional ten or fifteen minutes at the hospital. Had George’s request been granted, the second test would have occurred two hours and ten minutes after Ingermanson first saw George driving his car.
George was charged with DUI (K.S.A. 1987 Supp. 8-1567) and with transporting an open liquor container (K.S.A. 41-804). Subsequently, on the State’s motion, the open container charge was dismissed and evidence of the rum bottle was not admitted into evidence. George filed a motion to suppress the State’s breath test results. K.S.A. 1987 Supp. 8-1004. George reasoned that he had not been permitted to obtain a blood test after having submitted to the State’s breath test and, consequently, the State’s test should be excluded. The motion was overruled. The court found George guilty of DUI.
1. ADMISSIBILITY OF THE K.S.A. 8-1001 BREATH TEST— A REASONABLE OPPORTUNITY TO HAVE ADDITIONAL TESTING
George claims the breath test results were inadmissible under K.S.A. 1987 Supp. 8-1004, which provides:
“Without limiting or affecting the provisions of K.S.A. 8-1001 and amendments thereto, the person tested shall have a reasonable opportunity to have an additional test by a physician of the person’s own choosing. In case the officer refuses to permit such additional testing, the testing administered pursuant to K.S.A. 8-1001 and amendments thereto shall not be competent in evidence.” (Emphasis added.)
The right of a reasonable opportunity to have additional testing when arrested for driving while under the influence is secured by statute. We note the legislature utilized the word “shall” in addressing the right to an additional test. Under K.S.A. 1987 Supp. 8-1004, a person suspected of driving under the influence who has been given an alcohol concentration test has the right to a reasonable opportunity to have an additional test performed. If the suspect is not given this opportunity for additional testing, the State’s test is not competent in evidence.
The issue before this court is whether Ingermanson, the McPherson County Deputy Sheriff, provided George with a “reasonable opportunity” to have additional testing. K.S.A. 1987 Supp. 8-1004. The issue of what is a “reasonable opportunity” under 8-1004 is one of first impression in this jurisdiction.
A DUI suspect’s statutory right to an additional test has been acknowledged previously. See State v. Young, 228 Kan. 355, 363, 614 P.2d 441 (1980); In re Appeal of Ball, 11 Kan. App. 2d 216, 719 P.2d 750 (1986).
The trial court ruled that George’s request for the additional test was “unreasonable” because (1) when he was first informed of his right to the additional test, he remained silent; (2) George waited over an hour after the first test was given to request the second test; and (3) George’s unspecific request simply to go to the hospital and have another test was not reasonable.
George took the State’s breath test at 7:15 p.m. One hour later, he exercised his statutory right by requesting an additional test. Ingermanson, the arresting deputy, was still at the jail working on George’s case. George had not been issued special clothes, and he had been fully processed (fingerprinted, photographed, and booked) at the time of the request. In telling George that once he had submitted to the State’s test he could obtain an additional test, Ingermanson did not indicate that the request for additional testing had to be within a certain period of time. Indeed, there is no specific time within which an additional alcohol concentration test must be given. Nothing in the record indicates that Ingermanson was unable to comply with George’s request for additional testing. By not granting his request for additional testing, Ingermanson impaired George’s ability to procure probative evidence and to prepare a defense.
We hold that there is coupled with a DUI suspect’s statutory right to additional testing a corresponding duty on the part of law enforcement officers not to deny the suspect that right. Law enforcement officers may not nullify a right granted to a citizen by the legislature. George did not have a reasonable opportunity to obtain additional testing. Under the facts of this case, the denial of George’s request for additional testing violated K.S.A. 1987 Supp. 8-1004 and the State’s breath test should have been excluded. What is a “reasonable opportunity” will depend on the circumstances in each case. When a DUI suspect is detained under arrest the opportunity afforded him must be consistent with safe custody. What may be a reasonable opportunity in one locality may not necessarily be reasonable in another.
A similar result was reached in Blaine v. Suess, 93 Wash. 2d 722, 612 P.2d 789 (1980). In Blaine, the defendant agreed to a breath test. The defendant invoked his statutory right and requested an independent blood alcohol test. Although the police had agreed to take him to a nearby hospital for the test, they took him to jail. The blood test was never given. The issue in Blaine was whether the police provided the defendant with a reasonable opportunity for an independent test. The defendant claimed the failure to obtain such a test directly impaired his ability to prepare his defense.
The Supreme Court in Blaine reversed the conviction and dismissed the case, holding that the police unreasonably interfered with the defendant’s attempt to obtain probative evidence. 93 Wash. 2d at 727-28. According to the Washington court, the defendant did everything a reasonable person could have done to obtain an additional test. “While the law enforcement authorities have no duty to volunteer to arrange for testing, they must not thwart an accused’s attempts to make such arrangements.” 93 Wash. 2d at 728. See People v. Gillett, 629 P.2d 613, 619 (Colo. 1981) (’’When the arresting officer initially invokes the implied consent law and . . . denies the driver’s request for a blood test, the driver is deprived of his right to establish non-intoxication by a highly reliable form of chemical testing.”); Puett v. State, 147 Ga. App. 300, 248 S.E.2d 560 (1978) (Accused was advised of his right to an independent test and a telephone conversation was had between the accused and a local hospital in which he was informed that a test could be made if he would come to the hospital. The accused so informed the jail personnel and those holding him refused or failed to take him to the hospital; conviction reversed.); People v. Dawson, 184 Cal. App. 2d Supp. 881, 7 Cal. Rptr. 384 (1960) (The refusal of defendant’s request to call his own doctor to perform an additional test denied defendant a reasonable opportunity for an additional test.).
The State contends the criteria set out in Standish v. Department of Revenue, 235 Kan. 900, 683 P.2d 1276 (1984), should be used to determine whether George was given a reasonable opportunity to obtain additional testing. In Standish, the defendant refused to submit to an on-the-scene breath test and to a breath test at the police station. Thirty minutes after the second refusal, the defendant consented to the test but the jailer refused to administer it because the consent was too late.
The present case is distinguishable from Standish. The issue in Standish was whether the defendant had timely rescinded his earlier refusal to take the State’s test. A question in the present case is whether George made a timely request for a K.S.A. 1987 Supp. 8-1004 additional test. Furthermore, in Standish, the arresting officer had already left the building when the defendant rescinded his earlier refusal to take the State’s test. In the present case, the arresting deputy was in the same building as George working on George’s case.
While the State is not required to provide a DUI suspect with a free additional test, it may not unreasonably interfere with a suspect’s reasonable attempts to secure an additional test, at his own expense, by a physician of his own choosing, for the purpose of attempting to secure evidence for his defense at or near the crucial time under consideration. Under the circumstances of this case, we hold Ingermanson, by refusing George’s request, did unreasonably interfere with George’s effort to procure probative evidence.
2. ADMISSION OF THE STATE’S TEST— WAS IT HARMLESS ERROR?
Having determined the admission of the State’s breath test was error, we must determine whether or not such error was harmless. “In applying the Kansas harmless error rule (K.S.A. 60-2105), a reviewing court must be able to declare the error had little, if any, likelihood of having changed the result of the trial and the court must be able to declare such a belief beyond a reasonable doubt.” State v. Alexander, 240 Kan. 273, 276, 729 P.2d 1126 (1986).
We cannot say beyond a reasonable doubt that the erroneous admission of the State’s test had little, if any, likelihood of changing the result of the trial. We note the emphasis the trial court placed on the State’s test (State’s Exhibit 1):
“Therefore, I find the defendant guilty of DUI. I base that on State’s Exhibit number 1. I understand defense has an ongoing objection which I have at this point overruled. But State’s Exhibit number 1 does indicate that the test results showed that blood alcohol level was 0.15 percent. That is over the limit contained within K.S.A. 8-1567 which does provide of course, that if the contents at the time are within two hours after the defendant’s blood was .10 or above, that does constitute a per se violation of the DUI statute. Based upon that portion and State’s Exhibit number 1, the testimony of the officer, which I find to be persuasive on the issue that Mr. George was driving, I find the defendant guilty of the offense of DUI.”
The evidence, without the State’s breath test, in view of the trial court’s reliance upon it, was not of a degree of sufficiency as to render harmless the error in admitting the State’s test. Accordingly, we reverse the judgment of conviction and remand the case for a new trial, if the State be so inclined.
3. INFORMING GEORGE OF HIS RIGHTS REGARDING TESTING
George contends the trial court erred in admitting the breath test results into evidence because Ingermanson failed to adequately inform George of his rights regarding the testing.
Recause of the decision we have reached concerning the inadmissibility of the State’s test, we need not consider George’s inadequate form argument.
Reversed and remanded. | [
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Buchele, J.:
This case involves a question of jurisdiction under the Kansas Uniform Child Custody Jurisdiction Act, K.S.A. 38-1301 et seq.
The relevant background, set forth below, is taken from the memoranda of counsel to the district court and briefs on appeal. No evidence was received in this case; therefore no findings of fact have been made. Absent a factual record, we determine this appeal on the questions of law presented.
Danielle and Noel Nasica met while students at the University of Kansas. Danielle is a citizen of the United States and Noel is a citizen of France. They were married in Erstein, France, in 1982, and two children were born to the marriage. On July 4, 1986, Danielle and the two minor children traveled to Wichita, Kansas. Whether Danielle intended to return to France and whether she misrepresented to Noel her reason or purpose for coming to Kansas is disputed by counsel.
On November 20, 1986, after being advised by Danielle of her intention not to return to France, Noel filed for divorce before the Tribunal de Grand Instance in Lure, France. Danielle was notified of this proceeding by mail on January 28, 1987, and responded by filing for divorce in the district court of Sedgwick County, Kansas, on February 11, 1987. Noel filed a motion to dismiss the Kansas action for lack of jurisdiction. The district court partially overruled the motion to dismiss, finding it had jurisdiction to grant a divorce and award sole custody of the two minor children to Danielle. This appeal challenges the trial court’s finding of jurisdiction to determine custody of the parties’ minor children.
The Uniform Child Custody Jurisdiction Act, K.S.A. 38-1301 et seq., (UCCJA) became effective January 1, 1979. Prior to that time, Kansas courts lacked jurisdiction to determine custody matters absent personal jurisdiction of both parties. Lillis v. Lillis, 1 Kan. App. 2d 164, 165-66, 563 P.2d 492 (1977). Now, all actions involving issues of child custody jurisdiction must be considered in conjunction with the UCCJA. Larsen v. Larsen, 5 Kan. App. 2d 284, 286, 615 P.2d 806, rev. denied 228 Kan. 807 (1980). In applying the UCCJA, courts should first determine whether they have jurisdiction under K.S.A. 38-1303, and, if so, the next step is to decide if the court should exercise that jurisdiction based upon the best interests of the child. Bills v. Murdock, 232 Kan. 237, 247-48, 654 P.2d 406 (1982).
K.S.A. 38-1303 provides in part:
“(a) A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
“(1) This state (A) is the home state of the child at the time of commencement of the proceeding, or (B) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of the child’s removal or retention by a person claiming the child’s custody or for other reasons, and a parent or person acting as parent continues to live in this state.”
The Kansas Supreme Court construes this section of the UCCJA to require trial courts to decline jurisdiction of child custody matters if Kansas is not the home state of the child, absent a showing of abandonment, mistreatment, neglect, abuse, or emergency under K.S.A. 38-1303(a)(3). Bills v. Murdock, 232 Kan. at 243.
Home state is defined in K.S.A. 38-1302 as follows:
“(e) ‘Home state’ means the state in which the child immediately preceding the time involved lived with the child’s parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period.”
The six-month residency necessary to establish home state jurisdiction is a definite and certain test. It is grounded on the premise that “[m]ost American children are integrated into an American community after living there six months; consequently, this period of residence would seem to provide unreasonable criterion for identifying the established home.” Ratner, Child Custody in a Federal System, 62 Mich. L. Rev. 795, 818 (1964).
A principal function served by the six-month residency requirement is to protect the stay-at-home parent, who is left by a spouse who removes the children to another state. If the stay-at-home parent institutes proceedings within six months of departure, home state jurisdiction remains in the state where the parties and children resided together. See Commissioners’ Note, Unif. Child Custody Jurisdiction Act, 9 U.L.A. § 3 (1979). If a child custody proceeding is not commenced within six months, the transient spouse and children will have established a new home state and may successfully institute a proceeding vesting jurisdiction in the new state of residence.
The Nasica children had lived in Kansas for over six months at the time the petition was filed. Kansas was the home state of the children.
Noel argues that Kansas should decline jurisdiction due to the pendency of the earlier filed divorce in France.
If a proceeding concerning child custody is pending in another state with laws in substantial conformity with the UCCJA, juris diction should not be assumed for a second proceeding in this state. K.S.A. 38-1306. The purpose of K.S.A. 38-1306 is to discourage simultaneous and competitive child custody proceedings. Both the court and the parties to the action have affirmative responsibilities under the Act. The parties must inform the court of any other pending proceedings. K.S.A. 38-1309(a)(2). The court, upon receipt of this notice, has an affirmative duty to stay the proceedings before it and make inquiry into the other proceedings. K.S.A. 38-1306(b), (c). This procedure permits the court, where a subsequent action is commenced, the opportunity to examine the totality of circumstances before deciding whether to assume jurisdiction.
The party seeking to defeat jurisdiction carries the burden to establish the pendency of another action and the applicability of the UCCJA jurisdictional bar. The record in this case is void of evidence relative to the scope of a proceeding pending in France. Neither arguments before the trial court nor assertions raised in an appellate brief constitute evidence or are sufficient to satisfy inadequacies of the record. Rural Water Dist. No. 6 v. Ziegler Corp., 9 Kan. App. 2d 305, 310-11, 677 P.2d 573, rev. denied 235 Kan. 1042 (1984).
Under the UCCJA, Kansas courts will recognize and enforce custody decrees entered in other countries if they are rendered by appropriate authorities which afford reasonable notice and opportunity for hearing. K.S.A. 38-1323. But, there are no foreign orders of any kind before the court in this case. The trial court consulted the Registry of Out of State Decrees before entering its order and found nothing involving the Nasica children. Absent some confirming indicia of the existence of a pending proceeding pertaining to child custody, we find there is no duty on the part of the trial court to stay proceedings in Kansas, initiate an investigation to locate a pending case, or decline jurisdiction under the UCCJA. Further, it is not established that French child custody laws are similar to the UCCJA.
“[0]ne who submits to the court foreign law which he claims is applicable should do more than merely allege conclusions or short excerpts from the allegedly pertinent statute; he should set out the substance of the alleged foreign law to such an extent that the court may judge whether it has the effect that he ascribes to it.
. . [T]he pleader of foreign law should give not only the substance of that law but also appropriate citations of the applicable statutes and one or more citations of decisional law, if there is any.” Annot., 75 A.L.R.3d 177, 189 (citing Telesphore Couture v. Watkins, 162 F. Supp. 727 [D.N.Y. 1958]).
Noel has not established the existence of a pending custody proceeding in a forum with laws substantially similar to the UCCJA. He therefore cannot successfully invoke the provisions of K.S.A. 38-1306.
The provisions of the UCCJA discourage wrongful or reprehensible conduct of a parent, and the court may decline to accept jurisdiction for this reason. K.S.A. 38-1308. Noel’s claim of error in this respect must fail for three reasons. First, whether a parent has engaged in wrongful or reprehensible conduct is a question of fact. The party asserting wrongful or reprehensible conduct has the burden to bring forth evidence to prove the allegation. Second, in the absence of a court order to the contrary, both natural parents have an equal right to the custody of their minor children. State v. Al-Turck, 220 Kan. 557, 558, 552 P.2d 1375 (1976). Noel’s allegation that Danielle deceived him regarding her actual plans when she left France with the children, if proven true, does not rise to the level of wrongful or reprehensible conduct contemplated in K.S.A. 38-1308. See Commissioners’ Note, Unif. Child Custody Jurisdiction Act, 9 U.L.A. § 8. Finally, even when wrongful or reprehensible conduct is established, the trial court may exercise discretion in deciding to accept jurisdiction. Exercise of discretion by the trial court will not be disturbed on appeal absent a showing of abuse. Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973). Here, there was a lack of evidence of wrongful or reprehensible conduct on which a finding could be made by the trial court. The trial court’s refusal to decline jurisdiction for this reason is clearly not an abuse of discretion.
We conclude that the district court had jurisdiction under the Uniform Child Custody Jurisdiction Act to determine the custody of the parties’ minor children. The motion to dismiss was properly denied,
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Gernon, J.:
A. Scott Anderson and E. Sylvia Anderson appeal the post-judgment procedure used by plaintiffs, City of Arkansas City and Southwest National Bank of Wichita, in an effort to satisfy a judgment of $2,604,029.40 entered against the Andersons by default on July 6, 1984. The amount of the judgment or its validity is not in question. The Andersons appeal from the orders of the district court confirming (1) the sale of their interest in a contract for deed in which they were vendors; and (2) the sale of their interest in certain partnerships.
On February 6,1986, a writ of special execution was issued by the Clerk of the District Court of Cowley County to the Wilson County Sheriff commanding the sheriff to attach “the following described property consisting of a contract for deed with Rick Cunningham.” The writ described the interest as real property and ordered the sheriff to post the writ at the residence if no one resided there. The writ further stated:
“If the property sought to be attached by you is in the hands of some person other than the Defendants, you shall serve a copy of this order on such third-party and declare to such party that you attach the same and that such third-party is made a garnishee . . . .”
It is uncontroverted that the writ instructed the sheriff to attach “property consisting of a contract for deed.” An order of sale was filed March 28, 1986, ordering the sale of the contract for deed. The sheriff s sale was conducted on April 22, 1986. The district court confirmed the sale on May 12, 1986.
Charging orders were issued on November 27, 1985, against the Andersons’ interests in certain partnerships. On February 24, 1986, the plaintiffs filed a motion to sell the interests of the Andersons which were the subject of the charging orders. The Andersons made no appearance at the hearing on the motion and an order to sell was entered on March 4, 1986. The interests in three of the partnerships were sold on April 22, 1986, and the sale was confirmed on May 21, 1986. A second charging order was entered on February 7, 1986, against the Andersons’ interest in a fourth partnership, Tomahawk Development. This interest was ordered sold on March 4, 1986, and was sold on May 22, 1986. The court confirmed this sale by journal entry filed June 13, 1986.
On appeal, the Andersons contend the district court erred in confirming both the sale of the contract for deed and the sale of the partnership interests. Although the Andersons raise several arguments in support of this contention, we need only address (1) whether plaintiffs can sell an interest in a contract for deed and interests in partnerships and, (2) if so, whether plaintiffs complied with Kansas law when they attached and sold these interests.
Contract for Deed
As regards the sale of the Andersons’ interest in the contract for deed, the writ of special execution described the interest as a “contract for deed with Rick Cunningham.” The record does not indicate that either the documents evidencing the contract for deed or the underlying deed was ever in the physical possession of the sheriff. The sheriff s return stated only that the writ’was personally served. The order of sale filed March 28, 1986, ordered the Cowley County Sheriff to advertise and sell, according to law, “the Contract for Deed” in which “Defendants, A. Scott Anderson and E. Sylvia Anderson, own a fifty percent (50%) interest.” The Cowley County Sheriff then purportedly sold property attached by the Wilson County Sheriff, although the record further reveals the only property “attached” resulted from the Wilson County Sheriff leaving an order with the buyer under the contract for deed, Rick Cunningham.
Kansas law states that any nonexempt property of a judgment debtor can be sold in satisfaction of a judgment. K.S.A. 60-2401 and 60-2406. Jackson & Scherer, Inc. v. Washburn, 209 Kan. 321, 326, 496 P.2d 1358 (1972).
“A general execution is a direction to an officer to seize any nonexempt property of a judgment debtor and cause it to be sold in satisfaction of the judgment. A special execution or order of sale is a direction to an officer to effect some action with regard to specified property as the court determines necessary in adjudicating the rights of parties to an action.” K.S.A. 60-2401(a).
“The interest of a judgment debtor in property, either real or personal, may be levied upon and sold on execution subject to liens or encumbrances already existing. If the holder of a lien or other security interest in tangible personal property asserts a right of possession thereto and does not consent to an execution sale subject to his or her interest, the sale shall not be completed unless for an amount in excess of such senior interest as determined by the court, and in such event the property shall be delivered by the officer to the lienholder entitled to the same. If the sale is completed, the net proceeds thereof shall be applied to the satisfaction of the senior interest in full and the balance applied to the judgment debt.” K.S.A. 60-2406.
Is a vendor’s interest under a contract for deed subject to levy by special execution and, if so, may a creditor of the vendor attach the entire stream of payments which will flow to the vendor under the contract through one execution? Other jurisdictions have held that a vendor’s interest under a contract for deed is subject to levy by execution (92 C.J.S., Vendor and Purchaser § 308; Ohio Casualty Ins. Co. v. Holz & Holz, Inc., 24 Wisc. 2d 587, 129 N.W. 2d 330 [1964]), but we find no Kansas cases to support this proposition. The Kansas cases cited by plaintiffs (Jackson & Scherer, Inc. v. Washburn, 209 Kan. 321; Thompson v. Zurich State Bank, 124 Kan. 425, 260 Pac. 658 [1927]; Poole v. French, 71 Kan. 391, 80 Pac. 997 [1905],) all involve execution upon real estate to attach a judgment debtor’s equitable interest in the real estate. Here, as will be further addressed, plaintiffs contend they were not executing upon real estate and, although references were made to real estate in documents filed by plaintiffs, we conclude plaintiffs were not executing upon real estate.
In order to determine whether plaintiffs followed the proper procedures in the execution and sale of the Andersons’ interest as vendors under a contract for deed, we will first determine what type of property interest plaintiffs were attempting to attach. The Andersons contend plaintiffs improperly attached an interest in real property, relying in part upon plaintiffs’ inclusion of the legal description of the real estate subject to the contract for deed in both the writ of special execution and the order of sale. The Andersons note the writ of special execution filed in Cowley County, where the judgment was entered, commanded the Wilson County Sheriff to attach “the following described property consisting of a contract for deed with Rick Cunningham,” followed by a legal description of the real estate subject to the contract for deed, which was located in Wilson County. Other procedures for the attachment of real estate were also followed.
Plaintiffs argue the contractual right to payment of a vendor under a contract for deed for sale of land is personalty and the inclusion of a legal description does not change the nature of the property to be attached. Although there are' no Kansas cases deciding the issue, there are cases from other jurisdictions supporting plaintiffs’ position that a vendor’s interest in a land contract is personalty. See Matter of Jones, 768 F.2d 923, 928 (7th Cir. 1985). In addition, the Kansas Comment to K.S.A. 84-9-106 describes a “vendor’s interest in an installment land contract” as a general intangible. Accordingly, we conclude the property interest that plaintiffs attempted to attach was intangible personal property.
It is a general rule at common law that a writ of execution may not be levied against a mere contractual right or chose in action. 30 Am. Jur. 2d, Executions § 136. Although there is some authority for the rule that a judgment may under certain circumstances attach to property not subject to execution because of its intangible or incorporeal nature, the general rule is that a judgment lien or execution does not attach to intangible property until such property is subject to levy. 46 Am. Jur. 2d, Judgments § 252. In National Surety Corporation v. Gillette, 194 Kan. 604, 400 P.2d 681 (1965), our Supreme Court applied these general rules when it held a judgment creditor could not garnish the cash surrender value of the debtor’s life insurance policy. The court recognized that the payout of the cash surrender value of the insurance policy was controlled by the contract between the insured and the insurance company. Until such time as the insured exercised his option to surrender the policy for its cash surrender value, the cash surrender value was not subject to levy. Like the cash surrender value in Gillette, in the present case the vendor’s interest under a contract for deed, i.e., the payments due from the vendee for the duration of the contract, is controlled by the contract between the vendor and the vendee and is not subject to levy until the payments are due. Once the payments come due, they are then subject to garnishment.
The Andersons acknowledge, and we agree, that plaintiffs had the right to garnish payments owed to the Andersons under the contract for deed as those payments came due. The plaintiffs’ other option was execution on the real estate owned by the Andersons, subject to any prior liens including vendee’s (Cunningham’s) equitable interest arising from payments made under the contract for deed. See Goodman v. Smith, 177 Kan. 712, 281 P.2d 1094 (1955). Rather than garnish each payment as it came due on the contract or execute upon the underlying real estate, plaintiffs'treated the Andersons’ interest in the contract for deed as personal property and executed upon it. In attempting to apply the procedures applicable to an execution upon personal property, plaintiffs either failed to comply with the procedures or, by attempting to comply, emphasized the potential for confusion when these procedures are applied to a sale of an interest in a contract for deed.
The attachment of personal property is governed by K.S.A. 60-706(b)(2), which provides in part:
“In attaching personal property, the officer and two disinterested appraisers who are residents of the county shall make a true inventory and appraisal of the same under oath and said inventory and appraisal shall be signed by the officer and the appraisers and returned with the order.”
The Comment to 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-706(b) (1979), contains the following rationale for the provision:
“The purpose of the inventory is to give the sheriff the protection of a record subscribed by disinterested witnesses identifying the property taken into his possession, or otherwise attached, and for which he is responsible. The purpose of the appraisement is to give him a record of evidence of value to enable him to determine how much property he should hold to satisfy the plaintiff s claim, and to give him some protection as to value if he is subsequently called upon to respond in damages for a wrongful levy.”
No inventory or appraisal was made in the present case.
Pursuant to K.S.A. 60-2409, if personal property is sold, notice by publication in an appropriate newspaper at least once each week for two consecutive weeks before the date of sale is required. In the present case, the legal notice stated the sheriff s sale was for “a contract for deed,” followed by a legal description of the property covered by the deed, a statement that the Andersons owned a 50 percent interest in the contract, and the names of prior mortgagees. References to the legal description and prior mortgagees could lead to confusion among potential buyers as to what was really being sold.
The Andersons question the authority of the Cowley County Sheriff to sell property which had been “seized” by the Wilson County Sheriff and which he did not have in his possession or had not attached. The plaintiffs, and therefore the involved sheriffs, appear in this instance to have been proceeding under K.S.A. 1987 Supp. 60-2410(b), which states in part that “sales of lands or tenements under execution shall be held at the courthouse located in the county seat of the county in which the judgment was rendered.” This is further evidence that plaintiffs considered the sale of the Andersons’ interest in the contract to be real property. If so, the Andersons would be entitled to the right of redemption under K.S.A. 60-2414.
Conversely, if the property to be levied upon was personal property, K.S.A. 60-2409 requires:
“The officer who levies upon personal property, shall, before said officer proceeds to sell the same, cause public notice to be given of the time and place of sale, for at least ten (10) days before the day of sale.”
Here, the officer who levied upon the property described in the writ of special execution was the Wilson County Deputy Sheriff. The officpr who placed the advertisements and notices of sale was the Cowley County Sheriff. The record is silent as to what “property” was seized or whether the property purportedly attached by the Wilson County Sheriff was ever delivered to the possession of the Cowley County Sheriff.
We conclude that, under these facts and circumstances, the Cowley County Sheriff did not have possession of, or execute against, any interest in property which he could validly and properly advertise, notice, and sell. Therefore, the resulting sale was a nullity and the district court erred in confirming it. The proper procedure for plaintiffs to follow was either garnishment of the payments from the vendee under the contract for sale as the payments came due or execution upon the underlying real estate subject to prior liens including the vendee’s equitable interest.
Partnership Interests
We next address the plaintiffs’ attachment and sale of the Andersons’ interest in four partnerships. The district court issued charging orders pursuant to K.S.A. 56-328(a), which provides:
“On due application to a competent court by any judgment creditor of a partner, the court which entered the judgment, order, or decree, or any other court, may charge the interest of the debtor partner with payment of the unsatisfied amount of such judgment debt with interest thereon; and may then or later appoint a receiver of his or her share of the profits, and of any other money due or to fall due to him or her in respect of the partnership, and make all other orders, directions, accounts and inquiries which the debtor partner may have made, or which the circumstances of the case may require.”
The question in the present case is whether Kansas statutes allow the sale of a partnership interest on the basis of a charging order only. K.S.A. 56-328(b) states:
“The interest charged may be redeemed at any time before foreclosure, or in case of a sale being directed by the court may be purchased without thereby causing a dissolution:
“(1) With separate property, by any one or more of the partners; or
“(2) With partnership property, by any one or more of the partners with the consent of all the partners whose interests are not so charged or sold.”
Crane and Bromberg on Partnership § 43, pp. 248-49 (1968), states:
“While the charge is in effect, the partner presumably continues to be a partner in all respects except distributions and withdrawals from the firm. And the charging creditor is not the owner of the interest. He may become so by foreclosing. . . . The advantage to a charging creditor in foreclosing and buying is that he becomes the owner of the interest, gaining psychological leverage as well as the improved position of an owner over a lienor. Moreover, he then acquires the right to dissolve the firm if it is one at will. If he presses this far, he will be able to get his hands on partnership assets: whatever share would have come to his debtor after payment of all partnership creditors and claims of co-partners. It is a roundabout route to partnership assets, and one which may yield little or nothing.
“The other partners may not like a partner’s individual creditor breathing down their necks, and are authorized to dissolve the firm, or to redeem the charged interest (before foreclosure). If they dissolve, they must account to the charging creditor for the debtor partner’s interest. If they want to redeem, there is no express statutory procedure for determining the price at which they can do so. . . . The court probably has general authority in such a case to value the interest and permit redemption at the value.”
K.S.A. 56-324 states:
“The property rights of a partner are (1) the partner’s rights in specific partnership property, (2) his or her interest in the partnership, and (3) his or her right to participate in the management.”
K.S.A. 56-326 states:
“A partner’s interest in the partnership is his or her share of the profits and surplus, and the same is personal property.”
K.S.A. 56-327(a) states:
“A conveyance by a partner of his or her interest in the partnership does not of itself dissolve the partnership, nor, as against the other partners in the absence of agreement, entitle the assignee, during the continuance of the partnership, to interfere in the management or administration of the partnership business or affairs, or to require any information or account of partnership transactions, or to inspect the partnership books; but it merely entitles the assignee to receive in accordance with his or her contract the profits to which the assigning partner would otherwise be entitled.”
Read together, we conclude the statutory scheme under the Uniform Partnership Act allows a partner to convey or assign his or her right to profits or proceeds and still participate in the management of the partnership. K.S.A. 56-328 clearly allows a partner s interest to be “charged” so that the partnership would be required to pay the profits and proceeds directly to a judgment creditor rather than to the debtor partner. Just as the plaintiffs could garnish the payments to be made to the Andersons under the contract of sale, the plaintiffs were entitled under the charging order to certain accountings and the opportunity to step into the shoes of the debtor partner so far as distributions and withdrawal of the partnership funds were concerned.
The methods employed by plaintiffs to satisfy the judgment herein appear to have been designed to eliminate what we conclude to be necessary due process rights and statutory procedures. We therefore conclude the sale of a partnership interest pursuant to a charging order and without following the foreclosure proceedings is not contemplated by the statutes or case law. The district court erred in confirming the sales of the Andersons’ partnership interests.
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Gernon, J.:
The appellant, Vicki Pierce, appeals from the judgment of the trial court awarding proceeds from a life insurance policy of Marion Pierce’s to the plaintiffs-appellees Scott and Tia Pierce.
Vicki Pierce is the second wife of Marion Pierce. Scott and Tia Pierce are his children by his first marriage.
The sole question on appeal is the interpretation of a part of a separation agreement entered into between Marion Pierce and his first wife, which provided in part;
“It is further agreed by MARION PIERCE that he will keep in full force and effect through his employer, the $120,000.00 life insurance policy on his life and keep the two (2) minor children as beneficiaries thereon.”
The agreement was entered into in January of 1974 when the two children were six and eight years old, respectively. A divorce was granted in February of 1975 wherein the trial court found that the agreement containing the language concerning the life insurance policy was valid and binding and ordered Marion Pierce to comply.
Marion Pierce subsequently married Vicki Pierce in 1977, and in 1980 changed the beneficiaries on his life insurance policy, designating Vicki as his sole beneficiary. Marion died in 1987.
The trial court concluded that Scott and Tia Pierce were entitled to the proceeds of the life insurance policy. We agree and affirm.
The issue is whether the words “minor children,” used in the agreement and in this context, are words of identification or words of limitation. If they are words of identification, as the trial court held, then Tia and Scott Pierce are entitled to the proceeds. However, if they are words of limitation, and restrict the requirement that the children be named as beneficiaries only so long as they are minors, then the second wife, Vicki Pierce, should prevail.
The children are referred to only once in the agreement, in the clause in question, and are never identified by name at that time or any place else in the agreement.
We agree with the trial court that the agreement is not ambiguous and that the meaning of the words “minor children” is a matter of interpretation. There are no Kansas cases interpreting this language, but Tippit v. Lahr, 132 Ariz. 406, 646 P.2d 291 (Ariz. App. 1982), and Travelers Insurance Company v. Lewis, 531 P.2d 484 (Utah 1975), involve provisions analogous to the one in question and hold that, as a general rule, the words “minor children” are descriptive only and intend to identify the children by reference to their ages and not to grant benefits to them only during their minority.
We conclude that the proceeds of the life insurance policy belong to Scott and Tia Pierce whether they were minors or adults at the time of the death of Marion Pierce.
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Royse, J.:
This is an action for judicial review of orders by the Employment Security Board of Review. The trial court determined that, because claimant Craig Vann had not exhausted his administrative remedies, the appeal to district court was improper.
Vann worked as a spot welder for defendant Aeroquip Corporation. Aeroquip discharged Vann for excessive absenteeism on May 9, 1986. Vann applied for unemployment benefits. By a decision mailed May 30, 1986, an examiner determined Vann was eligible for unemployment benefits because he had not been discharged for breach of a duty owed Aeroquip. Aeroquip appealed the examiner’s decision, but it was affirmed by a referee in August 1986.
Aeroquip appealed the decision to the Employment Security Board of Review. The board set aside the referee’s decision, finding that Vann had been discharged for breach of a duty owed Aeroquip. The board determined Vann was retroactively disqualified from receiving benefits from May 11, 1986, through July 26, 1986. The board ordered that a $1,900 overpayment be assessed against Vann and that Vann’s entitlement to future benefits be reduced by $1,900.
Vann filed a timely appeal to the district court. The trial court determined that substantial evidence supported the conclusion that Vann was disqualified from receiving benefits under K.S.A. 44-706. That ruling has not been appealed.
Vann’s petition to the district court further challenged the board’s assessment, as well as the board’s order both of assessment and reduction in future benefits. The trial court determined that Vann had failed to exhaust his administrative remedies because he had not requested waiver of the assessment pursuant to K.S.A. 44-719(d). K.S.A. 44-719(d) provides in part:
“The collection of benefit overpayments which were made in the absence of fraud, misrepresentation or willful nondisclosure of required information on the part of the person who received such overpayments, may be waived by the secretary at any time if such person met all eligibility requirements of the employment security law during the weeks in which the overpayments were made.”
Where administrative remedies are available, they must ordinarily be exhausted before a litigant can resort to the courts. Beaver v. Chaffee, 2 Kan. App. 2d 364, 369, 579 P.2d 1217 (1978). If no administrative remedy is available or it is inadequate to address the problem at issue, exhaustion is not required. Western Kansas Express, Inc. v. Dugan Truck Lines Inc., 11 Kan. App. 2d 336, 338, 720 P.2d 1132 (1986). A primary purpose of the doctrine requiring exhaustion of administrative remedies is to avoid “premature interruption of the administrative process.” Jarvis v. Kansas Commission on Civil Rights, 215 Kan. 902, 904, 528 P.2d 1232 (1974). The doctrine allows the administrative process to run its full course before the courts become involved in the matter. Jarvis v. Kansas Commission on Civil Rights, 215 Kan. at 904-05.
The legislature has set forth an administrative process for unemployment benefits claims in K.S.A. 44-709. That statute provides for initial determination by an examiner; appeal to a referee if filed within sixteen days; appeal to the board of review if filed within sixteen days; and court review if an action is filed within sixteen days. K.S.A. 44-709 sets forth a complete administrative procedure. Nothing in K.S.A. 44-709 incorporates K.S.A. 44-719(d) or suggests that a request for waiver under 44-719(d) is a prerequisite to any step in the administrative process. Certainly, the sixteen-day increments in 44-709 are not consistent with waiver “at any time,” as provided in 44-719(d).
The Supreme Court has observed that K.S.A. 44-709 “fully sets forth the procedures for any party aggrieved by an examiner’s determination.” Zimmerman v. Board of Review of the Employment Security Division, 208 Kan. 68, 70, 490 P.2d 359 (1971). Those procedures are: “one original determination and two appeals, fulfilling every requirement of due process of law. Until those administrative procedures have been invoked and completed, there is nothing the district court, or any court, may review.” 208 Kan. at 71.
In short, the statutes contain no requirement that a litigant request waiver before seeking judicial review.
The issues in this case highlight another problem with viewing request for waiver as a requisite to judicial review. Vann’s petition sought a determination whether the board had acted within the scope of its authority in ordering both a $1,900 assessment and a $1,900 reduction in future benefits. It is the function of the courts, not of administrative agencies, to determine whether an agency has acted within the scope of its authority. R.D. Andersen Constr. Co. v. Kansas Dept. of Human Resources, 7 Kan. App. 2d 453, 456, 643 P.2d 1142, rev. denied 231 Kan. 801 (1982). The secretary has no power to determine whether the board’s actions were proper. A request that the secretary waive the assessment could not have resolved the issues raised by Vann’s petition.
Application to the secretary for waiver, then, is not required and the failure to do so does not bar claimant from obtaining judicial review of the remaining issues raised in his petition.
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Per Curiam-.
Keith F. Kulper appeals his conviction for unlawful use of weapons, K.S.A. 1986 Supp. 21-4201(l)(g), a class E felony. He contends that: (1) evidence of three pieces of a disassembled shotgun, under the facts of this case, was insufficient to support his conviction; (2) the trial court erred in refusing to give his requested instruction defining “possession”; (3) because his car was illegally seized, the subsequent search of the car and his statement should be excluded; and (4) the trial court abused its discretion by sentencing him (a) under the Habitual Criminal Act, (b) without considering the factors listed in K.S.A. 1986 Supp. 21-4601 and K.S.A. 21-4606, and (c) without granting probation. We affirm.
On April 23, 1986, defendant Kulper’s car and a propane truck collided in or near Ottawa, Kansas. At the time of the collision a friend, Connie Hake, was driving, her husband Chuck was in the right front seat, and Kulper was trying to sleep in the back seat. A highway patrol trooper and a county sheriff s captain investi gated the accident. Kulper’s friend and her husband were taken from the scene by ambulance. Kulper’s car was not driveable after the accident and eventually the captain called a tow truck to remove it from the scene. Kulper and the officers apparently went to the hospital, and the trooper asked both Kulper and the driver for insurance information for the car. Both thought it was in the glove compartment and agreed they would prefer to have an officer go search the glove compartment for the information rather than receive a ticket for driving without insurance.
The captain went to the lot at the wrecker service that had towed the car and looked in the glove compartment. Along with the title and other papers, he found the forearm piece and the modified stock of a shotgun. The stock had been cut off to leave a short handle that was wrapped with electrical tape. He knew from past experience that such a stock was often used for a sawed-off shotgun. As he was leaving the car, he looked in the trunk which was partly open because of damage from the wreck and saw a shotgun barrel that was clearly less than eighteen inches long. The captain put the pieces together to see if they fit and they did. He seized the pieces and returned to the hospital where Kulper and his two friends were. Kulper eventually admitted the gun was his.
For his first issue, Kulper asks us to rule as a matter of law that one who owns a sawed-off shotgun which is found disassembled in his car, with two parts in the glove compartment and one in the trunk, cannot have possessed a shotgun with an illegally short barrel within the meaning of K.S.A. 1986 Supp. 21-4201(l)(g). The statute provides in pertinent part:
“(1) Unlawful use of weapons is knowingly:
“(g) selling, manufacturing, purchasing, possessing or carrying a shotgun with a barrel less than 18 inches in length or any other firearm designed to discharge or capable of discharging automatically more than once by a single function of the trigger.”
Kulper first contends the phrase “carrying a shotgun with a barrel less than 18 inches in length” somehow implies that the gun must be completely assembled. However the second portion of the subsection, which outlaws machine guns, indicates that the legislature was not concerned here merely with immediately functional guns but also those which are either designed to function or are otherwise capable of functioning in the prohibited manner. Thus the language used, to the extent it can be said to address the question at all, tends more to support the conclusion that the legislature intended to ban the possession of the parts of these guns whether assembled or not.
Kulper also tries to draw support for his claim from the one exemption the legislature did provide in 21-4201(4):
“Subsections (l)(a), (f) and (g) shall not apply to any person who . . . possesses or carries a firearm, device or attachment which has been rendered unserviceable by steel weld in the chamber and marriage weld of the barrel to the receiver and which has been registered in the national firearms registration and transfer record ... in the name of such person.”
He cites a supreme court case which held: “A firearm is consistently defined in terms of its design or capacity to propel a projectile by force of an explosion, gas, or other combustion.” State v. Davis, 227 Kan. 174, 177, 605 P.2d 572 (1980). Kulper then asserts, in effect, that a disassembled gun is not a firearm because it cannot propel a projectile, and concludes the exemption applies only to assembled guns. His claim is not persuasive. The one defense the legislature included in the statute involved what are probably irreversible changes to a gun which make it permanently incapable of propelling a projectile. At the least, this indicates the legislature did not intend that mere disassembly would be a defense where reassembly is apparently very simple.
No Kansas case has considered the claim Kulper is making in a prosecution under K.S.A. 1986 Supp. 21-4201, but one case does support a conclusion that it was for the jury to decide whether the three pieces constituted a shotgun under the statute. In State v. McCambry, 225 Kan. 803, 803-04, 594 P.2d 222 (1979), the court held the jury must decide whether a sawed-off shotgun that lay in two pieces at the defendant’s feet during a robbery until he picked it up as he left the scene constituted a dangerous weapon so that the robbery was aggravated under K.S.A. 21-3427.
The court has also considered what is required for “possession” under a statute closely related to 21-4201, and Kulper cites the following definition to support his claim. K.S.A. 21-4204 provides in part:
“(1) Unlawful possession of a firearm is:
“(a) Possession of any firearm by an habitual drunkard or narcotics addict; or
“(b) Possession of a firearm with a barrel less than twelve (12) inches long by a person who, within five (5) years preceding such violation has been convicted of a felony under the laws of Kansas or any other jurisdiction or has been released from imprisonment for a felony.”
In State v. Jones, 229 Kan. 618, 620, 629 P.2d 181 (1981), the court said:
“Our court has consistently emphasized that the possession of a firearm prohibited by K.S.A. 21-4204 is not the innocent handling of the weapon but a willful or knowing possession of a firearm with the intent to control the use and management thereof. State v. Neal, 215 Kan. 737, Syl. ¶ 1, 529 P.2d 114 (1974).”
Kulper seizes upon the word “use” in the definition given in State v. Neal and seeks to stretch it to mean immediate use to fire projectiles. In his view, by defining “possession” the court limited it to cover only immediately fully functional firearms. However, by dismantling a gun, one is “controlling] the use and management thereof.” State v. Jones, 229 Kan. at 620.
Finally, Kulper cites several out-of-state cases to support his claim. In People v. Coburn, 25 Ill. App. 3d 542, 545, 323 N.E.2d 559 (1975), the court held that the State had failed to prove beyond a reasonable doubt that the defendant possessed a shotgun with a barrel less than eighteen inches long. The police found Coburn sleeping in a basement apartment with the stock of a shotgun laying beside him, found a short barrel in another part of the basement, and found another man sleeping with a complete sawed-off shotgun under his mattress. 25 Ill. App. 3d at 544. In reversing the conviction, the court noted that, although the short barrel fit the stock, the State had offered no evidence to show the barrel belonged to the stock found beside the defendant or that it was not designed for the other shotgun found in the basement. Without the barrel, the court said, “the object found lying next to the defendant lacks the essential characteristics of a shotgun and is merely the stock of a shotgun, which is not prohibited.” 25 111. App. 3d at 545. Even accepting this decision as correct, our case is distinguishable on several points: (1) Kulper admitted the gun was his; (2) all the pieces of the gun were found in his car; and (3) no other gun the pieces might fit was found in the car or in the possession of the other people in the car. In a case decided by a different Illinois appellate court, the court held that the inclusion in the Illinois statute of one exemption involving guns in a nonfunctioning state prevented it from reading another for disassembled shotguns into the statute. People v. Theobald, 43 Ill. App. 3d 897, 898-99, 356 N.E.2d 1258 (1976). The court distinguished Coburn on the ground Theobald “was found in possession of an entire sawed-off shotgun albeit disassembled.” 43 Ill. App. 3d at 900. Williams v. State, 400 So. 2d 427 (Ala. Crim. App. 1981), is not helpful here because Williams possessed only two pieces of a shotgun while another person had sole possession of the barrel and the court concluded that in any event the weapon in question was not a “pistol” under the applicable statute. 400 So. 2d at 429.
Furthermore, other courts have held that it is not a defense to a charge of possession of an illegal weapon that the weapon was disassembled when found by the police. E.g., People v. Tallmadge, 103 Cal. App. 3d 980, 987-88, 163 Cal. Rptr. 372 (1980) (machine gun); Thornton v. State, 529 S.W.2d 539, 541 (Tex. Crim. App. 1975) (sawed-off shotgun). In Tallmadge the court said, “Not to treat this as a crime would permit the criminal to own machine gun parts with impunity, to assemble and use it and then disassemble it to reacquire immunity. Surely that was not the legislative intent.” 103 Cal. App. 3d at 988.
Next Kulper argues that the trial court erred when it refused his request to instruct the jury that “[p]ossession means having custody of a firearm with the intent to control its management and use.” This suggested instruction is drawn from PIK Crim. 2d 64.06 which is the instruction based on K.S.A. 21-4204. The court gave the following pertinent instructions:
“No. 8
“The defendant is charged with the crime of unlawful use of weapons. The defendant pleads not guilty.
“To establish this charge each of the following claims must be proved:
“1. That the defendant knowingly possessed a shotgun with a barrel less than 18 inches in length; and
“2. That this act occurred on or about the 23rd day of April, 1986, in Franklin County, Kansas.
“No. 9
“Possession is defined as having control over a place or thing with knowledge of and the intent to have such control.”
Kulper raises several complaints about the possession instruction.
Kulper first argues that the words “firearm,” “management,” and “use” are essential to the instructions in this case. He argues that the words “place” and “thing” permitted the jury to convict upon finding that Kulper possessed only a part of a gun. However, the elements instruction clearly states that the jury must find Kulper possessed a “shotgun,” not just any “thing.” Kulper’s trial counsel obviously felt the question of the effect of the disassembled state of the parts was still before the jury under the court’s instructions; he told the jurors they had to decide, “Was this weapon a shotgun when it’s in three different pieces in two different areas of the car, and one area was totally inaccessible to a passenger in the car?” The jurors may simply have accepted the prosecutor’s assertion that the claim the parts were somehow not a shotgun was “absurd.” Kulper also claims the omission of the words “management” and “use” prevented the jury from considering whether he had an intent to use or manage a weapon. However, the more important word in both definitions of “possession” is “control.” The question is not whether Kulper intended to use or manage the shotgun but whether he intended to control it. This the jury was instructed to decide.
Kulper’s remaining arguments under this issue are not clear, but seem to amount to a claim that firearm, management, and use are somehow essential elements of the crime of knowing possession of a sawed-off shotgun. This is simply not true. The statute requires knowing possession of a shotgun with a barrel less than eighteen inches long. K.S.A. 1986 Supp. 21-4201(l)(g). The elements instruction the court gave follows PIK Crim. 2d 64.01.
Finally, in State v. Adams, 223 Kan. 254, 256, 573 P.2d 604 (1977), the court held that the definition of “possession” contained in PIK Crim. 2d 53.00 was a proper instruction in a prosecution under K.S.A. 21-4204. That is the possession instruction the court gave here.
On appeal Kulper contends that his car was illegally seized. However, the only search and seizure issue Kulper raised before the trial court was whether his car was illegally searched. Con sequently, we will not consider the seizure issue. “Where constitutional grounds for a reversal of a conviction are first raised on appeal, they are not properly before the appellate court for review.” State v. O’Neal, 238 Kan. 183, 187, 708 P.2d 206 (1985).
Likewise, since Kulper’s remaining claims relating to suppression of evidence depend upon the illegal seizure issue, they also will not be considered.
Finally, Kulper claims the court abused its discretion when imposing sentence. Though he has failed to note it, the court did impose the maximum imprisonment possible for a class E felony and second felony conviction. K.S.A. 1986 Supp. 21-4501(e) and -4504(a). The presentence investigation report states that Kulper was convicted of two aggravated robberies and one attempted aggravated robbery and that he was in prison from 1976 to 1979. It also states:
“The seriousness of the offense is increased due to his record of aggravated offenses. The purpose of the weapon in the car is unknown, but the defendant had to have known of the prohibition of his possession of a firearm and with his record of aggravated offenses how such a situation could be perceived.”
The report recommended placement with the Secretary of Corrections and evaluation by the State Reception and Diagnostic Center (SRDC). The court sentenced Kulper to the custody of the Secretary of Corrections for a term of not less than two nor more than ten years and ordered the payment of costs. It then denied probation. On motion for modification, after receiving the SRDC report which recommended probation, the court said:
“Well, I think this man had served a term for a violent ci'ime or a life-threatening crime, armed robbery, and hadn’t been out too long apparently when he got involved in this incident. I read the report from the Kansas Department of Corrections and I’m of the opinion that the application for modification should be denied.”
“[A] sentence imposed which is within the statutory limits will not be disturbed on appeal, provided it is within the realm of discretion on the part of the trial court and not a result of partiality or prejudice.” State v. Hamilton, 240 Kan. 539, 540, 731 P.2d 863 (1987). Furthermore, “a trial court’s failure to make a detailed statement of the factors considered by the court in imposing sentence does not necessarily, in and of itself, constitute an abuse of discretion.” State v. Jennings, 240 Kan. 377, 381, 729 P.2d 454 (1986). About the most the record discloses in this regard is that the judge apparently did not realize Kulper had been out of prison from 1979 until the car wreck occurred in 1986, at least five years, without being convicted for other crimes.
We find no abuse of discretion.
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Per Curiam:
The plaintiff brought this action on a schoolteacher’s contract to recover wages for services performed by her in teaching. Judgment was rendered for her, and the school district prosecutes error.
The record presented deprives us of an examination of the proceedings had on the trial. It appears that a motion for a new trial was filed and /denied, but the motion is not contained in the record, consequently we are unable to determine what trial errors were relied on and presented to the trial court. This court cannot review alleged errors which were not called to the attention of the trial court by a motion for a new trial. Under the present condition of the record the only question which we may consider and pass upon” is whether the petition supports the judgment. We think it does.
The judgment is therefore affirmed. | [
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Per Curiam:
The judgmeht in this case is reversed upon the authority of The State v. Carter, ante, p. 156. | [
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The opinion of the court was delivered by
Smith, J.:
The first assignment of error is the ruling of the court upon the motion of the plaintiff that the answer be made more definite and certain in five different parts thereof, which were specified. The court allowed the motion as to three of the specifications and denied it as to two. Both the plaintiff and the defendant excepted to the ruling, and the defendant was granted leave to file and did afterward file an amended answer. The exception is too general to raise any question for review. A single exception to a series of rulings is unavailable if any one of them is correct. (8 Encyc. Pl. & Pr. 167; Sumner v. Blair, 9 Kan. 521; Bailey v. Dodge, 28 Kan. 72.) The plaintiff, by implication, admits the correctness of the ruling on three of the five specifications. Besides, the filing of an amended answer, to which no objection is urged in plaintiff’s brief, presumably cured any defect that may have existed in the original answer. Again, the matters claimed to have been defectively pleaded appear from the record to have been fully tried out, and, if any error was made in the ruling, the plaintiff was not prejudiced thereby.
Further, it is urged that the court erred in its second conclusion of law, which reads:
“That the agreement to indorse subsequent payments upon this $425 note, embraced in the correspondence between the plaintiff and the defendant, was based' upon a sufficient consideration, as the settlement of a doubtful and disputed claim, and was a valid contract between the parties.”
The objections to this conclusion of law are: (1) That the defendant did not plead the compromise as a defense; (2) that there was no consideration for the agreement to indorse future payments on this particular note. It is technically true that the defendant did not plead the compromise of the claim that the $400 paid by Cunningham had not been applied on the surety note, as Cunningham directed. Evidence was offered, however, of this fact without any objection on the part of the plaintiff, and witnesses were cross-examined by plaintiff’s attorney in relation thereto. The parties to an action may enlarge the issues by mutually trying out issues of fact not involved in the pleadings.
The contract, however, was pleaded, and was alleged and proved to be a written contract. A written contract imports a consideration. (Gen. Stat. 1901, § 1196.)
It was unnecessary to allege a consideration or to prove in what it consisted, at least until the issue of no consideration had been raised by the reply, which in this case did not raise this issue. (4 Encyc. PI. & Pr. 946.)
The finding of fact, which is embraced in this conclusion of law, as to what constituted the consideration, while justified by the evidence, is wholly immaterial, and no error can be predicated thereon.
The judgment of the district court is affirmed.
All the Justices.concurring. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff in error, the trustee in bankruptcy of an insolvent corporation, brought suit against all its known solvent stockholders to enforce their statutory liability. The defendants filed separate demurrers to the petition, which demurrers were sustained on the theory that the trustee took no title to the statutory cause of action against the stockholders, that such liability can be enforced only after judgment and execution against the corporation, and that no person but a receiver of the corporation appointed under the state law is competent to bring suits of this character.
The statute under which the defendants’ liability arose has been repealed, but, since the obligation is contractual, it is not affected by that circumstance. (Woodworth v. Bowles, 61 Kan. 569, 60 Pac. 331; Hawthorne v. Calef, 69 U. S. 10, 17 L. Ed. 776; McDonnell v. Alabama Gold Life Insurance Co., 85 Ala. 401, 5 South. 120; St. Louis Ry. Supplies Co. v. Harbine, 2 Mo. App. 134; Provident Savings Institution v. The Jackson Place Skating and Bathing Rink, 52 Mo. 552, 555.)
Before the legislative session of 1898 the so-called “double liability” of stockholders in corporations existed as a kind of security obligation which any creditor had the right to enforce for the payment of his debt. By section 15 of chapter 10 of the Laws of 1898 a radical change was made in the character of the liability, in the method of enforcing it, and in the disposition of the funds derived from its enforcement. That section reads:
“The stockholders of every corporation, except railroad corporations or corporations for religious or charitable purposes, shall be liable to the creditors thereof for any unpaid subscriptions, and in addition thereto for an amount equal to the par value of the stock owned by them, such liability to be considered an asset of the corporation in the event of insolvency, and to be collected by a receiver for the benefit of all creditors.”
By, classifying the liability as an asset of the corporation the legislature stamped it as property, and to the extent of making it available fo,r the payment of debts placed it in the general category of collectable obligations due to the corporation directly. This purpose was made clear by the other provisions of the act. The individual right to enforce the liability was taken away from creditors and given to a representative of the corporation itself. The sums collected no longer belonged to creditors in their own right, but consti-' tuted a fund for the benefit of all, to be distributed ratably among them. All this is a complete negation of much of the formerly accepted theory of the liability of stockholders, which is correctly stated in volume 1 of the third edition of Cook on Stock and Stockholders and Corporation Law, section 218, as follows:
“The statutory liability of the stockholder is created exclusively for the benefit of corporate creditors. It is not to be numbered among the assets of the corporation, and the corporation has no right or interest in it. . . . Nor can the corporation upon the insolvency assign it to a trustee for the benefit of creditors. It is a liability running directly and immediately from the shareholders to the corporate creditors. Accordingly, a receiver of an insolvent corporation, invested with ‘all the estate, property and equitable interests’ of the concern, has no power to enforce such a liability as this.”
The law attaches to the shareholders’ stock subscription a contract to pay upon the debts of the corporation, in case of insolvency, a sum equal to the par value of his stock. By the enactment quoted the benefit of this contract is, in legal effect, assigned to the corporation for the use of all its creditors, if it becomes insolvent. While the liability is imposed by statute, it is brought into existence by, and is included in, the contract of the stockholder. The right to enforce it is a right of action arising upon contract. It is, therefore, fairly within the meaning of subdivision 6 of section 70a of the bankruptcy act (30 U. S. Stat. at L. p.' 565), and becomes vested in the trustee in bankruptcy of the corporation upon' his appointment and qualification.
It may be conceded that this right of action does not arise upon contract in the sense in which those terms are most frequently employed; that it is not enumerated among the assets of a corporation in the sense of tangible things which may be bought and sold; that it vests only after insolvency, and is enforceable only after the management of the corporate enterprise- has been taken from its own officers and agents. Still it is a right of action arising upon contract and is an asset belonging to the corporation. The purpose of its creation and preservation is that corporate debts may be satisfied. The provisions of both the state and the. federal law upon the subject are designed to accomplish that result. Everything available should be utilized for that purpose. The clear intention of the statutes, considered in their'entirety, should prevail over the stark, literal signification of single words or groups of words. The legislative enactment in question should unequivocally show that an asset created to meet the sole contingency of insolvency is rendered unavailable by bankruptcy, in order to be given that interpretation.
If it were not possible to say that title to the cause • of action disclosed by the record passed to the plaintiff by virtue of subdivision 6 of section 70a of the bankruptcy act (30 U. S. Stat. at L. p. 565), and if in strictness it cannot be classed, as property which the bankrupt might have transferred or which might have been levied upon and sold under -judicial process within the meaning of subdivision 5 of that section, the trustee’s title might be rested upon implication. There is no provision in the bankruptcy act of 1898, as in the former act, authorizing the trustee to sue upon demands passing to him by virtue of his appointment. But the courts give the law a practical construction and hold the right is conferred by implication. (Pease v. McQuillin, 180 Mass. 135, 137, 61 N. E. 819.) In the case of In re Baudouine, 9,6 Fed. 536, it was said:
“The bankruptcy act, however, cannot be construed so narrowly as to exclude any vested interest constituting an asset available to creditors, merely on the ground that this asset is not expressly enumerated in section 70. Other provisions of the bankrupt act show that the act is designed to cover all the property and estate of the bankrupt and all assets that can in any manner be legally made available for the payment of his debts, and to distribute all those assets equally among his creditors. As an incident to this complete distribution of assets, it further provides for the bankrupt’s discharge from his debts. A discharge in bankruptcy upon any other condition than the complete appropriation of every known asset legally available to creditors would be not only a glaring wrong to creditors but contrary to every conception of a just system of bankruptcy.” (Page 539.)
And in the case of Spencer v. Duplan Silk Co., 112 Fed. 638, it was said:
“It is, no doubt, true, speaking generally, that under section 70ft, Bankr. Act, the trustee takes no better title to the property than the bankrupt himself possessed; but there are exceptions to this statement, as plainly appears from other provisions of the act. Under certain circumstances the trustee is the representative of the creditors, rather than of the bankrupt, in relation to the property of the estate, and he may unquestionably exercise rights and enforce a title that the bankrupt himself could neither enforce nor exercise.” (Page .642.)
These decisions announce the correct rule of interpretation, and the plaintiff in this case is invested with title to the cause of action described in the petition and is authorized to bring suit upon it.
Section 14 of chapter 10 of the Laws of 1898 provides that if property of the corporation cannot be found upon which to levy execution issued at 'the behest of judgment creditors the corporation shall be deemed to be insolvent. A receiver may then be appointed and the liability of the stockholders enforced. From this it is argued that the trustee in bankruptcy has no right to sue until after judgment in a state court against the corporation and the return of execution unsatisfied. Section 15, supra, makes the stockholders’ liability as a corporate asset collectable in the event of insolvency, without restriction. Section 14 provides but one method of ascertaining the fact of insolvency. An adjudication in bankruptcy is another, and whenever insolvency is lawfully established the right to enforce the stockholders’ liability accrues. If, however, judgment and execution were contemplated by the statute as preliminary steps to the enforcement of the .stockholders’ liability the adjudication in bankruptcy under paramount law would excuse the taking of them.
“The law does not require the doing of a vain thing, and, therefore, where the company has become wholly insolvent, has ceased to do business, and assigned all its property to a trustee for the benefit of its creditors, the suit to enforce their statutory liability may be commenced against the stockholders by the creditors, without any of them first recovering a judgment against the company and having an execution issued and returned unsatisfied: Morgan v. Lewis, 46 Ohio St. 1, 17 N. E. 558; Thompson, Liability of Stockholders, § 321.” (Barrick v. Gifford et al., 47. Ohio St. 180, 184, 24 N. E. 259, 21 Am. St. Rep. 798.)
“Although it has been held by the court of appeals, in the case of The Rocky Mountain Bank v. Bliss, 89 N. Y. 338, that a judgment in a court of the state of New York was necessary to fix the liability of a stockholder under section 10 of the act under .consideration, yet the same court, in the case of Shillington v. Howland, 53 N. Y. 371, held that in an action brought to charge a defendant as stockholder in a company organized under the same law an adjudication in bankruptcy of the company excused a compliance with the condition which required a suit to be brought against the company within a year after the maturity of the debt and a judgment to be recovered and an execution to be issued thereon and returned unsatisfied. We see no reason why we should not follow this decision, and it is conclusive of the question under consideration.” (Flash v. Conn., 109 U. S. 371, 380, 3 Sup. Ct.263, 27 L. Ed. 966. See, also, Mueller v. Bruss, 112 Wis. 406, 88 N. W. 231.)
Finally it is contended that the specific procedure prescribed by the state statute must be followed, and that no person except a receiver appointed by the state court can bring the action. The essentials of this procedure are that it must be instituted by an officer of court and not by the stockholders themselves; that it shall be by action and not by special proceeding; that the sums collected shall constitute a fund for the benefit of all creditors; and that such fund shall be. distributed by the direction of a court having power to protect all interests. These conditions are met in every particular except that the official who brings the suit is called a trustee instead of a receiver, and that he is appointed by the bankruptcy and not by the state court. Every matter of substance is present, and mere matters of form and name cannot defeat the proceeding.
The judgment of the district court is reversed, and the cause is remanded with direction to overrule the demurrers to the petition.
All the Justices concurring. | [
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Per Curiam:
This action was brought by the defendant in error to recover $500 paid upon a contract for the purchase of real estate, and for damages. The contract was in writing, and reads:
“Parsons, Kan., October 9, 1902.
“Received of W. C. Gunn $500, being part payment on the N. E. J of section 10, and S. E. £ section 3, township 32, range 20, all in Labette county, Kansas, price to be seventy-five hundred dollars, five hundred dollars now rec. and balance of $7000 to be paid on or before 25th day of December, 1902. I agree to furnish abstract showing good title, and make warranty deed to any person W. C. Gunn may desire, and send same to First National Bank of Fort Scott, Kansas, for collection, and give possession March 1, 1903.
John F. Piper.
Mary Piper.
“W. C. Gunn is to take care of loan after November 1, 1902.”
Prior to December 25, 1902, Piper furnished Gunn an abstract defective in several respects upon its face, and at the suggestion of Gunn some of these defects were cured. As corrected the abstract showed that at least one moiety of the title which had been in several heirs was not in Piper. Information and notice aside from the abstract were also given to Gunn, that a certain moiety of the title which by the abstract appeared to be in Piper was claimed to be in another. Also, the evidence showed on the trial that at least one other moiety of the title which appeared to be owned by Piper was really held in trust by him for another, and that the equitable owner thereof had neither asserted nor relinquished the right thereto.
The action was commenced in April, 1903, was tried without a jury, and the finding and judgment of the court were in favor of Gunn, allowing recovery of the $500 paid on the purchase-price, without damages.
It is contended on Piper’s part that there is no allegation or proof that Gunn performed or tendered the performance of the contract on his part. It is sufficient to say that, so long as the abstract furnished by Piper showed his inability to convey good title by a deed from himself and wife, it was neither necessary nor prudent for Gunn to direct to whom the deed should be made or to tender payment of the remainder of the purchase-price, nor, assuming it to be a part of the contract that he should pay interest on a loan secured by mortgage on the land to be conveyed, that he should pay interest which fell due thereon after November 1, 1902, and before the commencement of the action.
Paraphrasing the language of this court in Denser v. Gunn, ante, p. 748, before Piper could require Gunn to accept the deed of himself and wife he must have presented such an abstract of title as upon its face showed the title to the land, which by his contract he was obligated to convey, tobe in himself.
“When a defect in the abstract will cause a reasonable doubt in the mind of a prudent and intelligent person, acting upon competent legal advice, the deed may be refused.” (Denser v. Gunn, supra, and authorities there cited.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
This case presents the question whether the trial court ruled correctly in holding a tax deed to be good against an attack made after it had been of record for five years. The only objection to the deed necessary to be considered is that it fails to show with certainty the day of the sale on which it is based. It covers five disconnected tracts. Its recitals are in substance that the county treasurer, “on the 2d and 4th days of September, A. D. 1890,” offered each of said tracts for sale as it was reached in its turn and sold it. It is of course impossible that a single tract should have been sold on different days, and this language can only be interpreted to mean that a part of the lots were sold on the 2d and the rest on the 4th. The tract here involved is the third on the list in the order in which they are numbered in the deed. There is nothing in any part of the instrument from which any inference can be drawn as to whether this particular tract was sold on the first day named or on the second. There is therefore a failure to show upon what day the sale was in fact made. If this omission is ordinarily fatal to a tax deed the one here involved cannot be saved by the consideration that it-discloses that the sale took place upon one or the other of two days and that the interval between them is slight. A requirement that the date of a transaction shall be designated is not met by merely restricting the possible dates to two. Whether the interval between them is small or great cannot affect the matter.
Is such omission fatal? The statute does not in terms require a tax deed to show the day of the sale. It does, however, provide that the deed must be sub stantially in a prescribed form, of which the following is a part:
“And whereas, the treasurer of said county did, on the- day of-, A. D. -, ... at (an adjourned, sale of) the sale begun and publicly held on the first Tuesday of May, A. D.-, expose to public sale . . . the real property above described, . . . and whereas, at the place aforesaid, A. B., . . . having offered to pay the sum of -dollars and --cents, . . . °the said property was stricken off to him at that price.” (Gen. Stat. 1901, § 7676.)
This amounts to a requirement that the date of sale shall be stated unless it can be said that such date is not a material or substantial matter. It is true that the deed shows affirmatively that the land was offered in the course of the regular September sale, and sold more than three years before the deed was executed. It is therefore difficult to see how the failure to recite the exact date could have misled or in any way prejudiced the owner or any one interested in the land.
In Haynes v. Heller, 12 Kan. 381, it was said in the syllabus that a tax deed “must show upon its face the time at which the property was sold, or it will be void,” and in the opinion that “the time at which the sale is made is of course material” and. that the deed should “show the time of sale.” (Page 391.) These expressions, however, are employed arguendo, and the context suggests that they have especial reference to the necessity that the deed shall indicate that the sale was made at the time fixed by law — that is, under the present statute, during the period beginning with the first Monday of September — a requirement which in this instance is met by other recitals than that quoted. Nevertheless, the fact remains that the exact date of the sale of a particular tract marks an important point in the proceedings leading up to a tax deed; it is the time from which interest on the amount of delinquent tax is computed and from which the right to redeem runs. In view of this consideration the implied requisition that the deed shall recite it must be deemed as mandatory as though expressly stated, and by the principle followed in Gibson v. Kueffer, 69 Kan. 534, 77 Pac. 282, the failure to comply with such a requirement is fatal to the deed, even upon an attack made after it has been of record for more than five years.
The judgment is reversed and the cause remanded for further proceedings in accordance herewith.
All the Justifies concurring. | [
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The opinion of the court was delivered by
Mason, J.:
John Gereke was convicted upon a charge of statutory rape, and appeals. In the course of the impaneling of the jury, and, so far at least as the record shows, before the defendant had exercised any of his peremptory challenges, the court excused a talesman who had been examined only as to his residence, refusing to allow any inquiry as to his qualifications except in that connection. The defendant claims that the evidence failed to show any incompetence on the part of the juror and that it was error for the court to dismiss him. Whether or not the juror on the facts shown was competent to serve, no error was committed of which the defendant can complain, by reason of the rule thus stated in Stout v. Hyatt, 13 Kan. 232:
“It is not a substantial error for the district court to discharge a juror during the time the jury are being impaneled, although the juror may be discharged for an insufficient reason, where an unexceptionable jury is afterward obtained and where the party complaining has not exhausted his peremptory challenges.” (Syllabus.)
While this rule may not have been heretofore formally announced by this court except in civil cases, Stout v. Hyatt has been- cited with approval in criminal cases upon the subject of the court’s power to excuse jurors. (See The State v. Miller, 29 Kan. 43; The State v. Sorter, 52 Kan. 531, 34 Pac. 1036.) The rule is a sound one and there is no reason for limiting its operation.
A second complaint is made of the retention of a juror who was challenged by the defendant upon the ground that his name did not appear on the personal-property assessment roll. There was no showing that the juror’s name was not on the real-estate assessment roll. The statute (Gen. Stat. 1901, § 3796) requires the original jury-list to be selected from the “assessment roll” of the preceding year. The expression “the last assessment rolls of the several township and city assessors of the county” (Gen. Stat. 1901, § 1867) has been construed to include both the personal-property and real-estate assessment rolls. (The State, ex rel., v. Comm’rs of Rawlins Co., 44 Kan. 528, 24 Pac. 955.) In The State v. Reed, 53 Kan. 767, 37 Pac. 174, 42 Am. St. Rep. 322, it was strongly intimated that the words “assessment roll,” as used in the jury law, should by the same reasoning be held not to refer exclusively to the personal-property roll but to include the real-estate roll as well. If the question is to be regarded as still open we now decide that to be the true construction of the phrase. It results that the challenged juror was ■ not shown to be incompetent.
The complaining witness testified to the act relied upon for conviction, and in corroboration of this testi mony evidence was introduced of the birth of a fully developed child at the expiration of the usual period of gestation. She also testified that she had not had sexual intercourse with any person other than the defendant. Upon cross-examination she was asked whether at about the time she alleged the offense to have béen committed she had not been at various specified places in company with other young men. Later a similar question was asked of another witness. Objections to this line of inquiry were sustained, and of this complaint is made. Before finally passing upon the question the court asked whether an attempt would be made to show acts of illicit intercourse with other persons and was informed by defendant’s counsel that they admitted that they were unable to produce evidence to that effect. The questions asked regarding the complainant’s relations with other men suggested no compromising or even indiscreet conduct on her part. The mere fact that she was in their company and that it might be said that there was a possibility that some one of them was the father of her child had no tendency to contradict her statement as to its paternity. The questions might have been permitted without unduly extending the latitude properly allowed in cross-examination, but it was not error to reject them.
The final complaint requiring consideration is based upon the refusal of the court to give an instruction as follows:
“A few facts or a multitude of facts proved all consistent with the supposition of guilt are not enough to warrant a verdict of guilty. In order to convict on circumstantial evidence, not only the circumstances must all concur to show the defendant committed the crime, but they must be inconsistent with any other rational conclusion.”
In The State v. Andrews, 62 Kan. 207, 61 Pac. 808, it was held to be error to refuse such an instruction in a case where the evidence against the defendant was partly circumstantial. There, however, although there was some direct evidence of the defendant’s guilt, the situation was such that the conviction might have been due to the circumstantial evidence alone. Here the state’s case was established by the positive testimony of the complaining witness, if that testimony was believed. Some circumstantial evidence was introduced, but it was incidental and was only important so far as it tended to corroborate the direct evidence referred to. It could not by itself have sustained a conviction. It is therefore obvious that the situation did not call for the instruction appropriate where circumstantial evidence is relied upon to establish the defendant’s guilt, and the court committed no error in refusing to give it. The judgment is affirmed.
(87 Pac. 759.)
SYLLABUS BY THE COURT.
Statutory Rape — Cross-examination of Prosecutrix. In a prosecution for rape, where the charge is that the defendant had sexual intercourse with the complaining witness with her consent, and the state relies upon the complainant’s story, corroborated only by testimony that the defendant was with her at the time of the alleged intercourse and that at the expiration of the usual period of gestation she gave birth to a child, the defense should be permitted to cross-examine her fully regarding her association with other young men at about the time of her conception, even although no distinct offer is made to show that she had improper relations with any of them; and held, that under the facts of this case the refusal to permit such inquiry was material error.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
On February 4, 1886, while Gove county was unorganized and was attached to Trego county for judicial purposes, the officers of Trego county sold to George K. Spencer a half-section of school-land at three dollars per acre. He paid one-tenth of the purchase-price in cash, and continued to pay the accruing interest on the balance until February, 1897, when he made default. No other payment was made by him, nor was there any offer of payment, either of interest or taxes, until September, 1905, when he proposed to pay the interest and taxes then due, but the county treasurer to whom tender was made declined to inform him of the amount due according to the records, or to receive payment, upon the ground that Spencer’s contract rights had been forfeited and the land sold to another. It appears that in 1898 an attempt was made to forfeit the contract rights of Spencer. Two notices of forfeiture, one for each of the quarter-sections of land purchased by Spencer, were issued by the county clerk of Gove county and placed in the hands of the sheriff for service. Within fifteen days afterward that officer returned each notice with the following indorsement:
“Received this notice this 8th day of January, 1898, and served the same by posting a certified copy in the county clerk’s office, as the within-named George K. Spencer cannot be found in the county.
“January 13,1898. W. E. Terrill, Sheriff”
An item of fees was appended to each. The notices and returns were filed in the county clerk’s office, and in pursuance of these the land was sold to a third party,. who purchased with such notice and knowledge of Spencer’s rights as the public records imparted. Later an assignment of the purchaser’s rights was made to Arthur Stansbury, who has since paid the balance of the purchase-price and has received a patent from the state. This proceeding is brought by Spencer to compel the county treasurer of Gove county to receive payment of the defaulted interest and taxes, upon the theory that the proceedings to forfeit his rights in the land were ineffectual and void.
It is first contended that mandamus will not lie in this case, and that if the plaintiff has any remedy it is an equitable one against Stansbury, who holds under the second sale. If there has been no forfeiture of plaintiff’s rights it is the official duty of the county treasurer to accept the money tendered by plaintiff, and the performance of that duty may be compelled by mandamus. A purchaser in default is entitled to relieve himself from the default by making payment and perfecting his title to the land purchased. Payments can only be made to the county treasurer, and the plaintiff is not in a position to protect his rights nor to contest with others unless the tendered payment is received. He has no other adequate remedy as against the treasurer, and a remedy which will defeat the right to mandamus must be against the defendant and not against some third party. {Williams v. Clayton, 6 Utah, 86, 21 Pac. 398; Palmer v. Stacy, 44 Iowa, 340; 19 A. & E. Encycl. of L. 746.) The fact that there was another claimant for the land is no reason why the county treasurer should have undertaken to decide between the rights of the contending parties and refused to accept the payment. The only duty of the county treasurer in the matter was to accept, payment from Spencer and give him a receipt for the amounts paid. (Wilkie v. Howe, Treasurer, 27 Kan. 518; Scott v. Schwab, 70 Kan. 306, 78 Pac. 443.)
It is further contended that the action cannot be maintained because the plaintiff’s rights have been lost by abandonment. Even if it were conceded that an interest in real estate could be devested by abandonment, there is no room for that contention. The general rule is that a title to land cannot be so lost. (Barrett v. Coal Co., 70 Kan. 649, 79 Pac. 150.) Whatever the general rule may be as to the loss of an equitable interest under a contract of purchase by abandonment, the policy of the state in respect to the disposition of school-land is against that theory. The statute, which expresses the state’s policy, provides that a purchaser of school-land who is in default may pay the delinquent interest and taxes, and-this without limitation as to the time of default or the circumstance of possession. (Laws 1903, ch. 477.) The privilege accorded by statute cannot be denied by the county treasurer, and the right of redemption remains in the purchaser until his rights are forfeited as the statute provides. Even after the notice of forfeiture is given the purchaser still has sixty days within which to make payment of the delinquent amount, and may thus prevent a forfeiture. (Gen. Stat. 1901, § 6356.)
Was there a forfeiture of plaintiff’s rights? That must be determined from the notice issued and the return of service. The returns show fatal defects. No personal service was made, and the essentials to a constructive service do not legally appear. Notice can only be given by posting where the purchaser cannot be found and no one is in possession of the land. The returns of the sheriff show that Spencer could hot be found in the county, but they do not show that no one was in possession of the land. The returns further fail ,to show that the notices put up in the county clerk’s office were posted in a conspicuous place. The failure to observe these requirements defeats the attempted forfeiture. (Knott v. Tade, 58 Kan. 94, 48 Pac. 561; Furniture Co. v. Spencer, 59 Kan. 168, 52 Pac. 425; True v. Brandt, 72 Kan. 502, 83 Pac. 826; Phares v. Gleason, 73 Kan. 604, 85 Pac. 572.)
To avoid the effect of these omissions the defendant proposes to show that no one was in possession of the land, and also that the notices were posted in a conspicuous place in the county clerk’s office. The testimony is not admissible. The basis of a forfeiture is the notice and the return of service. It rests upon written evidence of official action, and is not left to. the uncertain recollection of officers who may be asked eight years afterward what steps toward a forfeiture were in fact taken. As was said in Knott v. Tade, supra, jurisdiction must affirmatively appear, and “the notice and the return . . . are jurisdictional.” (Page 96.) These are to be found in the county clerk’s office, and to them any interested party may look to determine the status of the land. An examination of the notices issued in this case, and the returns of service made thereon, would have disclosed to the purchaser as well as to the officers or a proposed purchaser that the proceedings were invalid. The jurisdiction cannot be supplied by oral proof or an attempt in this proceeding to amend the returns made in the forfeiture proceedings.
There is a final contention that the sale to plaintiff in 1886 was invalid for the reason that the land is situated in Gove county, then an unorganized county, while it was sold by the officers of Trego county. In the statutory provision relating to the sale of school-land there is no intimation of a reservation of the land situated in unorganized counties. It is expressly provided that all school-land within the state may be sold in the manner therein stated. (Laws 1876, ch. 122, art. 14, § 1.) By the attachment of Gove county to Trego. county the former became a municipal township of the latter, with township officers and all things pertaining to the rights and privileges of a township, and subject to the same regulations and liabilities as other townships of the county. Some exceptions are named in the act, but none of them relates to the sale of school-land. (Laws 1873, ch. 72, § 31.) The proceeding to initiate a sale of school-land is placed upon the householders of the township in which the land is situated. Since an unorganized county becomes a township pf the organized county to which it is attached, the provisions for initiating and carrying out a sale of school-land appear - to be appropriate to an unorganized county. This appears to have been the legislative interpretation, as the legislature of 1886 amended the school-land law by adding a provision that school-land lying in an unorganized county should not thereafter be- subject to sale until three years after the county shall have been organized. (Laws 1886, ch. 150, § 1.) This act indicates a change of policy on the part of the state with reference to the sale of school-land in unorganized counties, and proceeds on the theory that theretofore it was subject to sale the same as in the organized counties of the state.
Some other questions have beén argued by counsel, but the decision reached renders them immaterial to this consideration. The peremptory writ is allowed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
The only question" in this case arises upon an objection to the introduction of any evidence under the petition, for the reason that it did not state a cause of action against the defendant. The objection was sustained. The petition, omitting the caption, reads:
“The plaintiff, for cause of action against the defendant, states: That he is the owner in fee simple of the following real estate, pasture lands, situate in Logan county, Kansas, to wit, all of sections number 27, 29 and 33, in township 11, range 37 west of the sixth principal meridian.
“That plaintiff has been the legal owner thereof since about the 18th of July, 1902, and as such owner has been entitled to the possession, enjoyment and rents and profits thereof, from said 18th day of July, 1902, down to the present time of bringing this action; that said defendant has all of said real estate within his enclosed pasture for stock, and has ever since plaintiff became the owner thereof, and said defendant has continuously, from said 18th day of July, 1902, kept large herds of cattle and horses in said enclosed fenced pastures, and his said live stock have continuously grazed upon, over and on all of said real estate of plaintiff, dispasturing, subsisting upon, and destroying the native grasses growing thereon, to the great pecuniary damage of the plaintiff from the said 18th day of July down to the time of bringing this action, a period of over fifteen months, continuously; that the fair and reasonable rental value for the said sections of land for grazing purposes for live stock is forty dollars per section per year; that said fair and reasonable value of the entire three sections from the said 18th day of July, 1902, down to the present time, a period of one year and three months, is the sum of $150; that said sum is justly due from said defendant to plaintiff, for the use and enjoyment of the said real estate by said defendant for his live stock to graze upon and dis-pasture the native grasses growing thereon, and said defendant is liable in law as upon an implied promise to pay therefor what the use thereof is reasonably worth; that plaintiff has demanded the payment of the same, but the defendant neglects and refuses to pay therefor, though justly indebted to plaintiff therefor, and said $150 is wholly unpaid.
“That defendant is in the exclusive use, possession and enjoyment of all of three sections of said land, and has had such exclusive use, possession and enjoyment by virtue of defendant’s fence enclosure of said lands together with the lands of said defendant included in said defendant’s enclosure ever since about the 16th day of July, 1902, down and including the present time, a period of over two years last past; that during all of said time the defendant- has exclusively used, enjoyed and possessed all said lands for pasturing his said stock, and defendant’s said stock has during all said time grazed upon, roamed over and dispastured the native grasses growing upon said three sections of said plaintiff, for all said time, over two years last past, to the great loss and injury of the plaintiff and to his pecuniary damage; that the fair and reasonable value of said use of said plaintiff’s lands so used and possessed by said defendant and his live stock is the sum of forty dollars per section per year, and for the use of said three sections for a period of two years the total sum of $240, no part of which has been paid, though justly due and owing said plaintiff in manner and form as alleged in said petition, and this amendment thereto, and plaintiff demands judgment against said defendant for said sum of $240,- with interest and costs of suit.
“Plaintiff therefore demands judgment against the said defendant for the said sum of $150, with six per cent, interest thereon from the 18th of October, 1903, besides cost of suit.”
As against an objection of this kind the pleading must be liberally construed in favor of the pleader. (Laithe v. McDonald, 7 Kan. 254; Mitchell v. Milhoan, 11 Kan. 617; Barkley v. The State, 15 Kan. 99, 107; Street Rly. Co. v. Stone, 54 Kan. 83, 37 Pac. 1012; Weber v. A. T. & S. F. Rld. Co., 54 Kan. 389, 38 Pac. 569.) The petition, so construed, shows that the defendant had the,possession of the plaintiff’s lands and enjoyed the use thereof for some years. No adequate reason appears in the petition why the defendant should not pay therefor. When a person fences in the lands of another, and uses them for pasturing purposes the same as if he were the owner, payment ought to be made therefor or some adequate reason given for not doing so. The defendant may have a good defense, but it does not appear in the petition.
The judgment of the district court is reversed. It is directed-that the objection to the introduction of evidence be overruled, and that such further proceedings be had as may be proper.
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
The plaintiff in error, W. S. Upham, owned a residence in the city of Coffeyville, which he rented to the defendant in error, Elizabeth Head. Soon after taking possession of the property Mrs. Head requested Upham to repair the covering or platform of the cistern. In compliance with this request Mr. Bled-son was sent by Mr. Upham to the premises with instructions' to “see what was needed and fix them up in good order.” Bledson made the repairs desired. Soon afterward Mrs. Head fell through the covering into the cistern and thereby sustained serious injuries. Afterward she commenced this action to recover damages for the injuries so received. She recovered a judgment for $1690, and the defendant, being dissatisfied, brings the case here for review.
The first error assigned is the overruling of the defendant’s demurrer to the plaintiff’s petition. The petition alleged that the plaintiff was in possession of the premises, as tenant of the defendant, under a written lease for a term of six months, beginning February 5, 1903. Then follows the paragraph objected to, which reads:
“This plaintiff further alleges that on or about the 20th day of July, 1903, and while attending to her ordinary household duties, and while being and standing upon the platform or covering of the cistern on said above-described premises, she was, by the negligence of the said defendant, his agents, servants and employees, injured by being precipitated into the said cistern; that the covering on the said cistern had been so negligently constructed by the agents and servants of the said defendant that as this plaintiff stepped upon a board which formed a part of the covering of the said cistern, one end of which board had been nailed to pieces of wood or stringers across the said cistern while the other end of the said board was not nailed or fastened to anything, so that as the plaintiff stepped upon the said board the said board gave way, by reason of its not being nailed or fastened to the stringers or across pieces, and this plaintiff was thereupon and with great force thrown through the said hole in the covering of the said cistern, and through no fault or negligence on her part was violently thrown into the said cistern, and plaintiff was greatly injured thereby as follows, to wit,” etc.
It is claimed that a landlord is not liable to a tenant for defects existing in the leased premises unless the defect is known to and concealed by him; that the statement in the petition that the covering on the cistern was negligently constructed refers to the original building of the cistern, which antedates the lease; and that therefore an additional allegation of defendant’s knowledge of the defect was essential, and, for want of this averment, the petition is subject to demurrer.
There was no motion filed to make the petition more definite and certain, and therefore its statements must be construed liberally in favor of the pleader. (Bowersox v. Hall, 73 Kan. 99, 84 Pac. 557; The Western Massachusetts Insurance Company v. Duffey, 2 Kan. 347; Stewart v. Balderston, 10 Kan. 131; Crowther v. Elliott, 7 Kan. 235; Park v. Tinkham, 9 Kan. 615; La Harpe v. Greer, post.) If the words “negligently constructed” refer to the original building of the cistern, as claimed by the defendant, then if such building was done negligently by the “agents and servants” of the defendant, as alleged, he would probably be held to have knowledge thereof when the injuries were sustained by the plaintiff, as every person is supposed to know as much about his own business as his agents and servants do. With this view of the. petition, the demurrer was properly overruled.
This question, however, does not necessarily arise in this case, for under the liberal rule of construction above mentioned the court was justified in holding that the evidence offered was admissible even though the work done on the cistern was in a sense repairs, rather than original construction. It appears from the evidence that the work on the covering to the cistern occurred while plaintiff was in possession of the premises as a tenant of the defendant, and that the work was done under the direction of the defendant. It also appears that the covering was practically torn up and rebuilt or reconstructed, so that the difference between the meaning of the words constructed and repaired as applied to the work done is too slight to be seriously considered. Such a variance is not sufficient to constitute error. (Code, §133; Gen. Stat. 1901, § 4567; Planing-mill Co. v. Baker, post.)
The defendant undertook to place the cistern in a sound and safe condition. He selected a person of his own choice to do the work. When the work was completed this workman informed the plaintiff that the cover was all right and safe. In fact it was not safe, but dangerous. The boards of the cover were nailed at one end only, and when plaintiff stepped on the other end the board tipped up and let her into the cistern. The defendant was liable for the negligence of his employee. He was bound to take notice of what his employee did or omitted to do. The knowledge of the employee in such matters is the knowledge of the employer. (1 Thomp. Com. Law of Neg. § 1142; Lasker Real-estate Ass’n v. Hatcher [Tex. Civ. App.], 28 S. W. 404; Lynch v. Ortleib & Co. [Tex. Civ. App.], 28 S. W. 1017, affirmed in 87 Tex. 590, 30 S. W. 545; H. & G. N. R. R. Co. v. Meador, 50 Tex. 77; Bernauer v. Hartman Steel Co., 33 Ill. App. 491; Peerless Manfg. Co. v. Bagley, 126 Mich. 225, 85 N. W. 568, 53 L. R. A., 285, 86 Am. St. Rep. 537; Wertheimer v. Saunders and others, 95 Wis. 573, 70 N. W. 824, 37 L. R. A. 146; Gill v. Middleton, 105 Mass. 477, 7 Am. Rep. 548; Gregor v. Cady, 82 Me. 131, 19 Atl. 108, 17 Am. St. Rep. 466; Hamilton et al., Executors, v. Feary, 8 Ind. App. 615, 35 N. E. 48, 52 Am. St. Rep. 485.)
The question of contributory negligence is argued by the plaintiff in error, but the only averment upon this subject is that stock was permitted to run loose on the premises, and the cistern cover was broken thereby. No proof was given of this fact. It appears from the evidence that the plaintiff was present when the work was done by Bledson, and it is claimed that she must have known whether it was negligently done' or not. But she appears to have relied upon the workman to do the work properly, and his .failure sufficiently to nail the boards to the stringers was not an omission open to her casual observation. Bledson was not her servant and she had no control over him. The question of contributory negligence, therefore, need not be considered. No error appearing, the judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
An execution was levied upon land belonging to Hugh Cameron, who brought a suit seeking to enjoin its sale upon the ground that it was exempt because it was his homestead. He was denied relief, and prosecutes error. Whether the property was exempt was a question of fact, which was heard and determined upon conflicting oral testimony. The finding made by the trial court did not lack support in the evidence and is not subject to review here.
The injunction was asked upon the further ground that the sheriff’s notice of sale was defective in that it failed to specify the county or state in which the property to be sold was situated. If the description was in fact insufficient the defect was a mere irregularity, for which the defendant had ample remedy in the ordinary course of procedure by objection to the confirmation of the sale. In such a case injunction does not lie. (16 A. & E, Encycl. of L. 403-405; 3 Freeman, Executions, 3d ed., § 436.) The judgment is affirmed.
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The opinion of the court was delivered by
Greene, J.:
Plaintiffs contend: (1) That the judgment against the United States in the case of United States v. Missouri &c. Railway, decided in the circuit court of the United States and afterward taken to the supreme court (141 U. S. 358, 12 Sup. Ct. 13, 35 L. Ed. 766), was a full and complete judicial determination that Ard had acquired no equity in the real estate by his settlement and several attempts to homestead it, and that such judgment is a complete bar against his contentions in this action; (2) that the letter of the land commissioner of March 19, 1863, withdrawing all the odd-numbered sections for ten miles on each side of what he supposed would be the line of the Leavenworth, Lawrence & Galveston railroad was a segregation and setting apart of this land for this railroad company — a withdrawal from market of all odd-numbered sections indicated in the diagram— and that the lands thus withdrawn remained permanently exempt from preemption entry and homestead settlement.
We do not agree with the first contention. The action of the United States against the several railroad companies was not commenced, as suggested by plaintiffs, by the procurement of Ard. It was-brought by-the attorney-general of the United States at the request of the secretary of the interior, under the act of congress of March 3, 1887, authorizing and directing the secretary of the interior “to immediately adjust, in accordance with the decisions of the supreme court, each of the railroad land grants made by congress to aid in the construction of railroads and heretofore unadjusted.” (24 U. S. Stat. at L. p. 556.) Ard, by settling on this land and attempting to perfect a homestead title thereto, did not thereby become a ward of the government. He did not constitute the United States his trustee to litigate for him his equitable rights to the land upon which he had settled, nor did it become such trustee by operation of law. Ard was not made a party to the action. He had no control or supervision over any issue in the case. He was asking nothing at the hands of the court, and so far as anything appears to this court no person was asking anything against him.
The act did not authorize the secretary of the interior, to institute proceedings in equity to settle controversies arising between individual claimants to these lands, nor to adjust disputes between the.railroad companies and persons claiming adversely to them. The action was one to determine the right of the railroad companies to hold the legal title to these lands as against the United States. The questions involved were those arising exclusively between the United States on the one side and these corporations and persons claiming the legal title to the lands under them on the other side. Ard was not made a party because his equitable claim to the land, as. against the railroad company or its grantee, was not involved and could not be determined. The United States was not interested in the litigation pending between Ard and Brandon involving their equitable rights to any particular tract of land. In Ard v. Brandon, 156 U. S. 537, 15 Sup. Ct. 406, 39 L. Ed. 524, it was urged that, under the authorities of the cases of Kan. City, &c., R. R. Co. v. Attorney-general, 118 U. S. 682, 7 Sup. Ct. 66, 30 L. Ed. 281, and United States v. Missouri &c. Railway, 141 U. S. 358, 12 Sup. Ct. 13, 35 L. Ed. 766, sustaining the regularity and validity of certain patents to the Missouri, Kansas & Texas Railroad Company, an individual could not thereafter contest nor question the right of the company to any lands to which it held . patent. In the opinion, referring to these cases, the court said:
“No adjudication against the governmént in a suit by it to set aside a patent estops an individual not a party thereto from thereafter setting up his equitable rights in the land for which the patent was issued.” (Page 541.)
It is also contended that if it should be held that Ard was not a party by. representation to the suit in United States v. Missouri &c. Railway, supra, and is not for that reason concluded, he should nevertheless, by reason of his presence and participation in that action, be held to be estopped by that judgment. We have no doubt of the correctness of the rule that one not a party to the record may, by his conduct in directing, managing and actually participating in the trial, be estopped by the judgment therein' as to any question actually litigated and decided. However, the vital question in this case is the effect of the order of withdrawal, and- we do not find that this question was tendered by the bill, nor litigated in the action, or determined by the judgment.
Plaintiffs’ second contention — that the diagram and order of withdrawal of March 19, 1863, had the effect to segregate all the lands included in the diagram from the public domain and set it apart for the exclusive use of railroad companies — is not well founded, nor was such the understanding of the land department, as is conclusively shown by the order from that department to the local land-office of April' 20, 1866, after the Leavenworth, Lawrence & Galveston railroad had filed its map of definite location, directing the withdrawal of certain lands for its benefit. In this letter the commissioner said:
“Also, where settlement may have been made on an odd-numbered section outside of the ten and within the twenty-mile limits prior to the receipt by you of this order of withdrawal the settler will be protected in his rights by reason of such prior settlement.”
Regardless of any interpretation subsequently placed upon the order of withdrawal of March 19, 1863, by the land commissioner, and regardless also of what such order contained, the grant itself reserved from ' its operation all of the public domain which had, prior to the definite location of any line of road, been sold by the United States or otherwise reserved, and all the lands to which, prior to such definite location, the right of preemption or homestead settlement had attached, and lands falling within any of these provisions when the line was definitely fixed were excluded from the granting clause of the act. Ard’s homestead rights attached prior to the definite location of any line of railroad. He is therefore within the exact provision of one of the reservations in the grant. The pretended withdrawal, if given the effect contended for by plaintiffs, would be giving such commissioner power to nullify one of the important reservations in the grant. This precise question was before the supreme court in Nelson v. Northern Pacific Railway, 188 U. S. 108, 23 Sup. Ct. 302, 47 L. Ed. 406. The grant contained the following reservations:
“That there be, and hereby is, granted to the ‘Northern Pacific Railroad Company,’ its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores, over the route of said line of railway, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile,'on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any state, and whenever on the line thereof, the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from preemption, or other claims or rights, at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land-office; and whenever, prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or preempted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the secretary of the interior, in alternate sections, and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections.” (13 U. S. Stat. at L. p. 367.-)
An order of withdrawal dated November 1, 1873, was issued by the commissioner of the land-office, which included the land in controversy in that action. Subsequently, in 1881, and before the railroad company had definitely located its line, Nelson made a homestead settlement upon a portion of the land within the place limits as shown by the map of definite location. The contention was that the withdrawal order withdrew the land from preemption and homestead settlement. In the opinion the court said:
“But we have also seen, looking at the third section, which was the granting section of the act, that congress did not grant every odd-numbered alternate section within the general limits specified, but only the odd-numbered alternate sections to which the United States had full title, and which had not been previously reserved, sold, granted or otherwise appropriated, and which were free from preemption or ‘other claims or rights’ at the time the line of the road was definitely fixed — giving to the railroad company the right to select lands, within certain limits, in place of such as were found, at the date of definite location, to have been disposed of or to be ‘occupied by homestead settlers.’ ” (Page 116.)
It was. held that the order of withdrawal .did not withdraw the land from homestead settlement, and many cases were cited sustaining this conclusion. In the opinion the expressions used by Mr. Justice Field in Buttz v. Northern Pacific Railroad, 119 U. S. 55, 72, 7 Sup. Ct. 100, 30 L. Ed. 330, relied upon by plaintiffs, to the effect that when the general route of that road was made known by a map duly filed and accepted “the law withdraws from sale or preemption the odd sections to the extent of forty miles on each side; the object of the law in this particular is plain; it is to preserve the land for the company to which, in aid of the construction of the road, it is granted,” are quoted and commented on as follows:
“But it is evident, in view of both prior and subsequent decisions, that this language is not to be taken literally or apart from the other portions of the opinions of the eminent jurist who delivered the judgment of the court. If, upon the filing and acceptance of the map of general route, the law withdrew the odd-numbered sections, then the previous holding in many cases that until definite location the grant was a float, with no interest in specific sections being acquired by the railroad company, would be meaningless; and there would be some difficulty in congress appropriating such lands prior to definite location. Indeed, it is manifest that the court did not mean to announce any new doctrine in the Buttz case; for Mr. Justice Field, when delivering judgment in that case, said that the charter of the Northern Pacific Railroad Company contemplated ‘the filing by the company, in the office of the commissioner of the general land-office, of a map showing the definite location of the line of its road, and limits the grant to such alternate odd sections as have not at that time, been reserved, sold, granted, or otherwise appropriated, and free from preemption, grant, or other claims or rights.’ ” (Page 120.)
Again, in the later case of Sjoli v. Dreschel, 199 U. S. 564, 26 Sup. Ct. 154, 50 L. Ed. 311, it was said:
“From the numerous cases in this court relating to the above act of July 2, 1864, the following propositions are to be deduced: . . . That no rights to lands within indemnity limits will attach in favor of the railroad company until. after selections made by it with the approval of the secretary of the interior;
“That up to the time such approval is given, lands within indemnity limits, although embraced by the company’s list of selections, are subject to be disposed of by the United States or to be settled upon and occupied under the preemption and homestead laws of the United States; and,
“That the secretary of the interior has no authority to withdraw from sale or settlement lands that are within indemnity limits which have not been previously selected, with his approval, to supply deficiencies within the place limits of the company’s road.” (Page 565.)
A critical examination of the cases which are said to maintain a contrary rule will show that they were cases arising under grants which directly authorized a withdrawal, or between original and subsequent grantees claiming the same lands, and in the latter cases the question was what was to be understood by the term “public lands,” as used in the subsequent grant — that is, whether it was exclusive of lands covered by a former grant not yet earned. It happened in many of the cases that the lands covered by the prior grant had been withdrawn by the secretary of the interior, but this was not the controlling feature of the decisions. The holdings generally have been that the term “public lands,” as used in the subsequent grant, excluded lands included within prior grants.
The case of Wolsey v. Chapman, 101 U. S. 755, 25 L. Ed. 915, cited by plaintiffs, belongs to the first class. There the controversy arose over a general land grant made to the state of Iowa of 500,000 acres of land for internal improvements, dated September 4, 1841. These lands were to be selected from any public lands, “except such as is or may be reserved from sale by . . . proclamation of -the president of the United States.” (5 U. S. Stat. at L. p. 455.) April 6, 1850, the secretary of the interior directed that certain lands in the state of Iowa be reserved from sale in order to-settle the rights of rival claimants thereto. On July 20, 1850, the agent of the state of Iowa having in charge the school-lands and school-fund gave notice at the general land-office that he had selected a portion of lands thus withdrawn as a part of the 500,000- acre grant under the act of 1841. It was held that the order of withdrawal was authorized by the grant and all lands which had at the time been reserved and all that might thereafter be reserved by the proclamation of the president were excepted from the grant. It was also held that the order of withdrawal issued by the secretary of the interior must be held to, have been by proclamation of the president and was the withdrawal provided for in the grant.
The case of Northern Lumber Co. v. O’Brien, 139 Fed. 614, 71 C. C. A. 598, also relied upon by plaintiffs, does not involve the question we are called upon to decide. It does, however, recognize the rule as here stated. In distinguishing the question presented to it from the one in Nelson v. Northern Pacific Railway, supra, and other similar cases, the court said:
“None of these cases has particular reference to or makes the decision turn upon the clause, ‘there be, and hereby is, granted . . . every alternate section of public land/ which makes the grant one in prsesenti of land then public, but instead each had particular reference to and makes the decision turn upon the limitation on the granting clause, which makes it also requisite that ‘the United States have full title, not reserved, sold, granted or otherwise appropriated, and free from preemption, or other claims or rights at the time the line of said road is definitely fixed.’ They all recognize the well-established rule, that the grantee under a railroad land grant acquires, by designating the general route of its road, only an inchoate right to the odd-numbered sections granted by congress, and that until the definite location of the road these sections remain within the disposing power of congress, and this, even though they be withdrawn for the protection of the grant, as in the present case.” (Page 620.)
The well-established rule, therefore, is that where lands are granted to a railroad, with certain reservations, for purposes designated in the grant, in the absence of express authority the secretary of the interior or the land commissioner is powerless to make any order with reference thereto which will have the effect to de feat the reservations. Congress has exclusive authority to dispose of the public domain, and in the absence of its adoption of any specific rule for carrying out its purpose the land department may adopt such, rules and regulations as to it may seem proper for that purpose; but in the absence of express authority that department is powerless to adopt a procedure which will defeat the expressed intention of congress in the disposition of the public domain. Congress, in the grant in question, expressly reserved from its operation all lands sold or reserved by the United States or to which the right of preemption or homestead settlement attached when the line of railroad or its branches should be definitely fixed. The lands falling within these reservations Avere not granted to the railroad companies,- and the land commissioner had no authority by any act to deprive those for whose benefit the reservations were made of the privilege of exercising that right. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
Appellant was charged with the crime of statutory rape upon the person of Clara Hamilton, a child fifteen years of age: At the June term, 1905, of the district court of Thomas county he was convicted, and appeals.
The prosecuting witness is his own daughter. She swore to the complaint, but upon the trial when first called as a witness denied the truth of her former statements and asserted that the appellant was not guilty. The trial court permitted the attorney for the state to cross-examine her at great length, and upon her persisting in the denial of the truth of the charges her further examination was postponed until another witness was called, and she was, in the presence of the jury and at the request of the state’s attorney, placed temporarily in a bailiff’s custody. When recalled as a witness she still maintained that the charges against her father were false. Several times during the examination the court admonished her to tell the truth, and finally, upon the suggestion of the attorney for the state, placed her in the custody of the sheriff and adjourned the trial until the next day. At the samé time the court expressed the belief that the child was under the influence of others, and threatened to have a prosecution begun against her for perjury and against others for subornation of perjury. The order placing her in the custody of the sheriff and these ■ last suggestions of the court were made after the jury had retired. The following morning she was again placed on the stand and examined very briefly. Aside from two preliminary questions, she was asked only the following question on direct examination:
“Ques. I will ask you if at any time within the last two years, in Colby, Thomas county, Kansas, the defendant, William H. Hamilton, has had sexual intercourse with you? Ans. Yes, sir.”
Upon cross-examination she admitted that she had written a letter to her father, immediately after his arrest containing the following statement:
“Mr. Pratt and Lawyer Taylor came up to our house and frightened me into making a false statement. I did not realize what'I was saying. I was so frightened I did not know what I told them.”
She stated, however, that this letter was written at the dictation of her grandmother, Mrs. James, who is the mother of the' appellant. She was asked by the court why she had not testified to these facts when on the witness-stand the day before, and her answer was that Mrs. James and Mr. James had both said to her that if she told she “would have to go too.”
The sheriff testified to a conversation with appellant soon after the arrest was made, as follows:
“He asked me if I thought he was guilty. I told him everything showed that he was guilty. He said, ‘Well, my God, you don’t think I am, do you?’ ‘Well,’ I says, ‘it looks that way, Billie.’ ‘Well,’ he' says, T am just standing under this to shield somebody else.’ ” The witness further testified that defendant said that when the right time came he would tell something. No further testimony was offered by the state. The defendant offered no testimony except his own, in which he stated he was- not guilty, but rather than see his daughter punished for perjury he was willing to plead guilty.
Error is predicated upon the action of the court in permitting the extended cross-examination of the complaining witness, in ordering her into the custody of the sheriff over night, and in permitting her to testify afterward.
The proceedings were very unusual. The witness was fifteen years of age, intelligent, and had reached the seventh grade in the public schools. She had sworn to the complaint charging her father with this monstrous crime and then denied that there was a syllable of truth in the charge. Here was a situation where the' exception to the tule that a party shall not be per mitted to cross-examine his own witness clearly applied. The extent to which the cross-examination under such circumstances should be permitted can, as a rule, best be left to the sound discretion of the trial court. (The State v. Spidle, 42 Kan. 441, 22 Pac. 620.) That court had every opportunity to observe the manner and appearance of the witness, the surrounding circumstances under which her examinátion in chief was conducted, the evident surprise of the prosecution by her changed attitude as a witness, and was, therefore, better able than this court to judge the extent to which, in furtherance of justice to the public and with due regard for the rights of the appellant, the state should be permitted to cross-examine its own witness.
The remarks and suggestions of the trial court during the examination, and in the presence of the jury, though somewhat irregular, were only the expressions of what must naturally have occurred to the mind of every juror, and we are not able to say, under all the circumstances, that the appellant was prejudiced thereby. If, as the court undoubtedly believed, this child, under the influence of her grandmother and other members of the family, who would naturally desire the truth concealed, had been suborned and cowed under threats into swearing falsely to conceal the disgrace and protect her father from punishment, and the reluctant truth was finally obtained from her, can it be said that the substantial rights of the appellant were thereby prejudiced?
The testimony against the appellant was far from strong. No reason is apparent why the state should have been content with resting its case almost alone upon the unsupported statement of a single witness, or why no attempt was made to prove by that witness some of the circumstances connected with the offense. If the intimations made so frequently by the county attorney when the prosecuting witness was first examined were true, the testimony of the physician and others who it was claimed knew certain facts quite rele vant to the case should have been offered. The trial court, however, observed the manner and appearance of the witnesses, and, with a knowledge of all the circumstances connected with the trial, approved the verdict of the jury; and we should not disturb that verdict except for substantial reasons, which a careful review of the record fails to disclose. (The State v. Hunter, 50 Kan. 302, 306, 32 Pac. 37 ; The State v. Mumford, 70 Kan. 858, 860, 79 Pac. 669.)
We have examined the instructions given and find no error.
Several of the jurors stated on their examination that they had formed or expressed opinions as to the guilt of appellant, but upon rigid inquiry by the court each admitted that the so-called opinion was an impression gained from rumor, and that he could and. would give the appellant a fair trial and be guided solely by the evidence. We see no error in overruling the challenges to these jurors.
At first glance a more difficult question arises in reference to three other jurors who testified on their voir dire that they had been called as jurors in a case in'the district court within a year preceding the term of- court at which the appellant was tried. Section 3795 of the General Statutes of 1901 reads as follows:
“The trustee of each organized township-, and the mayor of any city not included in any corporate limits of any township, shall at his office during the month of April of each year make a list of persons to serve as jurors for the ensuing year, as hereinafter provided.”
Section 3797 reads:
“In. making such selections, each person who shall have served as a juror in any capacity at any term of court during the year next preceding such selection shall, be excluded from the list of jurors for the then ensuing year; and if any such persons shall be selected or drawn, it shall be the duty of the court to which such jurors shall be summoned to strike the names of such persons from the list of jurors; and it shall be good .cause of challenge to any juror that such juror shall have served as a juror in any court of record during the year next preceding such selection; and no juror called or summoned, who shall have so served during such preceding year, shall draw any pay for more than one day during the term of court to which he shall be so summoned; and a list of the persons so selected shall be, immediately after such selection, certified by the officers making such selection to the county clerk of such county.”
The words “during the year next preceding such selection” clearly mean the preceding year, counting back from the time of the making of the list, which was in April, 1904. Appellant’s trial occurred at the June term, 1905. The jurors challenged for this cause stated that they had served as jurors in a certain fire case within the past year, which might have been true and still not render them subject to the Challenge if that trial occurred, as it possibly might, at an adjourned term held after April, 1904. When the ruling complained of was made the court suggested that later the record showing the facts could be looked into, but with the record within easy reach no attempt was made to introduce it. The presumption is in favor of the competency of the juror, and the burden of showing that good cause exists for the challenge rests upon the one who makes the challenge. In the absence of this showing the challenges to these jurors were properly overruled.
It is claimed that the jury were permitted to separate without first being admonished. The record shows that at the noon adjournment the court said to the jury: “Be very careful not to hear anything about the case. Don’t permit any one to talk in your presence about the case. Don’t hear anything about the case whatever.” The court at a previous adjournment had admonished the jury not to talk about the case among themselves, and while the admonition quoted is not in the words of the statute, as is always the better and safer practice, still, in connection with the previous admonition, it was not prejudicial error. At another time, during a slight intermission, the jury were told that they were under the previous admonition of the court, which, under the circumstances, was sufficient. No objection was offered by appellant to the sufficiency of either of these admonitions, nor was the attention of the court called to these alleged errors by the motion for a new trial. The jury may have been during the entire intermission within the court room for all that appears by the record. (The State v. Stackhouse, 24 Kan. 445, 446; The State v. McKinney, 31 Kan. 570, 3 Pac. 356.)
The court sentenced appellant to be confined in the state penitentiary at hard labor for a period to be determined by the “pardoning board” of said penitentiary, instead of the “prison board.” This was an irregularity which, if it were of sufficient importance, might require his being sent back to be resentenced; but it was not raised by the motion for a new trial nor by the motion in arrest of judgment, and would in no event authorize a reversal of the judgment. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
MASON, J.:
This case presents the question of the constitutionality of the section of the statute giving an appeal to the district court from the action of the board of county commissioners in extending the boundaries of a city of the third class. The statute, so far as it bears upon this matter, reads:
“That whenever the city council of any city of the third class desire to enlarge the limits thereof from the territory adjacent thereto, said council shall, in the name of the city, present a petition to the board of commissioners of the county in which said city is situated, setting forth by metes and bounds the territory sought to be so added, and praying that such territory may be added thereto. Upon such petition being presented to said board, with proof that notice as to the time and place said petition shall be so presented has been published for three consecutive weeks in some newspaper published in said city, they shall' proceed to hear testimony as to the advisability of making such addition; and upon such hearing, if they shall be satisfied that the adding of such territory to the city will be to its interests and will cause no manifest injury to the persons owning real estate in the territory sought to be added, they shall make an order declaring said territory a part of the corporate limits thereof and subject to the laws and ordinances pertaining thereto.” (Gen; Stat. 1901, § 1172.)
“Any person feeling himself aggrieved by the order of, such board of county commissioners may appeal from such order to the district court of the county in which said city is located, by filing in the office of the clerk of the district court of said county, within ten days after such order is filed in said clerk’s office, a good and sufficient bond, conditioned for the payment of all costs.” (Gen. Stat. 1901, § 1175.)
Proceedings were instituted in accordance with these provisions for the purpose of adding certain territory to the city of Glen Elder, and an order was made by the commissioners for such change. C. P. Nash and F. P. Nash, property owners affected by it, took an appeal from' the order to the district court. ■ The appeal was dismissed upon the ground that the section of the statute purporting to authorize it is unconstitutional as an attempt to confer legislative power upon a judicial tribunal. A determination that the boundaries of a city shall be enlarged is an exercise of a legislative function which cannot be imposed upon the district court. (See Hutchinson v. Leimbach, 68 Kan. 37, 74 Pac. 598, 63 L. R. A. 630, 104 Am. St. Rep. 384, and cases there cited.) If, therefore, the statute quoted must be interpreted as meaning that the commissioners are to act. upon their own judgment, and have a discretion to grant or refuse the petition, and that the appeal referred to brings the entire matter before the district court in the same aspect in which it was presented to them, leaving it to determine for itself as a matter of legislative policy whether the Change shall be made, the provision with regard to the appeal is unconstitutional and void as an attempt to devolve legislative powers on the court.
Does the act import that the commissioners have an option to say that the change of boundary shall or shall not be made — that the change shall be made, if at all, by their fiat? Literally read, it is mandatory. It declares that if the commissioners find that the change is beneficial for the city and not harmful to individuals they shall make an order to put it in effect. Nevertheless the language seems to suggest the exercise of discretion on their part, and inasmuch as they constitute a body upon which legislative powers may be devolved the statute may be regarded as so far ambiguous in this respect as to justify a resort to external evidence to arrive at its true meaning. An important, and indeed controlling, consideration is derivable from the history of the legislation. In 1885 the legislature passed an act (Laws 1885, ch. 97) relating to the ex tension of the limits of cities of the second class, providing for a petition’s being presented by the council to the district judge, and for the making of an order by him declaring such change, if satisfied of the existence of certain conditions. In 1886 this act was' amended, evidently with the idea that in the original form the power confided to the district judge was legislative. The amended act (Gen. Stat. 1901, §§ 1052-1055) changed the phraseology by requiring the judge to make findings as to the conditions, and in terms left it to the council finally to declare, if the.findings were favorable, that the change should be made. At the same session the statute now under examination was passed, being substantially an exact copy of the original act of 1885, except that it related to cities of the third class and substituted the county commissioners for the district judge.
It is but reasonable to suppose that the legislature which saw fit to change the form of the second-class-city act so as to make it plain that the judge to whom was presented a petition for an extension of the corporate limits acted only judicially, and at the same time adopted the discarded language to define the duties of the county commissioners in the case of cities of the third class, had in mind the different capacities of the judge and the commissioners with respect to the possibility of devolving legislative functions upon them, and intended that effect should be given to the different wording of the two statutes then enacted. If it had been the purpose that the commissioners, like the judge, should only find upon the facts, it must be presumed that under the circumstances stated such intention would have been so clearly expressed as to have been free from doubt. We conclude that the commissioners do exercise a legislative power in determining that a change of corporate boundaries shall be made.
It remains to consider the effect of the appeal. The argument is made that the use of the word “appeal” necessarily implies the setting aside of what has been done by the board and the hearing of the matter by the court de novo. The word as a legal term is often, perhaps generally, used in that sense. That may be said to be its technical significance. But in ordinary parlance it has no absolutely fixed and definite meaning, and when employed in a statute it may be construed by the same rules as any other phrase. (I Words & Phrases Jud. Def. 442, 447.)
“The term ‘appeal,’ as used in the constitution, is a general term denoting not' only what are technically denominated appeals, as contradistinguished from a certiorari writ of error or petition in error, but any proceeding by which a cause is sought to be removed from probate and justice courts to superior tribunals for the purpose of reexamination.” (Crane v. Giles, 3 Kan. 54, 55.)
“The term ‘appeal’ is, in the several states, used in very different senses, and has to a great extent, in statutes and decisions, lost its distinctive meaning, having become a generic term for all forms of rehearing, or else nearly or quite synonymous with ‘error’ or ‘new trial.’ ” (Western Cornice & Mfg. Works v. Leavenworth, 52 Neb. 418, 422, 72 N. W. 592.)
“ ‘Appeals’ in reference to actions at law, although expressed by a term originally derived from the civil law, are purely creatures of our statute law, and consequently . . . our various statutes must be construed together in order to determine correctly the import of the term in any given statute. ... It has then no uniform import as to the mode of trial in our system, whatever may have been its technical import in the civil law, from whence it is derived.” (Carnall v. Crawford County, 11 Ark. 604, 622.)
An illustration of the use of the term in our statutes in an untechnical sense is to be found in the divorce law (Gen. Stat. 1901, §5140), where it is employed with obvious reference to a proceeding, in error.
The present statute is silent concerning the effect of the appeal it provides, both ‘with regard to the procedure to be followed and the result to be reached. Much is obviously left to interpretation. The county board in the exercise of its original jurisdiction has at least two questions to determine when a proper petition is presented: (1) Whether the proposed change can be made without manifest injury to the persons owning real estate in the territory sought to be added; (2) if so, whether the annexation shall be ordered. The first determination is judicial; the second legislative. The first may be made reviewable by a court, although the second cannot. We are not to impute to the legislature an intention to disregard the constitution by attempting to give an appeal from a legislative order to a judicial tribunal, if such imputation can be avoided. There is abundant field for the operation of the statute without trenching upon the legislative power of the board. The appeal provided may be deemed as intended to refer to the only part of the action of the board to which it can be made applicable —the judicial part — the determining that no injury would result to landowners by the proposed change. Inasmuch as there is room for the statute to operate without infringing upon the constitution, it will not be held void merely because a literal rendering of its terms might seem to give it a broader operation which would result in such infringement. A similar principle was involved in Fulkerson v. Comm’rs of Harper Co., 31 Kan. 125, 1 Pac. 261, where it was held that, although the statute (Gen. Stat. 1901, § 1640) purports to give an appeal to the district court from “any decision” of the county commissioners, the phrase cannot be interpreted as including a determination reached in the exercise of the board’s legislative power.
The appeal taken in the case should not have been dismissed, for it was effective at all events to bring before the district court for review the question whether the change ordered by the board would cause manifest injury to the appellants, and to empower the court, if it should find that to be the case, to set aside the order attaching territory to the city as having been made without authority.
The judgment is reversed and the cause remanded for further proceedings.
All the Justices concurring. | [
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■ The opinion of the court was delivered by
Johnston, C. J.:
This is a proceeding to punish W. W. Rose for contempt of the supreme court in violating its judgment recently rendered against him. It appears that at the general city election in April, 1905, Rose was elected mayor of Kansas City, Kan., for the term of two years ending April 12, 1907. On September 26, 1906, the attorney-general brought an action of quo warranto in the name of the state to remove Rose from office, alleging that since his incumbency of the office he had purposely violated the law by licensing and protecting those who were violating the prohib itory liquor law; that he had collectéd money from the lawbreakers for such licenses and protection, and, although there had been from one hundred and twenty-five to one hundred and fifty persons openly engaged in the illicit business,, each pacing fifty dollars per month to the city for permission'to carry on the illegal traffic, with the knowledge and connivance of Rose, he had failed to notify the county attorney of such violations or to take any of the steps prescribed by the statute for the enforcement of the law. The defendant' denied the averments of the petition, and upon the issues formed testimony was taken in behalf of both parties. Afterward — on April 3, 1906 — Rose tendered his resignation to the city council, which was at once accepted. When the case was called for trial, on April 6, 1906, the defendant, who was present in court, asked and obtained leave to withdraw his answer, and in effect consented that a judgment of ouster might be entered against him, as prayed for in the petition. The judgment, after finding the election to, and forfeiture of, the office, proceeds:
“Wherefore, it is by the court considered, ordered' and adjudged that the said defendant be, and he hereby is, ousted from said office, and that he do not in anywise hereafter intermeddle with nor in the said office of mayor from henceforth, nor in the liberties, privileges, franchises and emoluments thereof, and that he be henceforth for and during the remainder of said term of two years wholly excluded and forejúdged from exercising and using the same and every of them, and be wholly excluded and ousted from and disqualified from hplding said office, and from concerning himself in anywise in and about the holding of or exercising the said office of mayor of Kansas City, Kan., and from exercising the powers and receiving the emoluments thereof, for and during the term for which he was elected as aforesaid.
“It is further ordered and adjudged that said defendant pay the costs of this action, taxed at $-.
“Of which said judgment and order of the court let execution issue.”
Shortly after the judgment of ouster was rendered a special election was called to fill the vacancy in the office of mayor of Kansas City, Kan. The defendant, in "defiance of the judgment, became a candidate for the' office, received a majority of the votes cast at the election on May 8, 1906, at once qualified and took possession of the office, and is now assuming to exercise the powers of mayor and is appropriating the emoluments of the office. Upon the complaint of the attorney-general Rose was cited before the court to show cause why he should not be punished for contempt, and later a formal accusation was filed, setting out the proceedings in quo warranto, the judgment of ouster, and the disregard of the judgment.
In his answer Rose substantially admitted the facts stated, but averred that he was holding the office and exercising its functions solely by virtue of the election held in May, 1906, and that the only title claimed by him was that derived from the new election and commission. He alleged that in the quo warranto proceeding there was nothing in issue but the title to the office dependent on the votes cast in April, 1905, and that no other right was considered or adjudged. He further averred that the court lackéd power to exclude him from the office, for the reason that before the judgment was rendered he had voluntarily resigned and surrendered the office; that, in any event, the court had no power to render a judgment precluding him from taking and holding the office under and by virtue of the new election; and that to enforce such a judgment would be to deprive him of his office and of liberty without due process of law, in violation of the fourteenth amendment to the constitution of the United States, the protection of which he specifically claimed. He also alleged that in taking and holding the office under the new election he had acted in good faith, under the advice of counsel, without intention to embarrass the administration of justice or to show disrespect to the court. The matter of contempt was finally submitted to the court on the statements and admissions made in the pleadings.
It thus appears that Rose was originally elected mayor for the term of two years ending April 12, 1907; that for official misconduct he was, in April, 1906, removed from the office by a judgment which in terms wholly ousted and excluded him from the office and adjudged that he do not intrude into it during the term for which he was originally elected. In open disregard of this judgment he is now in possession of the office, and is assuming to exercise its functions and powers. The judgment is not ambiguous, and, if it is valid, the defendant is unquestionably in contempt of the court which rendered it.
Some of his attacks on the judgment would have been entitled to more consideration if they had been made before it was finally rendered. This proceeding cannot be regarded as one to correct irregularities or errors. The judgment was rendered in a quo warranto proceeding wherein the court had unquestioned jurisdiction, and unless it is absolutely void it is not open to attack. It is first assailed on the ground that the court was without power to oust the defendant in a quo warranto proceeding, because other and adequate remedies existed for getting rid of unfaithful mayors. If this kind of an objection were available after judgment, it would not aid the defendant. He calls attention to the statutes making official misconduct a crime, one of the penalties of which is the forfeiture of the office, and also to the case of The State, ex rel, v. Wilson, 30 Kan. 661, 2 Pac. 828, which held that an officer could not be removed until he had been adjudged guilty of a criminal offense defined by a certain statute. That decision was based upon a statute which provided that forfeiture of office constituted a part of the penalty of the offense prescribed, and that it did not occur until a conviction was had. In that case the court recognized that the legislature had the power to provide for á forfeiture for misconduct, independent of any criminal prosecution, but held that it had not done so in the statute then under consideration. The statute under which the present action was brought authorizes not only criminal proceedings but expressly provides for the removal of the offending officer by a civil action. (Gen. Stat. 1901, § 2462.) This remedy, it will be observed, is not incidental to the criminal proceeding, but is an additional and independent one. (The State, ex rel., v. Foster, 32 Kan. 14, 3 Pac. 534.) The violations of the law by the officer are not only public offenses, but in committing them he forfeits his right to the office, and this forfeiture may be judicially declared in a quo warranto proceeding.
The judgment cannot be deemed to be invalid because of the resignation of Rose just before its rendition. The issues were joined, testimony had been taken, and the case was ripe for trial before the resignation, and the defendant could not then, by surrendering the office, devest the court of jurisdiction nor thwart the purposes of the proceeding. The public had an interest in the action, and the judgment to be rendered was of no less consequence to it than to the individual interests of the defendant. The judgment of ouster, as Mr. High has said, “is not at all dependent upon whether the respondent does or does not claim a right to exercise the office or franchise in controversy; the question being whether he has done any act which necessarily implies a claim to its exercise. And if such act can be shown, judgment of ouster will be given, notwithstanding the usurpation has ceased before the trial. So when a statute gives the prevailing party in proceedings upon a quo warranto information the right to costs absolutely, the court will give judgment of ouster, notwithstanding the information is entirely fruitless, the term of office having long since expired.” (High, Extra. Leg. Rem., 3d ed., § 754.) In The State, etc., v. McDaniel et al., 22 Ohio St. 354, 368, the supreme court of Ohio held that resignation did not constitute a defense to an information in quo warranto, and that it was not within the power of the defendant in cases of this character to render the proceedings ineffectual by successive resignations. (See, also, Attorney-general, ex rel. Robinson, v. Johnson, 63 N. H. 622, 7 Atl. 381; Hunter v. Chandler, 45 Mo. 452, 455; The King v. Warlow, 2 M. & S. [Eng. K. B.] 75.)
There remains the question, and in fact the only substantial question in the case, whether there was power in the court to render an effectual judgment ousting the defendant from the office for the remainder of the term to which he had been chosen. By the terms of the judgment he was not only ousted for the moment but for the entire term. While the judgment expressly - deprives the defendant of any right for the balance of the term to the' office forfeited for his misconduct, it is not certain that it is any more effective than would have been a general judgment of ouster. If the unlawful acts pleaded and proved' operated to forfeit the office for the term to which Rose was elected, a judgment in general terms declaring a forfeiture would probably take from him all that he had forfeited. What was involved in the proceeding, and of what was the defendant deprived by the ouster? It was the office of mayor, with its rights and privileges. The office is a trust conferred by public authority, for a public purpose, and for a definite time. Mr. Justice Swayne said: “An office is a public station, or employment, conferred by the appointment of the government. The term embraces the ideas- of tenure, duration, emolument, and duties.” (United States v. Hartwell, 73 U. S. 385, 393, 18 L. Ed. 830.) In the case of In the Matter of Oaths to be taken by Attorneys and Counselors, 20 Johns. (N. Y.) 491, an “office” was defined to be “an employment on behalf of the government, in any station or public trust, not merely transient, occasional or incidental.” (Page 493.) In defining “public office” the court of appeals of New York said: “It means a right to exercise generally, and in all proper cases, the functions of a 'public trust or employment, . . . and to hold the place and perform the duty for the term and by the tenure prescribed by law.” (Matter of Hathaway, 71 N. Y. 238, 244.)
The office of mayor, which was conferred on the defendant at the general city election of 1905, was not a transient or occasional trust. The office, with its rights and privileges, was given to him for a fixed time. It was a two-year trust; an entire thing. It has been said that, “in legal idea, an office is an entity, and may exist in fact, though it be without an incumbent.” (People v. Stratton, 28 Cal. 382, 388.) The same court later said that in legal contemplation “each term of an office is an entity separate and distinct from all other terms of the same office.” (Thurston v. Clark, 107 Cal. 285, 288, 40 Pac. 435. See, also, Wardlaw v. Mayor, etc., of City of Neto York, 19 N. Y. Supp. 6, 7; State of Iowa v. Welsh, 109 Iowa, 19, 79 N. W. 369.)
The right to exercise the functions of the office of mayor and to enjoy its privileges for the two-year term was an entity conferred on the defendant, and it was that which was taken from him in the quo warranto proceeding. The resignation or the removal of an officer during his term and the election or appointment of a successor do not divide the term nor create a new and distinct one. In such a case the successor is filling out his predecessor’s term; and when the defendant reentered the office and undertook to exercise its duties he was simply serving a portion of the very term which the court had decided that he was unfit to hold. Since under the law he forfeited and was ousted from the right to occupy the office for the remainder of the term, no subsequent election or appointment could restore to him that which he was adjudged to have forfeited. and lost. The electors of the city are as much bound by the law and the judgment rendered in pursuance of the law as their representatives and officers, and the special election did not warrant the defendant in ignoring or violating the judgment rendered under the law.
In State of Iowa v. Welsh, 109 Iowa, 19, 79 N. W. 369, the supreme court of Iowa went so far as to hold that an officer might be removed during the term for which he had been reelected for official misconduct or neglect 'of duty during his previous term. After remarking that the object of the proceeding of removal from office is to rid the community of a corrupt, incapable or unworthy official, it was said:
“The commission of any of the prohibited acts the day before quite as particularly stamps him as an improper person to be entrusted with the performance of the duties of the particular office as though done the day after. The fact of guilt with respect to that office, warrants the conclusion that he may no longer with safety be trusted in discharging his duties.” (Page 23.)
It is not nepessary to go to that extent in this case, but certainly the misconduct of which the defendant was found guilty stamps him as one not entitled to be entrusted with the duties of the particular office forfeited during the remainder of the term. The case of State v. Jersey City, 25 N. J. Law, 536, appears to hold a contrary view; but a case more nearly in point, and which is in accord with our judgment, is State, ex rel., v. Dart, 57 Minn. 261, 59 N. W. 190. There a county treasurer was removed in a proper proceeding for the misappropriation of public funds. Afterward the board of county commissioners, which had authority to fill the vacancy, elected him to fill out the term. The question arose whether there was power in the board to reinvest him with the office in that manner. In deciding that there was not the supreme court of Minnesota said:
“The removal proceedings cannot be nullified or reversed in that manner. Such removal proceedings are not merely for the purpose of ousting the person holding the office; they include a charge that he has forfeited his qualification for the office for the remainder of the term. They are brought to declare a forfeiture of a civil right, his eligibility, his qualification to hold that office for the rest of that term. The proceeding is not brought for his removal from a day or a week or a month of his term, but from the whole of the remainder of his term. . . . Nothing less is involved in the proceedings. Whether the voters at the polls could condone the offense by which he forfeited his office it is not necessary here to decide. We are of the opinion that the county commissioners could not do so.” (Page 263.)
At the argument the question was mooted whether a county attorney who had been removed from office could be reappointed during the term. The statute authorizing removal would serve little purpose if the district judge could appoint the unfaithful officer for the term forfeited and thus again invest him with the office and the opportunity to continue the violations of duty and of the law. Suppose a county clerk who was engaged in peculation with the connivance of the board of county commissioners was removed from office: the board, which has the power to fill the vacancy, might be willing to give the defaulter a new lease of power to continue his frauds against the public until the end of the term, but to allow it to be done would be trifling with justice. No such purpose can reasonably be imputed to the legislature.
Counsel for the defendant were inclined to concede that an officer removed for dereliction of duty could not be reappointed to fill the vacancy, but contended that a different rule obtains where provision is made for filling the vacancy by election. No room is seen for a distinction between an appointment and an election. The protection of the public is involved in the proceeding and judgment. Nothing in the statute suggests that electors, even, can condone the misfeasance, revive the forfeited right, or limit the effect or enforcement of a judgment of ouster.
It is said that this proceeding involves the title to an office, which can' only be questioned in a direct proceeding, and that a contempt proceeding cannot be transformed into a quo warranto action. The determination of the title to the office is not directly drawn in question in this proceeding. The real inquiry is, Has the defendant violated the judgment rendered? That involves the scope and effect of the judgment and whether the defendant has intruded into the office and is doing that which the judgment forbids. The right to the office is only incidental to the main question: whether he is acting in disobedience and contempt of the judgment of the court. It is conceivable that a person removed from office might, for some purposes, be. regarded as a de facto officer and yet be in contempt of a court which prohibited him from occupying the office. An ousted officer might again and again, in some illegal way, gain possession of the office and such recognition in it as would give validity to his acts, but it would hardly be contended that the only way by which the state could meet such contumacy and enforce the court’s judgment would be to. bring repeated quo warranto proceedings.
The contention that to deprive the defendant of the right to hold the office for the remainder of the term is to take away a right from him without due process of law is not well founded. He is only made to suffer the penalty imposed for misconduct in office and violation of law. The office is created by statute. The grounds of forfeiture are prescribed by statute, and the statute provides the method by which the forfeiture is declared. The defendant has no vested right to the office, and especially none which may not be forfeited and lost by misfeasance. Having violated the statute, he must suffer the penalty which the statute prescribes. Having disobeyed and violated the judgment lawfully rendered and still in force, he is in contempt of this court, and is therefore adjudged to pay a fine of $1000 and the costs of this proceeding; and, if the- fine and costs be not paid within twenty days, he shall be committed to the jail of Shawnee county until they are paid.
All the Justices concurring. | [
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Per Curiam:
Joseph Swartley died intestate on March 26, 1892, leaving a much-involved estate, situated in Kansas and Pennsylvania. His brother, John M. Swartley, was appointed administrator in both states. In due time final settlement was made and administration closed in both jurisdictions and the administrator discharged. The estate was indebted to the administrator in a large amount at that time, both on account of claims of his own and of others he had paid. A part of the estate in Kansas consisted of land. Anna Mary Detweiler, plaintiff in the court below and plaintiff in error here, William R. Swartley and John R. Swartley, the heirs of Joseph Swartley, entered into an agreement with their uncle, the administrator, before the probate proceedings in Kansas ended, whereby they deeded to him the Kansas land for what was due him and released him from any liability for any distributive share of their father’s estate, he to own, use and occupy the land, sell it as his own, and, after accounting for rents and profits and deducting the indebtedness of Joseph Swartley’s estate to him, with interest, to divide the remainder of the proceeds of sale, if any¡ between them.
A deed, a release and a collateral contract were prepared and executed to evidence the arrangement just outlined. John M. Swartley entered into possession of the land, and after occupying it for some time died, when it passed into the possession of his heirs, John Swartley and William M. Swartley.
The plaintiff sued for a share of the land. The defendants answered setting up the arrangement referred to. The deed had recited a consideration of $13,323.39. The collateral contract stated the indebtedness of the Joseph Swartley estate to John M. Swartley as $4850.83. The answer claimed a mistake in the preparation of this instrument, and asked that it be reformed to show the sum stated in the deed. The reply denied mistake, charged a failure on the part of the administrator to keep correct accounts and otherwise attacked the integrity of the probate court proceeding; and pleaded laches and ratification as against reformation. The court found generally for the heirs of John M. Swartley, found specially all the material facts in their favor, and made corresponding conclusions of law.
The assignments of error present only questions of fact and mixed questions of law and fact. There is no substantial disagreement between counsel for the respective parties concerning the law of the case. Rules which none of them will dispute solve the controversy when once the facts are settled. What the facts are is much disputed.
Nothing is gained to the parties or to the profession by publishing an argument upon evidence showing the court’s view of this and that item, marshaling .the testimony in favor of, and that against, the various disputed propositions, and otherwise exhibiting the process by which a conclusion is reached. It' is sufficient to say that the findings of the district court are sustained by testimony of the kind and quantity which the law requires in cases of this character.
That a mistake was made, mutual to the parties interested, there can be no doubt; and that $13,323.39 was the sum intended to be inserted in the collateral agreement is proved by the deed, the probate record and the testimony of all the witnesses except the plaintiff, whose sole contribution to the case is a negative answer to two equivocal questions. It follows that the impeachment of the probate record is inconsequential. The probate court fixed 'the amount of John M. Swartley’s claim. Plaintiff could have appealed from the final settlement of her father’s estate if it was not correct. She need not have agreed to $13,323.39 as the amount of her uncle’s claim if that sum was too large. Having agreed, the district court had nothing to do but to enforce the contract. It could not make another for the parties.
* There appears in the record good reason for the arrangement. John R. Swartley testified he knew very well his father’s estate was insolvent and he was very glad his uncle took the land for the debt. William R. Swartley testified that he understood what he was doing, that his father’s estate owed his uncle over $13,000, and that the amount stated in the deed was correct. Another witness, the wife of William R. Swartley, who was present when the arrangement was entered into and when the papers were signed, and who knew of enormous, sums of money forwarded to Joseph Swartley, said the deed contained the correct sum. Plaintiff does not pretend to say she understood the transaction to rest upon a basis different from that shown to be the true one by all other evidence in the case. So, whatever a strict overhauling of the account might now show to have been legally due, the written contract must stand.
Why the mistake occurred nobody knows. It was made in filling a blank in an otherwise complete instrument. The lawyer who made it had no authority to conclude any other kind of an agreement than that which expressed the intention of the parties, and he could not bind John M. Swartley or. any one else by inserting in the contract an amount different from that shown by the deed unless Swartley knew of it and acquiesced. Knowledge of what had occurred did not Teach John M. Swartley within his lifetime, nor the defendants until after suit was commenced. Without this there could be neither laches nor ratification. Nor do the facts create an estoppel against reformation. The situation of the plaintiff is no different from what it woqld have been had the instrument as signed been correct.
The relation of the heirs of Joseph Swartley to the holders of the title to the land was one of express trust, and, under the well-known rule, the statute of limitations does not apply to the enforcement of the sums specified in the trust agreement against the land.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The only negligence of which the jury found the company guilty was the failure to have a lookout on the, rear of the train to warn persons of its*"“ approach. It is urged that the findings and evidence conclusively establish that this negligence could not have been the proximate cause of the accident because it appears that the boy saw the cars approaching all the time and had sufficient warning. However, conceding that the railway company was negligent, the findings of fact clearly establish that plaintiff’s contribu- ^ tory negligence was such that he cannot recover.
■ Some of the findings of the jury are in a sense contradictory. In the first answer they find that plaintiff did exercise such reasonable care and prudence as might be expected from one of his years, knowledge and experience, and under all the circumstances. This finding, however, is in the nature of a general conclusion; it must give way to the force and effect of'certain special facts found — facts in detail — which cannot be said to be arbitrary conclusions, for they are compelled by, and rest upon, evidence about which there is no conflict. (A. T. & S. F. Rld. Co. v. Plunkett, Adm’r, 25 Kan. 188,197.) They force a conclusion from which, in our opinion, there is no escape.
The boy possessed the ordinary intelligence of one of his age, knowledge and experience. He was past thirteen years of age and for five weeks had been about and across these tracks daily. He attempted to run around in front of a moving train of cars which he saw approaching and about to cross his path unless it*' stopped, as he says he thought it was going to do. The train was moving five or six miles an hour. One of the reasons he gives that caused him to think the train would stop was that he saw it awhile before moving j/ eastward and stopping at a point west of there.
The jury found, as indeed they were bound to find from his evidence, that he understood he was liable to injury unless he avoided being struck by the train; that he noticed the cars when they were ten feet away from him but did not stop. The finding that he did not realize there was any danger is likewise a conclusion which must be controlled by the previous findings to the effect that he saw the train approaching but did not stop; that he did understand his liability to injury; and that he possessed the ordinary intelligence of one of his years, knowledge and experience. In A. T. & S. F. Rld. Co. v. Plunkett, Adm’r, 25 Kan. 188, it was said:
“The jury’s findings are always conclusions. They cannot be otherwise; and the jury cannot in any case, or in any sense, find ultimate facts. They can find the facts in great detail, or they can find them in very general or comprehensive terms. And where they find the facts both in detail and in general terms, we may disregard the general findings. If the findings in detail contradict the general findings, we may order the judgment to be rendered in accordance with the findings in detail, and wholly ignore the general findings. For instance: Where a question of negligence arises in a case, the jury cannot be allowed to say conclusively, after finding certain special facts, that these facts constitute negligence, when in fact and manifestly they do not constitute negligence.” (Page 197.)
To the same effect see C. B. U. P. Rld. Co. v. Henigh, Adm’r, 23 Kan. 347, 359, 33 Am. Rep. 167; A. T. & S. F. Rld. Co. v. Brown, 2 Kan. App. 604, 42 Pac. 588; 2 Am. & Eng. Rld. Cas., n. s., 113; A. T. & S. F. Rld. Co. v. Plaskett, 47 Kan. 112, 115, 27 Pac. 824.
The finding in this case that under the circumstances the boy exercised such reasonable care and prudence as might be expected from one of his years, knowledge and experience is necessarily a general conclusion from the special facts found, and is contradicted by the findings in detail. From these it stands out clear that it would have required the exercise of only a slight degree of care on the part of this boy to have protected him from injury, and that in the face of danger which he sufficiently appreciated he culpably neglected to use the knowledge and capacity which he-possessed.
“Although a minor, he was bound to use the reason he possessed and to exercise the degree of care of which he was capable.” (Wilson v. Railway Co., 66 Kan. 183, 186, 71 Pac. 282. See, also, A. T. & S. F. Rld. Co. v. Todd, 54 Kan. 551, 38 Pac. 804; Bess v. Railway Co., 62 Kan. 299, 62 Pac. 996; Mendenhall v. Railway Co., 66 Kan. 438, 71 Pac. 846, 61 L. R. A. 120, 97 Am. St. Rep. 380.)
It follows, therefore, that the motion for judgment in favor of defendant upon the special findings should have been sustained.
The judgment is reversed, with directions to enter judgment for defendant.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
This is a proceeding to reverse an order of the district court of Reno county-refusing to grant an injunction restraining the mayor and council of the city of Hutchinson from issuing $20,000 of the city’s bonds to the Hutchinson Interurban Railway Company. The material allegations of the petition are that the plaintiff is a large real-estate owner and taxpayer in the city of Hutchinson; that the city of Hutchinson is a city of the second class; that the other defendant is a railway corporation organized and existing under and by virtue of the laws of the state of Kansas, with its principal place of business in the city of Hutchinson; and that a petition signed by more than two-fifths of the resident taxpayers of the city of Hutchinson was presented to the mayor and council of such city January 18, 1906, requesting the mayor and council to submit, at a special election, to the qualified voters of the city a proposition to extend aid to the amount of $20,000 to railway corporation, to be used in the purchase of its right of way, depot grounds, and terminal facilities, and to issue bonds of the city therefor.
An election was called, at which a majority of those voting voted in favor of extending the aid and issuing the bonds. The plaintiff applied to the district court of Reno county for an injunction restraining the mayor and council from issuing such bonds, which was denied, and it prosecutes this proceeding.
Plaintiff contends that the petition presented to the mayor and council asking the city to vote aid and issue the bonds to the railway corporation did not bring the petitioner within the statute authorizing cities of the first or second class to aid in the construction of railroads or to extend aid in purchasing a right of way, depot grounds or terminal facilities. The petition reads:
' “The conditions upon which said bonds shall be voted and issued are: That the Hutchinson Interurban Rail way Company shall construct and build a line of railroad, standard gauge, propelled by electric current or other mechanical power, including all necessary sidetracks and switches, preparatory, to running the cars thereon from a point on Seventeenth street in said city and over Main street, Fourth avenue and Avenue A to the distance now occupied by the Hutchinson Street-railway Company. Said bonds to be delivered to the Hutchinson Interurban Railway Company as soon as the track is laid upon said streets, provided said track is laid and cars running thereon on or before the 1st day of September, 1906, delays by litigation and unavoidable casualties excepted.”
The objection to this.petition is that it describes the railroad for which aid was requested as a line wholly within the city. It may also be mentioned that the ordinance calling the election and making it obligatory on the mayor and council to issue the bonds when the railroad company should comply with the conditions expressed in the petition followed the exact language of the petition in this respect.
The aid was attempted to be secured under the provisions of the act of February 26, 1886, being sections '5907 to 5912 of the General Statutes of 1901. The grant of authority to cities of the first or second class to aid railroad companies in securing and paying for land for a right of way, depot grounds and terminal facilities is found in section 5907, which provides:
“When a petition in writing, signed by at least two-fifths of the resident taxpayers of any incorporated city of the first or second class, shall be presented to the mayor and council of such city, asking that a vote be taken and an election held upon the question of aiding any railroad company constructing or proposing to construct its line of railroad into or through said city, in , securing and paying for land for right of way, depot grounds, and terminal facilities, the mayor and council' of such city shall cause an election to be held to determine whether such city shall aid such railroad company in securing and paying for lands for right of way, depot grounds and terminal facilities.”
It will be observed that such cities are only authorized to grant aid for such purposes to railroad companies that propose to construct a line of railroad into or through such city. The line must come into the city and may pass through it, or, as stated in the proviso in section 5911, “no such bonds shall be issued until the railroad to which it is proposed to extend aid for the purposes hereinbefore indicated shall be completed and in operation through the city voting in favor of such aid, and the issuance of such bonds, or to such point in such city as may be specified in the proposition set forth in the petition required by this act.”
The preposition “into” indicates entrance — passing from the outside to the inside — a penetrating, and was used in this statute in its ordinary and generally accepted meaning, implying that the line of railroad to which a city can extend aid must be a line entering into the city, and must of necessity therefore come from the outside, and must either pass through the city or to such point in the city as may be specified in the proposition set forth in the petition. The railroad proposed in the petition to be built not being a line entering the city or passing through it, but one whose beginning and termination were wholly within the corporate limits of such city, is not such a line of railroad as the statute authorizes a city to aid. Statutes authorizing municipalities to extend aid to public utilities are to be strictly construed, and a full and exact compliance with their provisions must be shown or the bonds should not be allowed to issue. (Lewis v. Comm’rs of Bourbon County, 12 Kan. 186; Cowdrey v. City of Caneadea, 16 Fed. 532.) Authority cannot be found in the statute authorizing a city of the second class to vote aid and issue bonds to aid a railroad corporation to purchase lands for a right of way, depot grounds or terminal facilities whose entire line is within the limits of the city. The petition presented to the mayor and council in this instance confined the entire line of rail road to be built within the city limits. The bonds are therefore void.
It is argued by the defendants that plaintiif cannot maintain this suit because in the very nature of things a judgment in its favor would relieve all the taxpayers of the city from the burden which would be imposed upon them if the bonds were issued, wherefore the plaintiif puts itself in the attitude of bringing a suit for the benefit of the public. Section 1 of chapter 334 of the Laws of 1905, amendatory of section 253 of the code of civil procedure (Gen. Stat. 1901, § 4700), reads as follows:
“An injunction may be granted to enjoin the illegal levy of any tax, charge, or assessment, or the collection of any illegal tax, charge, or assessment, or any proceeding to enforce the same, or to enjoin any public officer, board or body from entering into any contract or doing any act not authorized by law that may result in the creation of any public burden or the levy of any illegal tax, charge or assessment.”
The difference between the act amended and the amendment is that the latter gives to the person seeking relief a right of action earlier in the tax proceedings, and also gives to such person a right to have an injunction against any public officer, board or body-to restrain them from entering into contracts which would result in imposing upon his property an illegal tax. The plaintiff might have waited until an attempt was made to sell its property for the non-payment of the taxes levied to pay this bonded indebtedness, but it was not compelled to do so. The statute gives the right of action at the inception of any attempt to create such illegal burden. The plaintiff is not suing on behalf of the public or in the public’s interest, but in its own name, for the protection of its own property. A judgment in its favor may result in relieving all the property in the city from paying taxes to liquidate the indebtedness which the city is trying to create, but that would be only an incident in the protection of its own property and not a reason why it should not be permitted to maintain an action at this time.
For the reasons herein suggested the order of the court below is reversed and the cause remanded, with directions that the demurrer be overruled and the temporary injunction allowed, and that the order heretofore issued by this court remain in force until the mandate in this case is acted upon.
Johnston, C. J., Burch, Mason, Porter, Graves, JJ., concurring. | [
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Per Curiam:
The controversies involved in this case all seem ultimately to be involved in the findings of the jury as to the facts. The court instructed the jury that before the plaintiff could recover he must prove by a preponderance of evidence that defendant’s train set out the fire; that if the fire was started before the train arrived where the fire first occurred the defendant was not responsible, but if the fire started immediately after the train passed the jury might infer that the train set the fire; that if the jury found that the train set the fire it was prima facie evidence of negligence in the management of the train, but that this presumption of negligence might be overcome and disproved if the evidence showed that the locomotive was at the time provided with proper appliances to prevent the escape of fire, that these appliances were in good repair, and that the locomotive was carefully and efficiently handled; -that it was for the jury to determine whether there was negligence on the part of the defendant either in using defective appliances or in the manage ment of the locomotive; and that, if there was no negligence, there could be no recovery against the defendant. In short, the court seems to have correctly instructed the jury upon every question of law involved, and to have covered every request for instruction asked by the defendant, so far as it was a correct statement of the law.
If the evidence of the witnesses for the defendant be given full credence, it makes a very strong showing that the locomotive had the best appliances to prevent the escape of fire which it is practicable to use and that the locomotive was handled with the utmost care. Given full credit, their evidence shows that the fire was burning before the locomotive arrived at the point where the fire started, and that the appliances and management of the locomotive were such as to render the escape of fire from it next to impossible. None of these witnesses was impeached, nor was any of their evidence directly contradicted, unless it was as to the time of the starting of the fire. The evidence of plaintiff’s witnesses tended to show that the fire started, not before, but after, the locomotive passed the point of its starting. The jury believed from the evidence that the locomotive started the fire, and so found, and hence could not well have given full credence to the accuracy of the evidence relating to the perfection of the appliances and the management of the locomotive.
Were it the province of this court to weigh the evidence we might come to a different conclusion than did the jury, but it is not. We cannot say that the verdict and judgment are not supported by evidence.
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Per Curiam:
The city of Kansas City undertook to pave one of its streets and. to assess the cost upon the property specially benefited. The defendants in error enjoined the assessments against their property, the original petition for the improvement having lacked the required number of signatures. The legislature then passed the general curative act embodied in section 129 of chapter 122, Laws of 1903, which reads as follows:
“In case the mayor and council of any city shall have heretofore levied or shall hereafter levy any special assessment for any public improvement in said city, which special assessments are or may be informal, illegal, irregular, or void for the want of sufficient authority to make or levy the same, or for any cause whatsoever, the mayor and council of such city may at any time relevy any such special assessments in the manner provided, and against the property liable for assessment for such improvement at the time of the making thereof; provided, that in all cases where informal, illegal, irregular or void special assessments levied for any improvement against any lot or piece of land shall have been paid, in whole or in part, such lot or piece of land shall not be reassessed for the assessment of the part thereof so paid.”
Afterward the city, by ordinance, relevied the special assessments upon the property liable therefor, and was again enjoined. To review the second judgment this proceeding in error was commenced.
The statute was intended to cure proceedings void for want of a sufficient petition — that is, void for want of jurisdiction, as in this case. A petition might have been dispensed with by the legislature in the first instance, and hence the curative statute was within the constitutional power of the legislature to enact. The act is of course to be construed as applicable to defects within the power of the legislature to remedy, and the defendants in error can complain of no invalidity in the law which does not affect them. The extent of the restrictions to be placed upon the taxing powers of cities is a legislative and not a judicial question.
The curative act by express terms authorizes a re-levy, and not a doing over of the whole process, including a reappraisement, reassessment, etc. The method provided for relevy is by ordinance, as in other cases, and the property liable is the property benefited when the improvement was made. The argument that there was‘no law for doing what the city did is answered by the statute-book. The relevy having been made under the new statute, the former judgment creates no estoppel.
No new question of law is presented. The principles involved are fully covered by former decisions of this court. (Hines and others v. The City of Leavenworth and others, 3 Kan. 186; City of Emporia v. Norton, 13 Kan. 569; City of Emporia v. Norton, 16 Kan. 236; City of Emporia v. Bates, 16 Kan. 495; City of Newton v. Atchison, 31 Kan. 151, 1 Pac. 288, 47 Am. Rep. 486; Mason v. Spencer, County Clerk, 35 Kan. 512, 11 Pac. 402; Newman v. City of Emporia, 41 Kan. 583, 21 Pac. 593; Manley v. Emlen, 46 Kan. 655, 27 Pac. 844; City of Kansas City v. Railway Co., 59 Kan. 427, 53 Pac. 468, 52 L. R. A. 321; The State v. Smiley, 65 Kan. 240, 69 Pac. 199, 67 L. R. A. 903; Leavenworth v. Water Co., 69 Kan. 82, 76 Pac. 451; Tarman v. Atchison, 69 Kan. 483, 77 Pac. 111.)
The judgment of the court of common pleas is reversed and the cause remanded, with instructions to render judgment for the' city on the agreed facts. | [
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The opinion of the court was delivered by
PORTER, J.:
Chod Thomas was convicted of violating a temporary injunction granted by the district court of Cowley county forbidding the maintenance of a nuisance in keeping a place where intoxicating liquors were sold illegally. He was adjudged to pay a fine of $500 and costs, and sentenced to jail for the period of six months. From that judgment he appeals.
The proceeding in which the temporary injunction was granted was brought in the district court in the name of the state by John Marshall, a citizen of Cowley county, under the authority of chapter 338 of the Laws of 1903. The court denied appellant’s motion to quash the accusation in contempt. The claim is made that chapter 338 of the Laws of 1903 is unconstitutional upon several grounds. The act, or so much of it as is pertinent to the questions raised, reads as follows:
“An act relating to the sale of intoxicating liquors and the. suppression of places where such liquors are sold or used or kept for sale 'or use contrary to law, and supplemental to chapter 232 of the Laws of 1901.
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. The attorney-general, county attorney, or any citizen of the county where such a nuisance as is defined in section 1, chapter 282, Session Laws of 1901, exists, or is kept, or is maintained, may maintain an action in the name of the state to abate and perpetually enjoin the same. The injunction shall be granted at the commencement of the action, and no bond shall be required. Any person violating the terms of any injunction granted in proceedings shall be punished for contempt by a fine of not less than one hundred nor more than five hundred dollars, and by imprisonment in the county jail not less than thirty days nor more than six months, in the discretion of the court or judge' thereof.”
This act is said to be in contravention of section 16 of article 2 of the constitution, which is as follows:
“No bill shall contain more than one subject, which shall be clearly expressed in its title, and no law shall be revived or amended, unless the new act contain the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed.” (Gen. Stat. 1901, § 134.)
The first objection is that the title does not contain the title of the former act to which it is said to be supplemental or amendatory. The requirement is' satisfied generally if the supplemental act identifies the original act by its title and declares the purpose to supplement the former. (See 1 Lewis’s Sutherland, Stat. Const., 2d ed., § 137, and cases cited in note.) The court, speaking of this constitutional provision, said, in Ash v. Thorp, 65 Kan. 60, 68 Pac. 1067, that “the mischief against which provision was made was the making of a title so narrow or restricted as not to indicate the subject of the act.” (Page 62.) In The State v. Camp bell, 50 Kan. 433, 435, 32 Pac. 35, the words “An act relating to intoxicating liquors” were held sufficiently broad to cover provisions identical with those of the act involved in the present case.
The constitutional requirement was construed in Philpin v. McCarty, Supt., &c., 24 Kan. 393, as intended to prevent the abuse of omnibus legislation, and the doctrine was there laid down as well established that it should not “be enforced in any narrow or technical spirit,” (Page 402.) It was designed to prevent the yoking or coupling of something of merit with another matter unworthy and thus making possible the adoption of the unworthy thing. If the title here had consisted only of the words “An act relating to the sale of intoxicating liquors” its subject would have been sufficiently expressed. It consisted of this and much in addition. The reference to the old law is unimportant because the title of the new act is valid and in every way sufficient to meet all the requirements of the constitution. No way can be suggested by which, as the act reads, the members of the legislature could have been misled or deceived in regard to its effect; and it is apparent that the act does not present the slightest obstacle to a full and complete examination and comparison by the public of the provisions of the law. Where a section of an act is amended “so as to read as follows,” and the new act sets out in full the words of the act as - it will read as amended, there is no violation of this provision.
But it is insisted that the act is a revivor or amendment of section 2463 of the General Statutes of 1901, and violates the above provision of the constitution because it does not contain the entire act revived or amended. It is neither a revivor nor an amendment in the sense contemplated by this provision. It does not purport, as is claimed, to be a revivor of section 2463. It purports to be supplemental to chapter 232 of the Laws of 1901, and the title of the xiew act is in the identical language of the title to that chapter. The mere fact that some of the provisions of section 2463 are contained in the-new act does not constitute it a revivor of that act. Nothing was actually revived but certain provisions of one of the sections. The rest of the act of which it is now claimed it is a revivor had never been repealed. The confusion which would have resulted from the reenactment of those portions of the entire act which were still in force is an argument against the construction appellant would have placed upon the requirements of this provision of the constitution. Such a construction would defeat the very purpose sought to be accomplished.
Another objection raised is that the reference in the body of the act to a nuisance as defined by section 1 of chapter 232 of the Laws of 1901 is void for uncertainty. Appellant claims that section 7222 of the General Statutes of 1901 is the only authority for the publication of the session laws. That section reads as follows:
“It shall be the duty of the secretary of state to cause the original enrolled laws and joint resolutions passed at each session of the legislature, together with an index containing the titles of the same, to be bound in a volume in a substantial manner; and. no other or further record of the official acts of the legislature, so far as relates to acts and joint resolutions, shall be required of such secretary; and he shall cause the title of every such volume, with the session at which the same shall' have been passed, to be written or printed on the back thereof.”
It is argued that there is no provision in this law for the division of the session laws into chapters, and that the reference in the body .of' the act in question to a nuisance as defined in section 1 of chapter 232, Laws of 1901, is a reference not authorized by the law and therefore indefinite. Section 7222, supra, was enacted as section 24 of chapter 166, Laws of 1879. It is part of the act defining the duties of state officers and is, in substance, a continuation of former enactments. Un der the same authority the session laws have always been published, and always the same method of compiling them into chapters has prevailed. It has been uniformly the custom to refer to the session laws by the chapter and section thereof.
A further contention is that the statute under consideration attempts to fix'the penalty for contempt and therefore is void as trenching upon the inherent power of the courts, first, for the reason that it obliges the court to punish for contempt regardless of its wishes in the matter, and, second, because it prescribes an arbitrary penalty, leaving to the courts no discretion. The punishment fixed by the statute for violations of this class of injunctions has been upheld by this court in The State, ex rel., v. Durein, 46 Kan. 695, 27 Pac. 148. (See, also, The State v. Linker, 5 Kan. App. 264, 47 Pac. 570.) We may agree with the premises laid down by appellant — that the district courts, being creatures of the constitution, possess all the inherent rights to punish for contempt, and that the constitution neither expressly nor by implication abridges those rights. The following extract from Rapalje on Con-tempts, section 11, cited by appellant, is sound and to the point:
“A statute which limits the amount of the fine, or term of imprisonment which the courts may impose, does not deprive them of their power to enforce affirmatively their orders, or to enforce any decree, whether affirmative or otherwise, which may be passed upon the final hearing of a cause.”
In The State v. Morrill, 16 Ark. 384, it was held that an act of the legislature which attempted to sanction the power of the courts to punish as contempts certain enumerated acts, and no other, was merely declaratory of the common law, and was entitled to respect as an opinion of the coordinate branch of the government, but that the prohibitory clause was not binding upon the courts. In another case which appellant cites (In re Shortridge, 99 Cal. 526, 34 Pac. 227, 21 L. R. A. 755, 37 Am. St. Rep. 78) it was said:
“No authority has been found which denies the inherent right of a court, in the absence of a limitation placed upon it by the power which created it, to punish as a contempt an act — whether committed in or out of its presence — which tends to impede, embarrass or obstruct the court in the discharge of its duties. It is a doctrine which is admitted in all its rigor by American courts everywhere, and does not need the support of foreign authorities based upon fhe fiction that the majesty of the king, represented in the persons of the judges, is always present in the court. It is founded upon the principle — which is coeval with the existence of the courts, and as necessary as the right of self-protection — that it is a necessary incident to the execution of the powers, conferred upon the court, and is necessary to maintain its dignity, if not its very existence. It exists independent of statute. The legislative department may regulate the procedure an$ enlarge the power, but it cannot without trenching upon the constitutional powers of the court and destroying the autonomy of that system of checks and. balances, which is one of the chief features of our triple-department form of government, fetter the power itself.” (Page 532.)
If appellant were complaining of a penalty imposed by the court in excess of that provided for in the act there might be some occasion for a fuller discussion of the questions raised than is justified under the facts. We hold that-the attempt on the part of the legislature to fix the penalty for contempts of court in the violation of injunctions provided for expressly- by the legislature for the enforcement of the prohibitory liquor law in no sense trenches upon the inherent power of the courts to punish for contempts of court. The subject of contempt here may be said to affect more seriously the whole people of the state than is the case when an order of the court is violated in some matter in which the public has no interest or concern beyond that which it always has manifested in the preservation of respect for the dignity and power of the courts. It is a part of the prohibitory liquor law, and, until some violator of an order of the courts complains that a greater punishment has been imposed upon him than that which the statute provides, it will not be necessary to consider seriously the question of the power of the legislature to fix arbitrarily the penalty for such contempts.
The next serious contention is that appellant was entitled to a jury trial, which he demanded. This is bottomed upon the claim that the title to chapter 123 of .the Laws of 1901 is invalid. That act amended certain sections of chapter 106 of the Laws of 1897, providing for a jury trial in contempt cases, by inserting' a provision that the trial should be by the court or judge. The objection to the validity, of the later act is that the title thereto is defective because it fails to identify sufficiently the title of the former act. The title of the act of 1901 reads as follows:
“An act to amend sections 3, 4 and 6 of chapter 106 of the Laws of 1897, relating to contempt of court and proceedings therein.”
The title of chapter 106 of the Laws of 1897 is as follows:
“An act to establish trial by jury in cases of contempt of court, and restricting the power of judges’ and courts in contempt proceedings.”
The same reasons are advanced that were urged against the reference to the term “chapter” in the other statute, and what was said on that subj ect applies here. An additional objection is made because the title to the act of 1897 is not stated in the same language as in the original. But the particular chapter is referred to, and in a general way the former act does relate to “contempt of court and proceedings therein,” and the title of the new act could only be said to be defective by the most technical construction. (Corn, ex rel. v. Taylor et al., Appellants, 159 Pa. St. 451, 28 Atl. 349.) In The Borrowdale, 39 Fed. 376, it was said that the subject of an original act may be expressed by referring to its subject by apt words, and without reciting its title.
It is insisted as a further argument that, as the amended act becomes a part of the original act, no one can now say what the title to the amended act is. The main purpose and object of the title to an act is to inform the members of the legislature of its scope and effect. That purpose was subserved when the act was adopted. The original act had a sufficient title; the new act has one also sufficient for its purposes .when adopted. It would, we think, be a strained construction to destroy a wise and beneficent law and defeat the will of the legislature for the reason that some incongruity can be argued between the title to the original act and that of the act as amended. The appellant was not entitled to a jury trial by virtue of section 10 of the bill of rights. (The State, ex rel., v. Durein, 46 Kan. 695, 27 Pac. 148; The State v. Linker, 5 Kan. App. 264, 47 Pac. 570; Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205.)
Appellant’s claim that there was error in not requiring the state to show that John Marshall, who made the accusation in the contempt proceedings, had personal knowledge of the offense committed in violation of the injunction has no merit. No objection was made to the jurisdiction of the court to issue the warrant. On the contrary, appellant entered into a recognizance for his appearance in the proceedings. (The State v. Moseli, 49 Kan. 142, 30 Pac. 189; Junction City v. Keeffe, 40 Kan. 275, 19 Pac. 735.) Aside from this, however, personal knowledge on the part of the prosecutor is never required in prosecutions under the prohibitory law. It has been held sufficient if he have notice or knowledge thereof when the complaint is verified. (The State v. Dugan, 52 Kan. 23, 34 Pac. 409; The State v. Moseli, supra; Junction City v. Keeffe, supra.) The appellant in this proceeding is prosecuted upon an accusation charging him with violation of an order of the court. It would be manifestly absurd if a court could not inquire into the question whether its orders were being violated unless some person with actual, personal knowledge should first present the accusation. The provisions of the statute surround the accused with every protection necessary. He is not to suffer punishment until the charge is established to the satisfaction of the court or judge. When that is done, no technical considerations should be permitted to stand in the way of the vindication of the power and authority of the court to enforce its orders.
Still another contention is made of error in that the court took judicial notice of the fact that it had issued a temporary injunction against appellant. It is claimed that this proceeding is criminal in its nature, and an entirely new and distinct proceeding from that in which the temporary injunction was issued; that it was necessary for the state to prove that there was a temporary injunction granted, and, in effect, against the appellant. We agree with appellant that the proceeding is in its nature criminal, but do not agree with him in the other contention. The proceeding is a part of the original case and the court properly took judicial notice of the previous order granted in that case. (The State, ex rel., v. Durein, 46 Kan. 695, 27 Pac. 148.)
The ingenuity of counsel is not exhausted by the objections already considered, and it is vigorously maintained that the petition in the injunction case should have been verified either by the county attorney or the attorney-general. This contention likewise calls for the construction of various statutes. It is claimed that chapter 334 of the Laws of 1905, which provides that the petition in an action in the name of the state to enjoin a common nuisance shall be verified by the county attorney or the attorney-general, applies to injunctions in liquor cases and modifies chapter 338 of the Laws of 1903. From 1901 to 1903 there was no special provision of the prohibitory liquor law relating to the granting of injunctions, for the reason that by the enactment of what is known as the Hurrel law the injunction feature of the prohibitory law was inadvertently repealed. (The State v. Estep, 66 Kan. 416, 71 Pac. 857.) In 1903 the legislature, by the enactment of chapter 338, the title and effect of which we have just discussed, restored the injunction, leaving the law substantially as it had stood since its first enactment in 1881. It had been construed a number of times by this court, and it is clear that it was the intention of the legislature to give to the private citizen the authority to prosecute and maintain actions of this kind without let or hindrance from either the county attorney or the attorney-general. In the Estep case, supra, which may be said to have called to the attention of the legislature the inadvertent repeal of this provision, it was expressly held that the remedy which had been repealed applied only to this class of nuisances. (See, also, Express Co. v. The State, 68 Kan. 818, 75 Pac. 1134.) The amendment, therefore, of the general code provision for injunctions, which has been in force since 1885 and which has been held to apply to a different class of injunctions, did not alter or affect the remedy for the abatement of nuisances under the prohibitory law as reestablished by the act of 1903.
The principle is firmly established that where a law has been settled by judicial construction, is then repealed, and afterward the same law in substance is reenacted, the legislature adopts the construction previously given to it by the courts. (Barnewall v. Murrell, 108 Ala. 366, 18 South. 831; 26 A. & E. Encycl. of L. 650.)
We have considered the other contentions of appellant but find none which merits special mention. Finding no grounds for the claims of error in the rulings of the court, the judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
At the September, 1905, term of the district court of Elk county appellant was convicted of the crime of grand larceny. His appeal is based upon the claim that the court erred in overruling his plea in bar, which was a plea of former jeopardy. It appears that there had been two mistrials at previous terms, one in September, 1904, and the other in May, 1905. The record of each of these former trials recited that when the jury returned into court and announced that they were unable to agree they were discharged.
To appellant’s plea of former jeopardy the state filed an answer consisting of a general denial. When the plea came on to be heard the county attorney filed a motion for an order of court correcting the journal entries of judgment in the former trials so as to show correctly the facts as they occurred, and, upon evidence of what in fact had taken place at the former trials, the motion was allowed and orders entered correcting the journal entries by recitals showing that the court in each trial had inquired of the jury as to whether there was any probability .of their being able to agree upon a verdict and that, upon the answer of the jury, the court made a finding that they were unable to agree and thereupon discharged them. The clerk was ordered to enter the corrections upon the journal. The trial of the plea in bar then proceeded, the court denied the request of appellant to submit the plea to a jury, and the plea in bar was overruled.
Appellant relies upon The State v. Allen, 59 Kan. 758, 54 Pac. 1060. In that case the record was: “The jury not having agreed upon a verdict in the above-entitled cause, the jury is discharged from further consideration of this case.” (Page 759.) This court, commenting, said:
“It does not appear .from the record that the jury was unable to agree. . ~ . . It does not show that the jurors informed the court or held the opinion that an agreement was improbable. ... In this case it is contended that one of the recognized statutory grounds or necessities for discharge appears — that is, the inability of the jury to agree; and if we could look beyond the record a basis for this contention might be found.” (Pages 759, 760.)
In The State v. Smith, 44 Kan. 75, 24 Pac. 84, 8 L. R. A. 774, 21 Am. St. Rep. 266, it was said :
“When an order is made by a trial court discharging a jury without verdict, to which has been committed the question of the guilt or innocence of a prisoner charged with a crime, the record ought to show affirmatively the existence of the fact which induced such order and justified the exercise of such extraordinary power. This much seems to be demanded in order to preserve to the prisoner the full benefit of the' constitutional requirement in his behalf.” (Page 80. See, also, The State v. Reed, 53 Kan. 767, 37 Pac. 174, 42 Am. St. Rep. 322.)
In the Allen case, supra, the court said:
“It results from these cases that before a court may discharge a jury to which has been submitted the question of the guilt or innocence of the accused, and especially in capital cases, there must exist: First, an absolute necessity for such discharge; second, the court must make inquiry and find and determine that such necessity existed at the time of the discharge; and, third, the essential facts as to such necessity and the finding of the court thereon must be made a matter of record; or the defendant may successfully plead former jeopardy when placed on trial on the same charge.” (Page 7.61.)
The amended record in the case at bar complies with all these requirements. It cannot be denied that the court has ample power to correct its record at any time so as to make it speak the truth. (Christisen v. Bartlett, 73 Kan. 401, 84 Pac. 530, 85 Pac. 594; Cubitt v. Cubitt, ante, p. 353.)
The plea of former jeopardy had no substantial basis upon which to rest after the record was amended, and was therefore properly overruled. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
J. F. Donald, having funds on deposit with the First National Bank of Atchison, Kan., drew a check upon it for $850, payable to Maria C.' Donald or bearer, which he delivered to the payee. The payee indorsed and delivered the check to C. B. Bennett, who in turn indorsed and delivered it to the Commercial Savings Bank, of Adrian, Mich. Donald stopped payment of the check before it was presented for payment, and the Michigan bank sued the Kansas bank for the face of the check and interest, claiming it had been accepted in writing, and that it had been purchased for value on the faith of such acceptance. The petition was framed upon the theory that an acceptance is disclosed by the following telegrams:
“Adrian, Mich., October 15,1903.
“First National Bank, Atchison, Kan.:
“Is J. F. Donald’s check on you $350 good ?
Commercial Savings Bank.”
“Atchison, Kan., October 15, 1903.
“Commercial Savings Bank, Adrian, Mich.:
“J. F. Donald’s check is good for sum named.
First National Bank.”
A demurrer to the petition was overruled, and an objection to the introduction of any evidence under the petition was likewise, overruled. The case was tried before a jury and a demurrer to the plaintiff’s evidence was overruled. The court properly reserved the interpretation of the telegrams to itself, but it instructed the jury as follows:
“If the jury believe that plaintiff bank, on being requested to purchase J. F. Donald’s check for $350, made inquiry of defendant bank by telegraph as follows : Ts J. F. Donald’s check on you $350 good ?’ and you further find that said bank on the same day by telegraph answered plaintiff bank’s said inquiry as follows: ‘J. F. Donald’s check is good for sum named,’ and then that plaintiff bank bought said check on the faith of said telegram, or acceptance, and paid therefor a valuable consideration, then your verdict should be for the plaintiff, and against the defendant bank, for the full amount of said check, together with interest thereon from October 17, 1903, at the rate of six per cent, per annum; but if you find the facts to be otherwise your verdict should be for the defendant bank.”
A verdict was returned for the plaintiff, and the question is whether the trial court was correct in holding throughout the case that a contract of acceptance was made by the telegrams. Of course there is no dispute that the transaction is governed by sections 547 and 548 of the General Statutes of 1901, which read as follow:
“No person within this state shall be charged as an acceptor of a bill of exchange, unless his acceptance shall be in writing, signed by himself or his lawful agent.
“If such acceptance be written on paper other than the bill, it shall not bind the acceptor, except in favor of a person to whom such acceptance shall have been shown, and who, in faith thereof, shall have received the bill for a valuable consideration.”
In the case of Shutt v. Erwin, 66 Kan. 261, 71 Pac. 521, which interprets section 547, the syllabus reads:
“The drawee of a bill of exchange or an order to pay money is not liable in an action thereon by the holder until after he has accepted such bill or order in writing.”
And the syllabus of the case of Eakin v. Bank, 67 Kan. 338, 72 Pac. 874, is as follows:
“A bank check is a bill of exchange within the meaning of section 548 of the General Statutes of 1901, providing that an acceptance of a bill of exchange written on paper other than the bill ‘shall not bind the acceptor, except in favor of a person to whom such acceptance shall have been shown, and who, in faith thereof, shall have received the bill for a valuable consideration.’ ”
Nor is there any dispute that the written acceptance contemplated by the statute may be made by telegrams. (7 Cyc. 765.)
The order contained in a check is for payment in money instantly upon demand. No presentation for acceptance and no acceptance is contemplated, as in the case of an ordinary bill of exchange. The bank is under no obligation to do other than pay, and the obligation to pay runs' to the maker and not to the holder. If it refuse to pay when it has funds of the maker in its possession subject to check the holder has no remedy against the bank. He must look to the maker.
When an ordinary bill of exchange is presented for acceptance the drawee is under the positive duty of accepting or refusing to accept; and if acceptance be not plainly negatived by whatever he .does he will be bound as an acceptor, because acceptance is something contemplated by the bill itself. A request upon a bank that it accept a check is a request for the creation of a legal relation between the holder and the bank wholly without and beyond the purview of the paper. If such relation be established it imposes upon the bank a liability to a party to whom it was not before bound at all, and it converts the privilege of the bank to pay if in funds into an absolute and unconditional duty to pay, no matter what may be the state of the depositor’s account. Any one claiming to be the beneficiary of a contract of this kind, independent of and collateral to the check, must clearly show that the bank intended to make it.
Neither law nor custom binds parties to' the use of any set formula in arranging an acceptance. They may choose their own words. Brevity is- not simply allowable — it is commendable; but in all cases there must be no doubt that an absolute promise to pay was made. If the transaction involve two writings, a proposition and a response, they should be construed together. The true principle governing the interpre tation of communications like the telegrams between the parties to this suit was grasped and stated in the case of Rees v. Warwick, 2 B. & Ald. (Eng.) 113. In that case the drawer wrote to the drawee as follows: “Yesterday we valued upon you, favor W. Johnson & Co. two months for 100 l. which please to honor.” The drawee replied: “Your bill 100 l. to W. Johnson & Co. shall have attention.” It was held by Mr. Chief Justice Abbott that, to make a letter an acceptance, it ought to be in terms which admit of no doubt; that the phrase “shall have attention” is at least ambiguous; that it may mean the drawee would examine and inquire into the state of the drawer’s account for the purpose of ascertaining whether or not the bill would be accepted; and that unless the words used import a clear and unequivocal acceptance no recovery may be had. Mr. Justice Holroyd said:
“The very circumstance that it has been so often lamented that anything short of a written acceptance on the face of the bill should be held to make a party liable as acceptor shows the inconvenience that arises from the great uncertainty which is thereby introduced. In this case the words contended to be an acceptance are that the bill ‘shall meet attention.’ The defendant does not say, as in Wynne v. Raikes, that the bill ‘shall be paid or accepted,’ but in fact only that he will attend to it. Consistently then with these words it might depend on the state of the account between them whether he would accept the bill or not.” (Page 116.)
Tested by this rule the defendant bank’s telegram does not express an acceptance.
The'inquiry indicates no clear intention to extract from the bank a new contract to pay, independent of its duty to Donald. It is entirely consistent with the expression of a simple desire for information relating to Donald’s standing at the bank. It fairly means: “Is J. F. Donald’s account with you sufficient to make his check for $350 good?” The answer is strictly re sponsive to the inquiry. It indicates no clear intention to make Donald’s check good whenever presented and whatever the condition of his account. It is entirely consistent with the simple purpose to state Donald’s standing at the bank on the day of the'telegram. It fairly means: “Donald’s accohnt is now sufficient to meet a check for the sum named.” The writings are not equal to the unambiguous and unequivocal “Will you pay?” and “We will pay.” Other cases recognize the principle here applied. In the case of Kahn, Jr., v. Walton et al., 46 Ohio St. 195, 20 N. E. 203, the inquiry was: “Are M. A. Walton’s checks for $2000 good?” The answer was: “Yes, sir:” (Page 201.) The court, in denying that an.acceptance was disclosed, said:
“The bank is the agent of the drawer. Its duty is to pay his money as he directs. It owes no duty to the holder, except under the drawer’s directions, until by virtue of those directions it assumes some obligation to the holder. Up to that time the latest order from the drawer governs. But after the bank has paid the check, or placed itself under an obligation to pay it, the drawer’s power of revocation is ended. This obligation may be incurred by acceptance. It is sometimes said that the legal effect of the acceptance is to place the holder of the check in the position of a depositor. By the acceptance a new and specific engagement is entered into by the bank, which is to unconditionally pay the sum named to the legal holder of the check. The acceptance or certification is sometimes evidenced by writing the word ‘good’ on the check by the authorized officer or agent of the bank; but no particular mode or form is necessary, and it is generally held that a verbal acceptance is sufficient. But whatever the mode or form employed, there must be enough to indicate the acceptance of the particular check.
“It is manifest there was no acceptance, or certification of the checks in question in this case. The telegraphic correspondence between the bank and Kahn’s agent amounted to no more than an assurance that valid checks to the amount stated, drawn by Walton, or that might be drawn by him, were then good. No particular checks were mentioned in the inquiry, nor any intimation given that the enquirer had received, or was about to receive such checks; nor had the bank any means of identifying the checks to which the inquiry related. Its telegram, therefore, did not commit the bank to the payment of any particular check. At most, it was information that Walton had, at its date, money on deposit' to the amount stated, subject to check.” (Page 206.)
In the case of Cook v. Baldwin, 120 Mass. 317, 21 Am. Rep. 517, it was held that the words “I take notice of the above,” written upon a bill of exchange and signed by the drawee, do not of themselves necessarily import an acceptance. The court said:
“The words written upon the bill are a recognition only that the bill has been presented for acceptance; they are not inconsistent with a positive refusal to accept or to become bound to pay the plaintiffs.” (Page 319.)
In the case of Myers v. Union National Bank, 27 Ill. App. 254, the inquiry was: “Will drafts for thirty-eight hundred dollars, made by J. R. Snyder on you, be paid if presented Monday?” The answer was: “Drafts named are good now.” (Page 255.) The court said:
“There is a distinct implication in the words ‘Drafts named are good now’ that the bank would not undertake to answer for the state of Snyder’s account beyond the moment when its telegram was sent. . . . An acceptance is a contract, and does not differ from other contracts in the essential requirement of a meeting of minds. A bank is not bound to accept by telegram the checks or drafts of its depositors,- although in possession of funds to pay. Its duty in such cases is to accept a draft, or pay a check, only on presentment. One relying on a telegram as an acceptance should see to it that the language used will, at least, fairly bear the meaning.” (Page 261.)
In the case of Bank of Springfield v. First National Bank, 30 Mo. App. 271, a check was offered in part pay ment of a draft. The financial standing of the maker of the check was not good, and the bank holding the draft telephoned the drawee of the check asking if it was good. The response was that the check was “all Right.” The maker’s account was good for the check on that day and the next, but it was not presented until the second day after the telephone communication, and then after the maker had failed. The holder sued the drawee, claiming a parol certification. In the opinion of the court several reasons were given why the plaintiff should not succeed, but the controlling one appears in the syllabus, which reads thus:
“A parol representation by the bank upon which a check is drawn that the check is good is not equivalent to a certification, and does not bind the bank to pay it whenever presented until barred by limitation; nor does it release the holder from the duty of proper diligence in presentment for payment. It binds the bank to nothing more than that the statement was true at the time when it was made.”
These authorities are sufficient to illustrate the rule that the drawee of a bank check cannot be held liable upon a claimed contract of acceptance external to the bill unless the language used clearly and unequivocálly import an absolute promise to pay.
The decision in the case of Garrettson v. North Atchison Bank, 39 Fed. 163, 7 L. R. A. 428, relied upon by counsel for plaintiff, was affirmed by the circuit court of appeals upon the identical principle discussed above. The telegrams in that case were as follow: “Will you pay James Tate’s check on you, twenty-two thousand dollars? Answer.” “James Tate is good. Send on your paper.” The circuit court of appeals said:
“The question put to the bank was wholly free from ambiguity. It was clear, direct, and pointed: ‘Will you pay James Tate’s check on you, twenty-two thousand dollars? Answer.’ There can be no doubt that it was Streeter’s purpose, in sending this telegram, to ascertain whether the bank would bind itself to pay the check in case he took it in payment for the cattle to be delivered to Tate. Can there be any doubt that the bank müst have understood the purpose and meaning of the dispatch thus addressed to it? The bank was engaged in the business of receiving money on' deposit, and paying it out on checks drawn by its depositors. No other meaning could be given to the telegram by the bank than that James Tate’s check on the bank for $22,000 had been offered to Streeter, and before he accepted it he wished to know whether it would be paid on presentation. So far, therefore, as the meaning of the telegram sent to the bank is persuasive in determining the contract of the parties, it must be held that its purpose was to procure an absolute- promise of payment from the bank, before the same could be re- , ceived in payment for the cattle contracted to be sold to Tate.
“It cannot be questioned, and it is practically admitted by counsel for the bank, that'if the answer had been, ‘The bank will pay Tate’s check for twenty-two thousand dollars on presentation,’ there would be no doubt that thereby the bank would have been, bound absolutely for the payment of the check. Can any other meaning be fairly given to the words actually used by the bank in answering the- question put to it? These are, ‘James Tate is good; send on your paper.’ Counsel for plaintiff in error claim that the answer should only be construed to be a statement that Tate was good for the amount named, and cannot be construed to be a promise to pay the check. The question put to the bank, and to which an answer was requested, was not whether Tate was good, but whether the bank would pay his check for a given sum. _ It cannot be supposed that the . bank intended- to return an ambiguous answer for the purpose of misleading the party asking the question, and therefore, if the answer had been limited to the words ‘Tate is good,’ there would be ground for holding that the bank thereby intended an affirmative answer to the categorical question put to it; but all doubt is put at rest by the remaining words of the answer, to wit,' ‘Send on your paper.’ These words invited action on part of the person to whom they were addressed. They are not merely an expression of an opinion. Read in connection with the message sent by Streeter, and which they were intended to answer, the meaning thereof is, ‘Send on your check on Tate, and we will pay it.’ ” (North Atchison Bank v. Garrettson, 51 Fed. 168, 2 C. C. A. 145, 147.)
There is no occasion to consider what words indorsed upon a check and signed by the drawee will amount to a certification when the check is put into circulation upon the credit of the indorsement.
Donald, upon his own request, became a party to the action. The court instructed the jury to find in his favor if they found in favor of the defendant bank, and under direction of the court a verdict was returned for Donald, upon which judgment was rendered. Manifestly this judgment cannot now stand. It is therefore reversed, and the cause as to Donald remanded for further proceedings. The judgment against the defendant bank is reversed, and the cause remanded with instruction to sustain its demurrer to the petition.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
The jury made over seventy special findings, among them the following:
“(17) Ques. When said box car 7706 was put in' that train, and at the time the deceased lost his life, was, or was not, one of the grab-irons or foot-rests of the ladder on the south end of said box car 7706 mashed flat against the wood of the car so that it could not be safely used by the deceased as a handhold or as a foot-rest? Ans. Yes.”
“(21) Q. Did the deceased attempt to get from the top of said box car 7706, in the exercise of ordinary care, when [the train was] in motion, in an effort to reach his post of duty at the head end of the train near Scullin or Mill Creek station, at about two o’clock in the morning of the 7th day of November, 1902, or did he not? A. Yes; he did.
“(22) Q. If you answer ‘yes,’ then state if he did so in the customary manner and by the proper method in vogue by head-end trainmen under similar circumstances?' A. Yes.”
“(24) Q. If you answer question 16 ‘it was,’ then state would the deceased have lost his life if said grab-iron, or foot-rest, on the south side of said box car 7706 had not then been mashed flat against the said end of said box car, in all-reasonable probability? A. No.”
“ (26) Q. At the time of the death' of said William A. Johnson, was or was not the rung or foot-rest of the ladder of said box car 7706, on the south end of said box car, in a defective and unsafe condition for the trainmen to use or handle in the night-time in the discharge of their duty, in the exercise of ordinary care, and train in fast motion? A. Yes.
“(27) Q. If you answer ‘yes,’ then state if said con dition could have been discovered by reasonably thorough or proper inspection, either before said box car 7706 was put in that train for transportation or, when en route and before the death of said William* A. Johnson? A. Yes.”
“(81) Q. Was or was not the top of the load upon saifl flat car (next to said box car) lower than the said grab-iron, or foot-rest, which was mashed flat against said end of said box car 7706? A. Yes; lower.”
.“(35) Q. If you answer ‘yes,’ then state if he fell from the grab-iron on the south end of said box car 7706 to the ground between the end of said box car and the end of said flat car, near the southwest corner of same, thence down to the ballast and between the rails? A. Yes.”
“ (41) Q. Was or was not said box car and its several appliances complained of, and each of them reasonably, properly and timely inspected by the defendant at Sapulpa, I. T., before said car was put in that train for transportation in and for the trainmen to Handle in the exercise of ordinary care? A. No, it was not.
“(42) Q. If you answer the last question ‘no,’ then state if that was a contributive proximate cause of the injuries to and death of said William A. Johnson. A. Yes.”
•“(56) Q. If you find and believe from the evidence that said appliances and car 7706 were defective and dangerous to use, then and there, and that the defects were of such a nature that in the exercise of ordinary care, by reasonable and proper and timely inspection- or otherwise by the defendant company, they could have been discovered, then state if the defendant should have discovered all same, before the injuries to, and death of, the said William A. Johnson, in the exercise of reasonable diligence. A. Yes.”
The principal contention of the plaintiff in error is that the defendant in error was not entitled to recover because she failed to show by evidence what the courts of the Indian Territory would hold in such a case. In her petition she pleaded the laws of the Indian Territory, and on the trial introduced in evidence the act of congress of May 2, 189.0, putting in force and effect in that territory certain chapters of Mansfield’s digest of the statutes of Arkansas, and also offered in evidence those sections of the Arkansas statutes which provide for maintaining an action for wrongful death and in reference to descents and distributions. In her petition there was also an averment as follows:
“Plaintiff further avers and states that, under *the law in force and effect at the time and place of the death of said William A. Johnson, and still is in full force and effect (where his death and injuries occurred) , in and of the Indian Territory, the same being of similar import and character as the law of the state of Kansas, in such case made and provided, the plaintiff herein is entitled to maintain this action and demand against the defendant, and she may enforce the same not only in the courts of the Indian Territory but in the courts of the state of Kansas as well, and such enforcement in the courts of the state of Kansas would be beneficial to the plaintiff and in no manner contravenes the policy of the state of Kansas, and is not against good morals — the laws of said territory in this regard being substantially the same as the laws of the state of Kansas, and not penal but remedial in character — as will more fully and at. large appear by referring to said laws of said territory.”
Plaintiff in error’s position is: (1) That having alleged that she might have maintained this action in the Indian Territory it was incumbent upon defendant in error to prove what the courts there would hold in such a case; (2) that when congress adopted for the territory chapter 20 of Mansfield’s digest of the Arkansas statutes it did not adopt the construction of the common law as declared by the supreme court of Arkansas, but that, in order to determine what the common law of the Indian Territory is, we must look to the decisions of the United States courts for the eighth circuit, which have jurisdiction there. In the principal case cited by the plaintiff in error (St. Louis & S. F. R. Co. v. Arnett, 84 S. W. 599, 600) the exact contrary was held by the Texas civil court of appeals with respect to the effect of the act of congress of May 2, 1890. The court there said:
“Such putting in force in the Indian Territory of the common law as then existing in Arkansas carried with it the construction theretofore placed thereon by the courts, of that state.”
It was also said in the opinion that the uncontradicted evidence in that case “shows that in that state [Arkansas], prior to May 20, 1890, the question of fellow servant is determined exclusively by the character of the act intrusted to the person, rather than the rank of the employee.” If it were necessary to determine in this case what the common law of the Indian Territory is upon the question of fellow servants, this court, in the absence of evidence, would assume it to be the same as that of Kansas. (St. L. & S. F. Rly. Co. v. Weaver, 35 Kan. 412, 11 Pac. 408, 57 Am. Rep. 176.) Was it necessary for plaintiff to prove what the common law of the Indian Territory was at the time the accident happened, or what the courts of that territory would hold if this action were tried there ?
. The whole force of both contentions of plaintiff in error rests upon the assumption that the evidence in the case establishes that the only negligence for which the railroad company could in any event be held liable is the negligence of fellow servants of ■ the deceased. In other words, that the death was caused by the negligence of the inspectors, who, it is claimed, under the laws of the Indian Territory were fellow servants of deceased. Plaintiff in error says:
“The most that can be said from the evidence is that the inspectors at Sapulpa or Francis failed to do their duty, either to inspect the car thoroughly for such a defeot or to mark the same as in bad order.”
The assumption that this is all the'negligence shown is, we think, unwarranted. The railroad company offered no evidence that the car was ever inspected; so far as the evidence shows, it never was. The defect was an obvious one which the most casual inspection would have disclosed. The jury therefore rightfully inferred that the car was put into the train without inspection. (Mo. Pac. Ely. Co. v. Barber, 44 Kan. 612, 24 Pac. 969.) The railroad company was charged in the petition with negligence in not having the car inspected and in putting it into the train for the employees to use in its dangerous and defective condition. Its duty required it to use reasonable diligence to provide the employees with reasonably safe appliances for the performance of their duties. (Railroad Co. v. Penfold, 57 Kan. 148, 45 Pac. 574; Mo. Pac. Rly. Co. v. Dwyer, 36 Kan. 58, 12 Pac. 352.) The doctrine of assumed risk has no application. In the absence of notice deceased had the right to assume that the car and its appliances were reasonably safe. (Mo. Pac. Rly. Co. v. Barber, supra; A. T. & S. F. Rld. Co. v. Seeley, 54 Kan. 21, 37 Pac. 104; Railroad Co. v. Penfold, supra; Railway Co. v. Michaels, 57 Kan. 474, 46 Pac. 938; Railway Co. v. Bancord, 66 Kan. 81, 71 Pac. 253.) It has been repeatedly declared to be the duty of the railroad company to inspect its cars before putting them in service. (Solomon Rld. Co. v. Jones, 30 Kan. 601, 2 Pac. 657; St. L. & S. F. Rly. Co. v. Weaver, 35 Kan. 412, 11 Pac. 408, 57 Am. Rep. 176; A. T. & S. F. Rld. Co. v. Napole, 55 Kan. 401, 40 Pac. 669; A. T. & S. F. Rld. Co. v. Wagner, 33 Kan. 660, 7 Pac. 204.)
What the courts of the Indian Territory would hold in a case where the only negligence shown is the act of a fellow servant is therefore wholly immaterial. The same question was decided in A. T. & S. F. Rld. Co. v. Lannigan, 56 Kan. 109, 42 Pac. 343. In that case the injury occurred in Missouri, at a time when the common-law rule in force in that state relieved the master from liability for the negligent act of a fellow servant. The proximate cause of the injury, however, was the failure of the railroad company to furnish the employee with a suitable lantern, and this court held that the fact that a fellow servant of the plaintiff was also guilty of negligence which contributed to the injury did not necessarily prevent plaintiff from recovering. In A. T. & S. F. Rld. Co. v. Moore, 29 Kan. 632, a judgment against the company was reversed because the trial court refused to instruct that under the common law in force in Texas, where the injury occurred, plaintiff could not recover for an injury caused by the negligence of a fellow servant. On a second trial plaintiff recovered again, and, in 31 Kan. 197, 1 Pac. 644, the judgment was affirmed upon the ground that the evidence showed that the injury was caused by the ■culpable negligence of the road-master, whose duty it was to direct repairs and keep the road in a safe condition, and that even under the rule of the common law the company was liable.
It was not necessary for plaintiff to prove a conclusion of law. When she established that the action here was one which under the laws of the Indian Territory survived, that the laws of descents and distributions there permitted plaintiff to maintain the action, and that the death was caused by the negligence of the railroad company in putting the defective car into the train', this court assumes, as a matter of law, that the holding of the courts there would be the same as that of the courts here.
The next serious contention is that there was no proof connecting the death of the deceased with any negligence of defendant. Plaintiff in error suggests a number of ingenious theories, any one of which might, if true, account for the death of brakeman Johnson, and the claim is made that in the absence of direct evidence showing the exact manner in which he fell the jury could not rightfully find that his fall was caused by the defective grab-iron- on the end of the car. They urge that he might inadvertently have walked off the end of the box ear, or fallen in attempting to slide down the brake-staff, but these are purely speculative possibilities, rendered improbable by the fact that he was proved to have been a capable, ex-. perienced, intelligent brakexnan and that the ordinary and usual manner in which he would have gone from the box car to the flat car was down the ladder and around the end of the box car, resting his feet upon the grab-iron, as well as by the fact shown in evidence that if he had walked off the end of the car he would have fallen upon the flat car. The evidence, it is true, is largely circumstantial, but the exact place where he fell is clearly established by the blood marks on the trucks of the car. He was seen going over this car to the head of the train in the performance of his duties. His lantern was seen to fall suddenly to the ground. Something caused him to fall. The court rightfully told the jury that he was presumed to have been exercising ordinary care to preserve his life and his person from injury. If it had been the missing grab-iron at the top of the car which caused him to fall he naturally would have fallen at the side of the train, and this would not have accounted for the presence of his body between the rails. There was, then, some evidence to warrant the jury in finding that his fall was occasioned by the defective grab-iron between the cars. “A charge of negligence, like any other fact, may be established by circumstances as well as by positive testimony.” (A. T. & S. F. Rld. Co. v. Brassfield, 51 Kan. 167, 174, 32 Pac. 814. See, also, Railroad Co. v. Perry, 65 Kan. 792, 70 Pac. 876.)
It is urged that there was no evidence of the length of time the defect existed; that the grab-iron on the end of the car might have been mashed in by coming in contact with the load of rails on the flat car after'the train was made up. Defendant in error met this theory by proof that the load on the flat car was so far below the grab-iron that the latter could not have become mashed in that way, leaving the inference that its condition must have been the same when it was placed in the train, and the jury so found.
It is also claimed that deceased had knowledge of the defective condition of the car, and therefore was guilty of contributory negligence. The conductor testified that at one of the stations north of where the accident occurred deceased, told him there was a defective car in the train and that it had a missing handhold which came near letting him down, but this referred only to the missing grab-iron at the top of the car at the south. The jury found specially that it was the defective condition of the grab-iron mashed flat against the end of the car which caused deceased to fall. There is nothing in the conductor’s evidence showing any knowledge of the defect which caused the death.
Complaint is made because the court admitted the testimony of a brakeman with reference to the usual and proper method of going from a box car to a flat car under the conditions and circumstances in which deceased was placed. This was not error. Similar testimony was held to be competent in Railway Co. v. Merrill, 61 Kan. 671, 60 Pac. 819.
There was no error in admitting proof that the defective condition of the car was repaired immediately after the accident. (St. L. & S. F. Rly. Co. v. Weaver, 35 Kan. 412, 11 Pac. 408, 57 Am. Rep. 176; City of Abilene v. Hendricks, 36 Kan. 196, 13 Pac. 121; A. T. & S. F. Rld. Co. v. McKee, 37 Kan. 592, 15 Pac. 484.)
The court gave the following instruction: “The burden is on the defendant to prove by a preponderance of the evidence the affirmative allegations of its answer.” Defendant had alleged in its answer the defense of contributory negligence, and it is contended that .under the authority of the case of Railway Co. v. Merrill, supra, this instruction was error. It is urged that the most of the evidence bearing upon contributory negligence came from plaintiff’s witness, Gardner, the rear brakeman. The fact is, however, he gave no testimony tending tó show contributory negligence of the deceased. He did not know what the deceased was doing a,t the time the accident occurred, except that he saw him going over the cars. We presume counsel claim that in his answer to a number of hypothetical questions as to the probable consequences of a brakeman’s attempting to make a descent between the box car in question and the flat car ahead of it by going down the brake-staff some evidence of contributory negligence entered the case, but there was no evidence that deceased attempted to cross over in such a manner. In the Merrill case the person injured was a witness and testified to his own acts at the time he was injured, and that was the only testimony from which his contributory negligence could have been shown. The doctrine in that case, we think, should not be extended ; certainly not to a case where there is no testimony introduced by plaintiff tending to show contributory negligence. Plaintiff in error could not have been in any manner prejudiced by this instruction, if it be conceded to be as objectionable as the one in the Merrill case. The other objections to the instructions have been examined, but we find nothing which is deemed prejudicial to the plaintiff in error.
At the close of the evidence counsel for plaintiff waived the opening argument. Defendant thereupon contended that by waiving the opening argument counsel also waived the right to make a closing argument, and upon the court’s permitting counsel for plaintiff to reply to the argument of defendant an exception was saved, and it is claimed that the court erred. (Railroad Co. v. Vanzego, 71 Kan. 427, 80 Pac. 944.) Defendant had the right to submit the case to the jury without argument when plaintiff waived the opening statement, but, having elected to argue the case to the jury, was not in a position to object to plaintiff’s closing the argument by a reply. The party on whom rests the burden of proof has the right to open and close the argument; he can waive either of these, or both. By waiving the opening he waives the right to close, provided the other party also waives his argument. This is the orderly method of procedure universally adopted by the courts. The case cited does not go to the extent claimed for it by the plaintiff in error.
Other errors are complained of which we do not consider material or of sufficient weight to require mention. We find no substantial errors in the record, and the judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
Two objections to the action of the court in this case are presented: (1) The exclusion of evidence offered .to show that the plaintiff had no actual knowledge of the existence of the judgments or judgment liens on the land at the time he purchased it; (2) that, upon the facts, not the defendants but the plaintiff was entitled to judgment.
If, as it has uniformly been decided, a purchaser of either real or personal property is bound to take notice of the facts affecting the title to the property which the records of the county show, and which records the statutes provide shall be public notice, then it is quite immaterial whether or not Kuhn had actual knowledge of the existence of the judgments. In the absence of conduct on the part of the person who afterward as- ■ serts the facts shown by the records to the prejudice of the purchaser which prevents an examination of the records or induces the purchaser not to make such examination, it is negligence for a purchaser of either ■real or personal property to make the purchase without ascertaining the facts shown by the records which may affect the title to be acquired. In the absence of such fraudulent conduct the purchaser will be presumed to have bought with knowledge of all the facts which the records at the time would have disclosed. Equity cannot be invoked to relieve one from the consequences of his own negligence. (Hargis v. Robinson, 63 Kan. 686, 66 Pac. 988.)
If, then, as is to be presumed, Kuhn bought the land with knowledge that the three mortgages and two judgments were subsisting liens thereon, and assumed and agreed to pay the mortgage debts but ignored the judgment liens, is he entitled, having paid one mortgage, to be substituted to the position of the holder of the mortgage paid and to have the mortgage considered unpaid when an attempt is made to sell the land on execution to satisfy the judgments? If so, having paid the senior mortgage lien, could he not, in a suit to foreclose the second mortgage, claim subrogation as to the first? Or, having paid the first and second, could he not claim subrogation as to both, in a suit to foreclose the third ? Sufficient answer it is to say that the equitable relief of subrogation was not designed to aid speculation nor to relieve litigants, from the consequences of their own negligence, ignorance or mistakes of judgment. (Hargis v. Robinson, supra.) This equitable relief originated in the evident justice of substituting a surety who has been compelled to pay the debt of his principal to the place of the creditor as against other creditors affected by the transaction. It has on principle been extended to the relief of junior lien-holders who, to protect their own interests, have been compelled to pay off prior liens, and to other cases where natural justice required its application and where no violence was done to legal rights of others.
It is urged in behalf of plaintiff that at the time he bought the land in question it was of no greater value than the amount of the three mortgages and taxes due thereon. We are not cited to any evidence and have scanned the record in vain to find evidence in support of this assertion. Whether the land was worth more or less than the debts assumed, which constituted the only consideration for the purchase, is probably immaterial. At the time Kuhn made the purchase he had no interest in the land to protect. At the time he paid the Myers mortgage he did not stand in the relation of surety for its payment; by his contract he had made it his debt. He became the principal 'debtor, and his grantor, who executed the note and mortgage, became the surety. (Schmucker v. Sibert, 18 Kan. 104, 26 Am. Rep. 765; Rouse v. Bartholomew, 51 Kan. 425, 32 Pac. 1088.)
We have not been cited to any authority, nor have we found any, supporting the proposition that an independent purchaser of real property encumbered with liens who has no interest to protect therein, and no other equitable claim, can assume the payment and pay such lien or liens as he may choose and claim subrogation as against all inferior liens, save the cases of Darrough v. Herbert Kraft Co. Bank, 125 Cal. 272, 57 Pac. 983, and Matzen v. Shaeffer, 65 Cal. 81, 3 Pac. 92. These cases do not appear to be in accord with the weight of authority nor with the accepted reason for granting this equitable relief, and are disapproved. The case of Young v. Morgan, 89 Ill. 199, does not appear to be in point, as the land in question was a homestead at the time of the sale and the judgment creditor had no lien thereon; the homesteader had a right to sell the land clear of creditors’ claims.
The case of Plumb v. Bay, 18 Kan. 415, is cited in support of plaintiff’s claim. In that case the mortgage paid by Plumb, the lien of which was preferred to an apparently prior judgment lien, was given for the purchase-price of the land. In Bowling v. Garrett, 49 Kan. 504, 31 Pac. 135, 33 Am. St. Rep. 377, the purchaser had a mechanic’s lien on the land to protect at the time he purchased it, and his equity for this and for a mortgage on the land which he had assumed and agreed to pay as a part of the purchase-price, and afterward had in part paid, was preferred to the lien of a judgment rendered in an action begun after the mechanic’s and mortgage liens had attached.
The decisions of this court have been liberal in allowing subrogation where any equity required it and no legal right of others was encroached upon, but in no case does it appear the court has gone to the extent demanded in this case. Whether Kuhn would have purchased the land had the judgment liens been brought to his attention, assuming he had no knowledge of them, is a question of pure speculation, as they were for small amounts. Being charged with the knowledge of these liens, and having no interest to protect, he must be held to have simply stepped into his grantor’s shoes. When he paid off a mortgage that was prior to the judgment lien it had the same effect as if the payment had been made by the grantor before he parted with his title.
The judgment of the district court is affirmed.
All thé Justices concurring. | [
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The opinion of the court was-delivered by
Johnston, C. J.:
This was an action for the negligent killing of Carlos M. Fajardo, brought by his father and mother against the Atchison, Topeka & Santa Fe Railway Company. The Fajardos were native-born inhabitants of Porto Rico, and the parents still reside there. Carlos, who was over sixteen years of age when he, died, had been sent to school in New York for about two years, after which he was placed in the University of Kansas, where he was being fitted for professional life in the law department of that institution: In June, 1903, he started on a trip to Porto Rico to spend the vacation with’ his parents, but was killed in a head-on railroad collision within the limits of Kansas. The father and mother, who were next of kin, brought this action to recover the value of his life, and the jury awarded them $4000.
It is argued that the Fajardos cannot maintain the action because they are aliens, or at least are not entitled to the protection of the statutes enacted for the benefit of the people of the state. It is difficult tb think of native-born inhabitants and residents of Porto Rico as aliens. Living as they do in territory belonging to the United States, under laws enacted and regulations prescribed by the United States, and owing no allegiance to any other nation than our own, it is not easy to regard them as aliens who should be excluded from the courts and denied the remedies provided in our statutes. Some question has arisen as to whether the revenue provisions of the federal constitution apply to the territories recently acquired from Spain, and as to their exact status in our government, but it is unnecessary in this case to determine whether Porto Ricans are within the scope and operation of all our laws, fundamental and statutory, or whether legislation by congress extending citizenship to them and fixing their status in our government is necessary. If we assume that they are not in fact citizens of the United States, the plaintiffs were nevertheless entitled to maintain the action. The statute which permits a recovery in behalf of next of kin for wrongful death does not make it conditional on the plaintiff’s being a citizen of the United States. It provides:
“When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action had he lived against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages cannot exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.” (Code, § 422; Gen. Stat. 1901, § 4871.)
As will be observed, the only conditions prescribed are that the act or omission which caused the death shall be such that if the party killed had lived he might have maintained an action against the wrong-doer for the injury resulting from the same act or omission; that the personal representatives of the deceased must begin the action within two years; and that the damages, which are limited to $10,000, must inure to the next of kin. The section giving the right of action is general in its terms and appears to apply to all widows and children or next of kin of the deceased, regardless of residence or nationality. A number of cases brought under this section, where the beneficiaries were aliens, have passed through this court without contest, on the theory that this remedy, like all common-law remedies, was available alike to residents and non-residents, citizens and aliens. While statutes enacted by the legislature have no operation outside the state, they do apply to all who come within the state, and to all rights arising within its limits. In jurisdictions where common-law principles obtain, and where no exceptions have been made, the theory is that the statute-law is all-pervading, operating alike upon all who are or come within the state. It recognizes every right arising within its jurisdiction. Generally speaking, all who are or come within the bounds of the state must yield obedience to the law, and all may appeal to it for protection and avail themselves of its remedies. It is true that an action for wrongful. death could not be maintained under the common law until what is known as Lord Campbell’s Act, and state statutes similar to it, were enacted. The passage of these acts, however, removed the obstacle to a recovery for negligent killing, and the right of action is now as available as any of the common-law remedies. The statute giving the right of action is remedial in character, and should receive a liberal interpretation, with a view of extending the remedy to those who have suffered damages from the death of a relative which was caused by the wrongdoing of another.
It is said that the remedy is not available to aliens because they are not specifically mentioned in the statute; but our legislature has never proceeded upon the theory that it was necessary to enumerate the classes to whom the law should apply, nor that the remedies afforded should not be available to aliens unless expressly conferred upon them. A great many statutory remedies are given in the Kansas statutes, but it has never been supposed that they were to be withheld from non-resident aliens because not expressly enumerated in the státute. On the other hand, it has been the theory that in the absence of an express exception the remedies provided by statute are open to every one who appeals to our courts to the same extent as are the ordinary common-law remedies. The courts in interpreting, similar statutes have held that non-resident aliens were entitled to avail themselves of the remedy .given. In Massachusetts it was held that a non-resident, alien mother might recover for the wrongful death of her son. (Mulhall v. Fallon, 176 Mass. 266, 57 N. E. 386, 54 L. R. A. 934, 79 Am. St. Rep. 309.) The same view was taken of the same statute in the United States circuit court in Vetaloro v. Perkins, 101 Fed. 393. In Iowa, where an Italian resident of that state was killed, it was held that his mother, who Resided in Italy, might recover damages resulting from her son’s death. In deciding the question it was said:
“Under the common-law theory, laws are territorial in their operation; and, while a sovereign may legislate with reference to its subjects outside of its territorial jurisdiction, general legislation is assumed to apply to all persons residing, all property situated, and all rights arising within its territorial jurisdiction, regardless of the status of the parties, as being citizens or aliens. As to the rights arising or recognized within the jurisdiction, a non-resident alien may maintain suit in the courts without any special statutory authority.” (Romano v. Brick & Pipe Co., 125 Iowa, 591, 593, 101 N. W. 437, 68 L. R. A. 132, 106 Am. St. Rep. 323.)
In Illinois, in the case of Kellyville Coal Co. v. Petraytis, 195 Ill. 215, 63 N. E. 94, 88 Am. St. Rep. 191, a non-resident, alien mother brought an action against a coal company for. negligently causing the death of her son in a coal-mine in that state. The supreme court sustained her right to maintain the action, saying:
“It may "be said here that neither citizenship nor residence is requisite to entitle a person to sue in the courts of Illinois. That right is certainly not questioned when sought to be exercised here by citizens of other states, and we perceive no reason why it should be granted to citizens of other states of the Union but denied to persons living in foreign countries.” (Page 218.)
The supreme court of Minnesota, in the case of Renlund v. Commodore Mining Co., 89 Minn. 41, 93 N. W. 1057, 99 Am. St. Rep. 534, had before it the question whether a non-resident alien might bring an action under a statute authorizing the next of kin to sue for compensation for the death of a human being due to the negligence of another. In construing the statute, and holding that the action could be maintained, it was remarked:
“The object of the statute was to remedy the harshness of the common law, and in some degree compensate those dependent upon the person killed. It would indicate an unnatural and selfish motive to draw a distinction between the dependent relatives who reside in another state or foreign government and those residing in our own state; and, unless such intention is manifest, we are not at liberty to assume that the lawmakers were legislating upon any such basis.” (Page 47.)
A statute similar to our own was considered by the appellate court of Indiana in the case of Cleveland, etc., R. Co. v. Osgood, 36 Ind. App. 34, 73 N. E. 285, which was an action for wrongful death, and where the next of kin for whom the, action was brought were aliens. It contained no exceptions because of alienage. The court treated the statute as remedial,.one to be interpreted liberally, and, in upholding the right of an alien to its benefits, said:
“The statute is broad and inclusive in terms. No exception is made where the beneficiaries named are aliens. To deny the action because the widow, children of next of kin are aliens and non-residents is to incorporate into it a restriction which it does not contain.” (Page 38.)
The supreme court of Arizona, in the recent case of Bonthron v. Phœnix Light & Fuel Co. (Ariz., 1903), 71 Pac. 941, 61 L. R. A. 563, held that residents of Canada might maintain an action under the statute for the negligent killing of their son in Arizona. After a general review of the authorities the court determined that the weight of authority, both in this country and in England, was in favor of the theory that the remedy was equally open to aliens and citizens of this country. It was remarked:
“We do not think that, in order to entitle an alien to maintain this action, specific authority therefor must be granted such alien by the legislature. The act is broad and comprehensive, and by its terms includes any surviving husband, wife, child, or parent, irrespective of,their residence or citizenship; and this includes aliens, in the absence of any restrictive legislation. We know of no rule of law that prohibits the legislature from extending such rights to non-resident aliens, or prevents their accepting the same! As Mr. Chief Justice Holmes said, in effect, supra, legislative power is territorial, and restricted thereto only so far as it imposes duties on persons outside its jurisdiction, and not in so far as it confers benefits. The object of the act is to extend beyond the limits of the common law the right to recover reparation for a wrong, and we fail to see why, the wrong having been committed, the same reparation should not be made, whether those entitled to it are citizens of a state of our Union, or citizens of that country whose law we have inherited, and whose législation in this instance we have adopted.” (Page 943.)
Under the New York statute allowing a recovery by the next of'kin for wrongful death it was held-that an action might be maintained for the death of a resident alien by his next of kin, who were aliens residing in the province of Macedonia, in the Ottoman empire. (Tanas v. Municipal Gas Co., 88 N. Y. Supr. Ct., App. Div., 251, 84 N. Y. Supp. 1053. See, also, Luke v. Calhoun County, 52 Ala. 115; Augusta Railway Co. v. Glover, 92 Ga. 142, 18 S. E. 406; Chesapeake, Ohio & Southwestern Railroad Company v. Higgins, 85 Tenn. 620, 4 S. W. 47; Philpott v. The Mo. Pac. Ry. Co., 85 Mo. 164; Stewart v. Baltimore & Ohio Railroad Co., 168 U. S. 445, 18 Sup. Ct. 105, 42 L. Ed. 537.)
Opposed to these authorities are the cases of McMil lan v. Spider Lake S. M. & L. Co., 115 Wis. 332, 91 N. W. 979, 60 L. R. A. 589, 95 Am. St. Rep. 947, Deni Appellant, v. Penna. R. Co., 181 Pa. St. 525, 37 Atl. 558, 59 Am. St. Rep. 676, and Brannigan v. Union Gold-Min. Co., 93 Fed. 164, but they appear to have been based largely on the theory that the English courts had held under Lord Campbell’s Act that its benefits wére not available to non-resident aliens. The case of Adam v. British and Foreign Steamship Company, (1898) 2 Q. B. 430, did so hold, but the doctrine of that case was repudiated in the recent one of Davids-son v. Hill (1901), 2 K. B. 606, which, together with The Guldfaxe, L. R. 2 Adm. & Ecc. 324, and The Explorer, L. R. 3 Adm. & Ecc. 289, in effect holds that a non-resident alien may maintain an action under Lord Campbell’s Act. It thus appears that the weight of authority in both countries is that alienage is not a condition affecting a recovery under such acts.
It is argued, however, that the effect of section 422a of the civil code is to exclude foreigners from the benefit of the remedy. That section provides:
“That in all cases where the residence of the party whose death has been or hereafter shall be caused as set forth in section 422 of chapter 80, Laws of 1868, is or has been at the time of his death in any other state or territory, or when, being a resident of this state, no personal representative is or has been appointed, the action provided in said section 422 may be brought by the widow, or where there is no widow, by the next of kin of such deeéased.” (Gen. Stat. 1901, §4872.) • '
This provision was enacted so that the right given by section 422 (Gen. Stat. 1901, § 4871) might be more effective. It had been decided that only* the representatives of a deceased could bring the action in behalf of the next of kin; also, that an administrator could not be appointed unless there was an estate to be administered, and that the claim against the wrongdoer responsible for the death was not an asset of the estate of the deceased. {Perry, Adm’r, v. St. J. & W. Rld. Co., 29 Kan. 420; Wheeler, Adm’r, v. St. J. & W. Rld. Co., 31 Kan. 640, 3 Pac. 297; Limekiller, Adm’x, v. H. & St. J. Rld. Co., 33 Kan. 83, 5 Pac. 401, 52 Am. Rep. 523; U. P. Rly. Co. v. Dunden, 37 Kan. 1, 14 Pac. 501; Estate of Mallory v. B. & M. R. Rld. Co., 53 Kan. 557, 36 Pac. 1059; City of Eureka v. Merrifield, 53 Kan. 794, 37 Pac. 113.) To meet this contingency, and to enable the next of kin to recover where no administrator had been or coúld be ‘appointed, the supplemental section was enacted. Its purpose was to extend, not to restrict, the remedy. The essential features of the right of action are given in section 422, while section 422a provides an additional method of enforcing the right. In speaking of the function of the later section, in Berry v. K. C. Ft. S. & M. Rld. Co., 52 Kan. 759, 34 Pac. 805, 39 Am. St. Rep. 371, this court said:
“It does not create a new cause of action.. No amount of damages Or any limitation is stated therein. It is simply a change of remedy. Its purpose is that the cause of action given by section 422 shall not lapse or be abortive by reason of the non-residence of the deceased, or the non-appointment of a personal representative.” (Page 770.)
It is manifest from the history of the legislation, as well as the language of the acts, that the legislature did not intend to take the remedy away from the next of kin of the deceased, but rather to make it easier for them to enforce it. The supplemental act provides a way of bringing an action where the deceased was not a resident of the state and there was no representative who could bring the action, or where he was a resident of the state and no representative had been or could be appointed. Residence in another state or territory means a residence outside of Kansas. So it was said in A. T. & S. F. Rld. Co. v. Napole, 55 Kan. 401, 40 Pac. 669:
“The later provision of the statute is supplemental to section 422, and is intended to make an existing cause of action available where the deceased was a non-resident of the state, or where, being a resident, no personal representative is or has been appointed. It has been held that the amendment does not create a new cause of action nor impose any limitation on an existing one. It simply changes the remedy, by providing that the cause of action given by section- 422 shall not be lost on account of the non-residence of the deceased or the non-appointment of a personal representative.” (Page 416.)
There is a contention that the damages awarded— namely, $4000 — are excessive. No questions of greater difficulty are presented than those involving the pecuniary loss which next of kin suffer in the death of a child. No precise measure has been found, nor is it easy to state the quantum of proof which will give a basis of recovery. It is said that it must be left largely to the discretion of the jury; but it is also ruled that damages cannot be rested on the conjecture of jurors, but must be supported by proof tending to show pecuniary benefits already realized or in reasonable expectation from the continuance of the life. (Coal Co. v. Limb, 47 Kan. 469, 28 Pac. 181; Railway Co. v. Ryan, 62 Kan. 682, 64 Pac. 603; Railway Co. v. McLaughlin, 73 Kan. 248, 84 Pac. 989.) Where the deceased was a minor and lived with his parents, who would have been entitled to his services had he lived, there is an implication of pecuniary loss, but a substantial amount cannot be recovered unless the circumstances proved, as to age, intelligence, conduct and relationship, furnish a basis for a reasonable expectation of pecuniary benefit. It is not essential to a recovery in the case of a child that there should be proof of valuable services already rendered, nor direct evidence of the exact value of the services which would have been rendered had it lived, nor yet a fixed amount of pecuniary loss sustained in its death. This is not practicable. In U. P. Rly. Co. v. Dunden, 37 Kan. 1, 14 Pac. 501, the child for whose death the action was brought was nearly twelve years old, and the difficulty of measuring the pecuniary damage in the absence pf direct evidence as to loss w.as con- . sidered. It was there said:
“The jury had presented to them evidence of the ■ parents of the deceased; their position in life; the occupation of the father; the condition of his health; the age of his son; his intelligence; his ability to earn money, etc.; and it was their province, from this evidence and their general knowledge, to form an estimate of the damages with reference to the pecuniary injuries, present and prospective, resulting to the next of kin. It is impracticable to furnish direct evidence of the specific loss occasioned by the death of a child; and to hold that without such positive proof a plaintiff could not succeed would in effect defeat any substantial recovery.” (Page 5.)
Here the situation and relation of the parents and the child were shown. The boy’s conduct, declarations, and disposition toward his father and mother, as well as his age and intelligence, were in evidence and furnished a basis for a reasonable expectation of prospective benefits. The parents had sent him to New York and Kansas to be educated, at considerable sacrifice and expense, and his superior training and qualifications gave him greater earning capacity to render assistance to his parents. In view of his devotion to them it is not unreasonable to infer that their kindness to,- and sacrifices for, him were and would have been fully appreciated and reciprocated. The expectation of benefits, too, is not limited to minority. In Railroad Co. v. Cross, 58 Kan. 424, 49 Pac. 599, it was said :
“While the plaintiffs would have no right to take the boy’s earnings without his consent after he should reach'his majority, it might well be that the ties of natural affection would be sufficiently strong to cause him to do them even more service after his majority than before. A recovery by parents for the death of a ' son after his majority is not at all uncommon.” (Page 428.)
Considering all the circumstances brought out in the testimony, there was a basis for a well-founded expectation of pecuniary benefits to the parents had the son lived, and in view of the station in life which they occupied the amount awarded cannot be said to be excessive. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The appellants’ first contention is that they cannot be held to answer for the crime of murder on presentment by information; that as citizens of the territory conveyed to the United States by the Louisiana-purchase treaty they are entitled to all the rights and immunities of citizens of the United States under the third article of that treaty. It is further claimed that, under article 5 of the amendments to the constitution of the United States, no person can be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment by a grand jury.. It is readily conceded that the inhabitants of the ceded territory have all the rights and immunities of citizens of the United States, and are, in fact, citizens of the United States. The constitutional provision, however, is applicable to the federal courts only, and not to the courts of the states, and there is no repugnancy between it and the provisions of our statute providing for presentment by information after a preliminary examination. It is within the sovereign power of the state to prescribe the method of procedure'in prosecutions for violations of the laws of the state, and such procedure is not within the powers delegated to the national government. (Barron v. The Mayor and City Council of Baltimore, 32 U. S. 243, 8 L. Ed. 672; The State of Kansas v. Barnett, 3 Kan. 250, 87 Am. Dec. 471.)
Many trial errors are assigned, but we consider it necessary only to advert to one — the failure of the court to define and instruct as to degrees' of the crime charged inferior to murder in the first degree. The circumstances of the case indicate that a foul murder was committed in the perpetration of a robbery or for the purpose of stealing the property and' money which belonged to the deceased. In other words, the circumstances, considered alone, naturally indicate murder in the first degree, and that only. After the arrest the appellants made admissions to the sheriff, and there is no conflict in the evidence as to their statements. Their statements were made, according to the evidencé of the sheriff and another witness, in the presence of each other, and neither disputed any assertion of the other.
The sheriff and' his deputy testified, in substance, that Mark Morris Newton had admitted that he struck King, the deceased, with a neck-yoke; that when he struck him the first time he did not intend to kill him, but that King was so near dead he thought he would put him out of his misery; that he then struck him several times; and that Morris also showed the sheriff the neck-yoke, which had blood marks upon it. They also testified that the reason Morris gave for striking King the first blow was that while he and King were watering their horses at the well King asked him what church his people belonged to; that he said they did not belong to any church, and then King went to abusing people that did not- belong to a church, and that made him (Morris) mad; that he did not say anything, but when he got a chance he got up and struck King on the head with a neck-yoke; and that Morris said his brother, Clark, did not know anything about it till the first blow was struck.
The admission of Edward Clark Newton,, according to the evidence of the same witnesses, was, in substance, that he knew nothing about any trouble between his brother and King until Morris struck the first blow; that then he jumped up and said, “Morris, what have you done?” and then ran around behind the schoolhouse, near which the killing was done; that Morris came around the schoolhouse and made him go and help him-; that Morris threatened Clark that if the latter did not help him he (Morris) would serve him as he had King; that he went with Morris, and Morris took King’s money from the body and made him (Clark) take it to keep for him; that they tied the feet and hands, put the body into one of the wagons, hitched teams to both wagons, and taking all the horses and mules left the place; that he- (Clark) threw the body over the bridge into the river; and that he did not in any way assist or aid in the killing, and did what he did only for the purpose of helping his brother out of the trouble.
There was much other evidence, to wit, that blood spots were found near the schoolhouse, that the body was found in the river with wounds upon the head to account for the death, that the wagon and wagon-sheet, in which appellants admitted hauling the body, were bloody, and that the wagon, harness and horses belonging to King were in the possession of appellants when they were arrested, and about $400, admitted to have been King’s money, was found in Clark’s pockets.
As before said, the circumstances almost conclusively indicate that the homicide was committed in the perpetration of a felony, which constitutes murder in the first degree. If the admission of Morris — that he determined to kill King to put him out of his misery— is true, he did the final act with deliberation and premeditation. If the statement of Clark is true, he is not guilty of any degree of murder; he is only an accessory after the fact. The jury evidently did not believe his story. Their verdict shows that they must have believed the appellants conspired to rob King, if not to kill him for that purpose, and that the killing was done in the perpetration of the robbery.
The court saw no evidence of any degree of murder except the first degree, and instructed accordingly; and no instruction was asked on the part of the defense challenging the attention of the court to any other degree of murder of which either of the defendants, if guilty at all, could under the evidence be guilty. Let it be conceded that the jury, in the exercise of their indubitable right, might believe so much or so little of the evidence purporting to relate the statements of the appellants .as appears to them credible; that they might accept so much of.the statements as they believe the appellants made as the true history of the occurrence, and reject so much as they believe to be false. Let it also be conceded that, by eliminating portions of the statements and giving the most favorable interpretation of the circumstances to the appellants, a reasonable theory is presented under which one or both of the appellants might be found guilty of a degree of murder inferior to murder in the first degree. If so, it was the duty of the court to define such inferior degrees, to formulate the theory, and to instruct in reference thereto. (The State v. Clark, 69 Kan. 576, 77 Pac. 287; The State v. Kittle, 70 Kan. 241, 78 Pac. 407.)
Where the evidence naturally suggests the guilt of an accused in a lower degree as probable, the rule as above stated is salutary, not only as a matter of justice to the accused but as giving greater certainty to the conviction of those really guilty but in a lower degree than charged. It is the common experience in practice that juries are prone to acquit entirely where one really guilty of crime is charged with a higher grade of the crime than the evidence justifies. It is a common device of criminal lawyers, in defending, to magnify the enormity of the crime charged in order to enlist sympathy and detract attention from the crime proven. By directing attention to the mountain top they hope the foot-hills may escape observation. So it is the duty of the court, by its instructions, to call the attention of the jury to every degree of the crime embraced in the charge of which the evidence naturally suggests the guilt of the accused as probable; and this without a special request, and even over the objection of counsel. It is also the province of counsel to request an' instruction upon any grade of the crime which may be omitted; and, if upon any reasonable theory or construction of the evidence it is a proper matter for the consideration of the jury, it is error for the court to refuse the request.
Does it follow, in cases like the one at bar, where the court has instructed as to the only degree of the crime which the evidence naturally suggests as probable, and the jury have returned a verdict of guilty in that degree, which verdict is abundantly supported by the evidence, that, because appellants’ counsel can, by discarding evidence which the jury might properly have disregarded and by construing circumstances as the jury were not likely to construe them but as the jury had a right to do, build up a reasonable theory of guilt in a lower degree, the judgment should be set aside as erroneous? Our answer is, “No.” Such a rule would devolve upon the trial court the duty of speculating upon every possible theory under the evidence. The better rule is that the court should instruct as to every degree of the crime charged of which the evidence naturally suggests the defendant may probably be guilty, and if, by request for further instruction, the attention of the court is challenged to any other degree of the crime, upon which the jury could be justified in finding the accused guilty upon any reasonable construction of the evidence, the court should further instruct as to such degree.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
This is a suit by the plaintiff in error, on its cross-petition, to quiet its title to the lots in controversy. No other issue was triable under the cross-petition and,reply. It is settled in this state that if a tax-deed holder, in a suit by him against the original owner to quiet title to real estate, fails in establishing his title he cannot convert his suit into a possessory action and have the taxes paid by him declared to be a lien on the real estate. (Corbin v. Young, 24 Kan. 198.) The reason for this is that ample provision is made by statute for relief in such cases and there is no occasion for resorting to a court of equity. Section 7681 of the General Statutes of 1901 reads:
“If the holder of a tax deed or any one claiming under him by virtue of such tax deed be defeated in an action by or against him for the recovery of the land sold, the successful claimant shall be adjudged to pay to the holder of the tax deed, or the party claiming under him by virtue of such deed, before such claimant shall be let into possession, the full amount of all taxes paid on such lands, with all interest and cost as allowed by law up to the date of said tax deed, including the cost of such, deed and the recording of the same, with interest on such amount at the rate of twelve per cent, per annum,' and the further amount of taxes after the date of such deed, and interest thereon at the rate of twelve per cent, per annum.”
Under this section the plaintiff in error has a plain and adequate remedy which is open to it and which it must pursue if it desires to have taxes paid by it adjudged a lien on the real estate.
Counsel insist that Corbin v. Young, 24 Kan. 198, is a precedent for their contention. They say that in that case “the court did the very thing that the plaintiff in error asked to have done in this case; adjudged the taxes a lien bn the land.” Evidently counsel misunderstand the ruling in that case. The suit was commenced by a tax-deed holder against the original owner to quiet his title. Upon the trial the tax title was set aside, the amount due plaintiff on account of taxes paid by him was found, but the court refused to adjudge a lien on the land therefor. This was one of the principal grounds of error urged in this court. Upon that ques tion the court, in affirming the judgment of the trial court, said:
“If this had been an action for the recovery of the land, then, under section 142, Laws of 1879, page 967, the claim must have been sustained. (Fairbanks v. Williams, ante, p. 16.) But an action to quiet title is not an action for the recovery of the land. Indeed, in this case the plaintiff alleged in. his petition that he was in the actual possession. Can the plaintiff, not proceeding under said section 142, but in an ordinary equitable action, obtain a decree of foreclosure of a tax lien ? It is undoubtedly true that by statute taxes are made a lien, and that equity, when it takes jurisdicion, enforces a lien by foreclosure and sale. But has equity any jurisdiction in this case? Can the holder of a tax lien foreclose it as he would a mortgage lien? We think not. The statute has prescribed the proceedings in reference to taxes, tax sales, redemptions, and also to secure the rights of tax purchasers; and whenever these proceedings apply a party may not invoke the general jurisdictio'n and proceedings of the courts.” (Page 201.)
Counsel also cite Sheaff v. Husted, 60 Kan. 770, 57 Pac. 976, and assert that it was held in that case that “the plaintiff in an action to quiet a tax title is entitled to have his lien for taxes.” No such question was involved or decided in that case. The only question decided was that a tax-title holder who procured the tenant of the original owner to attorn to him had such possession that he might maintain a suit to quiet his title.
The holder of a tax title who institutes a suit to quiet his title against the original owner, if defeated, cannot in the same suit have the taxes paid by him adjudged a lien on the real estate. The statute provides another remedy, and he must resort to such remedy. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The validity of chapter 487 of the Laws of 1903, relating to stock-yards, is the principal question raised by the pleadings and the decision of the trial court. That act declares and defines what shall constitute public stock-yards, the duties of those operating them, and prescribes maximum charges for the use of the yards and for the facilities and services furnished, viz.: For cattle fifteen cents per head, calves eight cents per head, hogs six cents per head, and sheep four cents per head. There is also contained in the act a regulation of the sale of dead animals, and it finally provides that a violation of its provisions shall be deemed a misdemeanor, the penalties prescribed being a fine of not more than $100 for the first conviction; for a second conviction a fine of not less than $100 nor more than $200; for a third conviction a fine of not less than $200 nor more than $500 and imprisonment in the county jail for not more than six months; and for each subsequent offense there is imposed a fine, of not less than '$1000 and imprisonment in the county jail not less than six months.
It is contended that the act, if enforced, would infringe the natural right of the defendant to make such contracts in respect to its business as it might choose to make, deprive it of property and compensation for property without due process of law, and violate the federal constitution, particularly the fifth, eighth and fourteenth amendments of that instrument; and, further, that it conflicts with sections 1, 9 and 20 of the bill of rights of the state constitution. (Gen. Stat. 1901, §§ 83, 91, 102.)
The first and main contention is that the Wichita stock-yards company is strictly a private corporation, engaged in a purely private business, with full liberty of contract, and is therefore not subject to legislative regulation and control. The state has conferred on the defendant the right to exist as a corporation and to exercise the chartered privileges which ordinarily go with incorporation, but no special franchises or rights have been conferred upon it by'either the state or the city of Wichita.
As to corporations which are gwsi-public in character and in behalf of which the power of eminent domain is exercised — those .upon which special privileges have been conferred — there is no dispute. It is conceded by all that these are so far affected with a public interest as to be subj ect to reasonable regulation and control by the state. But is the enjoyment of special rights and powers conferred by the public the test as to whether a business is impressed with a public interest? Many kinds of business carried on without special franchises or privileges are treated as- public in character, and have therefore been subjected to legislative regulation and control. The nature and extent of the business, the fact that it closely touches a great many people, and.that it may afford opportunities for imposition and oppression, as in' cases of monopoly and the like, are circumstances affecting property with a public interest. Police regulations of the business of dealing in patent-rights have been maintained on the theory that it affords great opportunity for imposition and fraud. (Mason v. McLeod, 57 Kan. 105, 45 Pac. 76, 41 L. R. A. 548, 57 Am. St. Rep. 327; Allen v. Riley, 71 Kan. 378, 80 Pac. 952.)
Public necessity and the public welfare are the broad general grounds upon which the right of legislative control is based, rather than that a special privilege has been conferred in consideration of which public control is conceded or required. In Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77, Chief Justice Waite, referring to the right to regulate business under the police power, said: “The government regulates the conduct of its citizens one toward another, .and the manner in which each shall use his own property, whén such regulation becomes necessary for the public good.” (Page 125.) Upon these considerations the business of banking has been subjected to control, and the right to regulate the interest which may be charged for the use of money is now unquestioned. The police power is exercised in controlling the business of insurance, the operation of mills, hotels, theaters, wharves, markets, warehouses for the storage of grain and tobacco, common carriers, the collection and distribution of news, and the business of supplying and distributing water and gas. Some of these rest upon considerations of health, or the safety or the convenience of the people, but all fall within the general grounds of public necessity and public welfare. •
In LaHarpe v. Gas Co., 69 Kan. 97, 76 Pac. 448, it was declared that “the production and distribution of natural gas for light, fuel and power affect the people generally to such an extent that the business may be regarded as one of a public nature, and is almost, if not quite, a public necessity, the control of which belongs to the state.” (Page 100.) That business has the element of transportation, although it includes other elements which affect it with a public interest. The supreme court of the United States has also said, with reference to the regulation of a water company: “That it is within the power of the government to regulate the prices at which water shall be sold by one who enjoys a virtual monopoly of the sale, we do not doubt.” (Spring Valley Water-works v. Schottler, 110 U. S. 347, 354, 4 Sup. Ct. 48, 28 L. Ed. 173.)
Since the decision of the public-elevator cases by the supreme court of the United States there is little room for contention that the business of operating stockyards like those at the city of Wichita is not affected with a public interest, nor within the scope of legislative regulation. In Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77, it was expressly decided that a warehouseman who receives and stores grain for compensation is engaged in a business of a public nature; that the public has an interest in the use to which he devotes his property; and that for the public good he must submit to public control. Although this decision met with a strong dissent and much protest, it has been affirmed and reaffirmed by the same court, and the principle upon which it rests has been recognized in a multitude of that court’s decisions. (Budd v. New York, 143 U. S. 517, 12 Sup. Ct. 468, 36 L. Ed. 247; Brass v. Stoeser, 153 U. S. 391, 14 Sup. Ct. 857, 38 L. Ed. 757; W. W. Cargill Co. v. Minnesota, 180 U. S. 452, 21 Sup. Ct. 423, 45 L. Ed. 619; Cotting v. Kansas City Stock-yards Co., &c., 183 U. S. 79, 22 Sup. Ct. 30, 46 L. Ed. 92.) These decisions are conclusive authority upon the questions arising under the federal constitution, and following them it must be held that the stock-yards business, as conducted at Wichita, is impressed with a public interest, and therefore subject to reasonable statutory control.
The operation of stock-yards has more of the characteristics of a public business than the carrying on of an elevator or a warehouse. It possesses the market features, including considerations of sanitation and health, and it also has more of the monopolistic features. The stock-yards in question are situated in a commercial center, and constitute the public live-stock market for a great region largely devoted to the livestock business. The principal railroads of the southwest country enter Wichita and their tracks all unite in the stock-yards, and the business is therefore intimately related to the business of transportation. Here the stock-raisers and shippers meet and deal with the packers and purchasers, and here live stock in transit from Oklahoma, Texas and Colorado to more distant markets are unloaded for rest, feeding, and care. No other market exists nearer than Kansas. City on the east, which is about 260 miles away, and the nearest ones on the west are Denver and Pueblo, about 500 miles away. Because of the nature of the business and the railroad facilities the establishment of other markets at or near Wichita is impracticable, and hence these ' stock-yards are, and of necessity will be, the only available place where the breeders, feeders and dealers of a great scope of country can conveniently market their live stock. The company has, therefore, a practical monopoly of a vast business, affecting thousands of people who are almost obliged to deal at that market and at the rates which the company may choose to charge. To the company is committed the feeding, watering and .weighing of cattle sent from great distances, whether accompanied by the owner or not, and this is an additional reason for regulation and control.
In Cotting v. Kansas City Stock-yards Co., 82 Fed. 850, it was held that “a stock-yard business, located in a large city, at the junction of many railroad lines, which furnishes the only proper facilities for the unloading, resting and feeding of live stock in transit, and for the sale of cattle within said city, is affected with a public use, so as to be subject to legislative control, and the proper legislative body may prescribe a maximum rate of compensation for the care and handling of stock thereat.” (Syllabus.) This case was taken to the supreme court of the United States, where it was reversed because of a discriminatory provision of the statute under consideration. ■ In determining that question, however, Mr. Justice Brewer, who rendered the decision, in commenting on the nature of the business of stock-yards and the interest of the public in it, took occasion to say:
“Tested by the rule laid down in Mwnn v. Illinois, it may be conceded that the state has the power to make reasonable regulation of the charges for services rendered by the stock-yards company. Its stock-yards are situated in one of the gateways of commerce, and so located that they furnish important facilities to all seeking transportation of cattle. While not a common carrier, nor engaged in any distinctively public employment, it is doing a work in which the public has an interest, and, therefore, must be considered as subject to governmental regulation.” (Cotting v. Kansas City Stock-yards Co., &c., 183 U. S. 79, 85, 22 Sup. Ct. 30, 46 L. Ed. 92.)
In Delaware, &c., R. R. Co. v. The Central Stockyard Co., 45 N. J. Eq. 50, 17 Atl. 146, 6 L. R. A. 855, the court discussed the nature of-the business, and held that the business of maintaining stock-yards corresponds with that of warehousemen, and therefore is subject to the same general principles of law. It was held, however, that in the absence of a statute a court of chancery could not impose regulations upon those engaged in the business without usurping legislative power.
In Stock Exchange v. Board of Trade et al., 127 Ill. 153, 19 N. E. 855, 2 L. R. A. 411, 11 Am. St. Rep. 107, it was held that the market quotations and reports of the board of trade of Chicago had become affected with a public interest, and so long as it continued in business it must furnish reports and quotations to all who may desire them for lawful purposes, • and upon the same terms. In a later case before the same court it . was held that the Chicago Live Stock Exchange could not be treated as a public market in the ordinary sense, but in the course of the decision it was said that the character and magnitude of its business was such as “to warrant the legislature, in the exercise of its legis lative discretion, in declaring a public use, and- placing said business under legal control and supervision, but such power, in our opinion, does not rest with the courts.” (Live Stock Commission Co. v. Live Stock Exch., 143 Ill. 210, 240, 32 N. E. 274, 18 L. R. A. 190, 36 Am. St. Rep. 385. See, also, Head v. Amoskeag Manufacturing Company, 113 U. S. 9, 5 Sup. Ct. 441, 28 L. Ed. 889; State v. Edwards, 86 Me. 102, 29 Atl. 947, 25 L. R. A. 504, 41 Am. St. Rep. 528; Nash, &c., v. Page, &c., 80 Ky. 539, 44 Am. Rep. 490; Davis v. The State, 68 Ala. 58, 44 Am. Rep. 128; Baker v. The State, 54 Wis. 368, 12 N. W. 12; Brechbill v. Randall et al., 102 Ind. 528, 1 N. E. 362, 52 Am. Rep. 695; State, ex rel., v. Gas Co., 34 Ohio St. 572, 32 Am. Rep. 390; Freund, Police Power, § 373; Cooley’s Const. Lim., 7th ed., 870; 1 Tied. State & Fed. Control, § 95.)
We conclude that the stock-yards business as conducted in Wichita is clothed with a public interest, and that the state in the exercise of its police power may, within constitutional limitations, subject it to regulation and control.
Having determined that it is competent for the legislature to regulate the business of maintaining stockyards, there is little left of this controversy. It is conceded that the power of prescribing maximum charges for the use of property, including the things and services furnished by the company, is not without limit. While the fixing of rates in such cases is a legislative function, the regulation must be reasonable, and so it has been held that those‘carrying on a business aifeeted with a public interest cannot be required to give the use of their property or to perform services without reward, nor to suffer that which would amount to the taking of private property without just compensation or due process of law. It has been said that the court will grant relief against legislation fixing rates for a public-service corporation which are so unreasonable as practically to destroy the value of the property used in the business. (St. L. & San Francisco Railway v. Gill, 156 U. S. 649, 15 Sup. Ct. 484, 39 L. Ed. 567.) In another case the court said:
“It is unnecessary to decide, and we do not wish to be understood as laying down as an absolute rule, that in every case a failure to produce some profit to those who have invested their money in the building of a road is conclusive that the tariff is unjust and unreasonable. And yet justice demands that every one should receive some compensation for the use of his money or property, if it be possible without prejudice to the rights of others.” (Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, 412, 14 Sup. Ct. 1047, 38 L. Ed. 1014.)
Again, it has been held that when the question arises it is the duty of'the courts to take into consideration the interests of both the public and the owner of the property devoted to a public use, and determine whether the legislative rates as an entirety are so unjust as practically to destroy the value of the property for all the purposes for which it was acquired. (Covington, &c., Turnpike Co. v. Sandford, 164 U. S. 578, 17 Sup. Ct. 198, 41 L. Ed. 560.) It has been often declared that the basis for testing reasonableness of rates charged under legislative sanction must be the fair value of the property in use. (Smyth v. Ames, 169 U. S. 466, 546, 18 Sup. Ct. 418, 42 L. Ed. 819; San Diego Land Company v. National City, 174 U. S. 739, 757, 19 Sup. Ct. 804, 43 L. Ed. 1154; Cotting v. Kansas City Stock-yards Co., &c., 183 U. S. 79, 22 Sup. Ct. 30, 46 L. Ed. 92.)
The extent to which the courts may interfere with rates established by the legislature is a subject upon which there is a diversity of opinion, and which has not been definitely settled by the supreme court of the United States. In one of the later cases it was said:
“But it should also be remembered that the judiciary ought not to interfere with the collection of rates established under legislative sanction unless they are so plainly and palpably unreasonable as to make their enforcement equivalent to the taking of property for public usé without such compensation as under all the cir cumstances is just both to the owner and to the public; that is, judicial interference should never occur unless the case presents, clearly and beyond all doubt, such a flagrant attack upon the rights of property under the guise of regulations as to compel the court to say that the rates prescribed will necessarily have the effect to deny just compensation for private property taken for the public use.” (San Diego Land Company v. National City, 174 U. S. 739, 754, 19 Sup. Ct. 804, 43 L. Ed. 1154.)
In Cotting v. Kansas City Stock-yards Co., &c., 183 U. S. 79, 22 Sup. Ct. 30, 46 L. Ed. 92, it was said:
“What shall be the test of reasonableness in those charges is absolutely undisclosed. As to parties engaged in performing a public service, while the power to regulate has been sustained, negatively the court has held that the legislature may not prescribe rates which, if enforced, would amount to a confiscation of property. But it has not held affirmatively that the legislature may enforce rates which stop only this side of confiscation and leave the property in the hands and under the care of the owners without any remuneration for its use. It has declared that the present value of the property is the basis by which the test of reasonableness is to be determined, although the actual cost is to be considered, and that the value of the services rendered to each individual is also to be considered. It has also ruled that the determination of the legislature is to be presumed to be just, and must be upheld unless it clearly appears to result in enforcing unreasonable and unjust rates.” (Page 91.)
In this case it was suggested in the argument that the rates are such as to warrant judicial interference. The answer of the defendant, however, does not fairly raise the question, and the pleader appears to have carefully avoided the making of allegations which would bring the case within the rule of the federal decisions. It is -averred that the charges imposed are the customary charges at other stock-yards; that they are no more than a just, fair and reasonable compensation for the facilities and labor furnished and for the services rendered; and that any less charges would be inadequate and insufficient compensation and less than such facilities, labor and services are actually worth. In another paragraph the pleader states:
“Defendant therefore avers that whether the intrinsic value and worth of the services rendered by it for its aforesaid charges are considered, or whether those charges are compared with the charges made for services rendered by others in connection with such live stock, or for services somewhat similar rendered to other animals, its aforesaid charges are reasonable and fair in themselves, no more than made for similar services at other yards, and are the usual and customary charges everywhere; and that any less charges will be inadequate and insufficient compensation lor the facilities and service furnished and rendered, md would not afford defendant any compensation -whatever for some of such facilities and services.”
But these averments fall short of alleging that the rates imposed by the legislature are so unreasonable and unjust as to amount to the taking of property without jus.t compensation. It does not' allege and show, as Mr. Justice Harlan remarked, “clearly and beyond all doubt, such a flagrant attack upon the rights of property under the guise of regulations as to compel the court to say that the rates prescribed will necessarily have the effect to deny just compensation for private property taken for the public use.” (San Diego Land Company v. National City, 174 U. S. 739, 754, 19 Sup. Ct. 804, 43 L. Ed. 1154.) The fact that the legislative rates for some services and facilities or for all services and facilities furnished are unreasonable is not enough. The rates prescribed by law, as well as those charged by defendant, are so much per animal handled, and this includes the use of the property devoted to the purpose as well as the services and facilities furnished. The question is, as was said in Covington, &c., Turnpike Co. v. Sandford, 164 U. S. 578, 17 Sup. Ct. 198, 41 L. Ed. 560, whether the legislative rates are, as an entirety, so unreasonable and unjust as to destroy the value of the property devoted to the public use, or to deprive the owner of property without due process of law. There is nothing in the answer to the effect that the statutory rates, taken as an entirety, will not yield some return, or a reasonable return, on the money invested or on the property devoted to the public use. In one of the latest cases decided by the supreme court of the United States, in refusing to interfere with legislative rates prescribed by the Minnesota railroad and warehouse commission, it was said:
“It is sufficient, however, for the purpose of this case to say that the action of the commission in fixing the rate complained of as to this particular class of freight has not been shown to be so unjust or unreasonable as to amount to a taking of property without due process of law, and we therefore conclude • that the judgment of the supreme court must be affirmed.” (Minneapolis & St. Louis Rld. Co. v. Minnesota, 186 U. S. 257, 268, 22 Sup. Ct. 900, 46 L. Ed. 1151.)
The statement that the company is only charging, such rates as are customary in other stock-yards is certainly not the equivalent of allegations to the effect that a less charge would practically destroy the property and money employed in the business, or deprive the owner of it without due process of law.
How far the .legislature may go in limiting compensation which corporations engaged in a business clothed with a public interest may charge before it may be regarded as the taking of property without just compensation or due process of law is an important question. May the courts interfere if there is just some reward on the value of the property in use? Or are the owners of the property entitled to a substantial reward — such returns as are ordinarily received on property devoted to a private use, or upon ordinary private investments? Is the corporation entitled to the current rate of interest on the present value of the property devoted to the use? Will less than that be a fair and reasonable return? And if it is not reasonable, measured by the earnings on ordinary invest ments, does the enforcement of such rates amount to the taking of property without just compensation? Is there any distinction to be made between rates for public-service corporations and public stock-yards in respect to the scope of the legislative power? And if the owner devotes his property to a business in which the public has an interest does he not submit his business and the rates charged the public to the judgment of the legislature as to what is reasonable, so long as the rates are not confiscatory? These questions are so important that it would not become the court to express an opinion upon them until they are fairly raised in the record and it is found necessary to the determination of the rights of the parties.
The averments of the answer do not show that the act of the legislature regulating stock-yards violates any of the provisions of the federal constitution mentioned. Nor do we find anything substantial in the claim that the act conflicts with the state constitution, in that the power to pass the act is not expressly delegated to the legislature. In section 1 of article. 2 of that ihstrument (Gen. Stat. 1901, § 119) the people expressly vested full legislative .power in the house of representatives and senate. The legislature represents the people of the state, and there are no limits upon the power which that body may exercise, except such as may be found in the constitution itself, or in the federal constitution.
Nor do we see any merit in the contention that the penalties imposed in the act constitute cruel and unusual punishments, and are so excessive as to render it invalid.
The judgment is therefore reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
Appellant was convicted of a violation of the law relating to the inspection of cattle brought into the state from points beyond its south line. The information charged, among other things, that appellant brought cattle into the state from points- south of its south boundary without having caused them to be inspected and passed under a certificate of health by the live-stock sanitary commission of the state, and that he did not have any inspection of them. This pleading was attacked by a motion to quash and by a motion in arrest of judgment, on the ground that there is no longer any live-stock sanitary commission in this state, the body formerly existing under that name having been, superseded by a live-stock sanitary commissioner, and that the general statement of a want of any inspection is insufficient.
There is no substantial difference between a commission composed of a body of individuals having lawful warrant to perform certain acts and a commissioner having identical authority. Both terms are general characterizations without fixed legal signification, and import an office with prescribed duties. It is therefore very technical to say that the omission of the terminal syllable “er” marks a fatal distinction between a single person having power by himself and his subordinates to inspect cattle and issue health certificates and all other men. Instead of this it merely discloses a slightly imperfect description of a well-known state official. Of course an information must state the offense charged with accuracy, precision and certainty; but it may do . this in general terms. (The State v. Finley, 6 Kan. 366.) The question is, Could the accused have been misled? (The State v. McCord, 8 Kan. 232, 12 Am. Rep. 469.) Hence, if the defect noted were serious,- the general negative of any inspection whatever fairly apprised appellant of the charge he was required to meet. Although this allegation was probably inserted for the purpose of showing a want of inspection by an inspector as distinguished from the commissioner, it is broad, enough to cover all persons; and whenever a negative is to be expressed general terms covering the entire subject-matter will suffice. (1 Bishop’s New Crim. Proc. § 641.)
The action was instituted under section 27 of chapter 495, Laws of 1905, which reads as follows:
“It shall be unlawful fpr any person or persons to bring, drive or transport any cattle into any county of the state of Kansas, except for immediate slaughter, as provided in the preceding section, from any point south of the south line of Kansas, without having first caused such animal or animals to be inspected and passed under certificate of health by the live-stock sanitary commissioner of this state, or some inspector thereof, duly authorized by such commissioner, or by the bureau of animal industry of the interior department of the United States government; and any person or persons violating the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than fifty noj more than one thousand dollars, or by imprisonment in the county jail not less than thirty days nor more than one year, or by both such fine and imprisonment.”
It is said the law is void because it.prohibits bringing cattle into the state from below its south line at all seasons of the year, and whether they are diseased or not, unless inspected, and that the stock-owner is placed at the mercy of the live-stock sanitary commissioner, who has power to admit or exclude cattle as he may see fit. It is true that all cattle coming from the south must be inspected at all seasons of the year, but capricious conduct on the part of the live-stock sanitary commissioner is not contemplated. He has no discretion. He merely ascertains facts. If incoming cattle are healthy, he passes them. If they are diseased, he turns them- back. Inefficiency or abuse of power in the administration of quarantine laws cannot be presumed. Inspectors are to be credited with proper capacity and proper motives until a case to the contrary is presented. Such an instance, if one should arise, would disclose conduct outside the purview of the offending individual’s legal authority and could not be charged to the' law itself. All human laws must be executed by fallible men, but such laws are not on that account unrighteous.
The only question, then, is if the statute imposes an unreasonable restriction upon interstate commerce, the territory lying south of the south line of Kansas from which cattle may be brought into the state virtuálly being treated as an infected district. The prevalence of Boophilus bo vis, or Southern ticks, in the cattle country south of Kansas is a fact of common knowledge. The courts take judicial notice of it. (Grimes v. Eddy, 126 Mo. 168, 28 S. W. 756, 26 L. R. A. 638, 47 Am. St. Rep. 653.) Recent scientific investigation shows that animals coming from portions of that region, at least, are always likely to be capable of communicating what is' known as Texas, splenetic, or Spanish, fever. The liability of infection from animals coming from other parts is so great that it cannot be said the regulation is unnecessary to guard properly' against the danger to be apprehended.
There is so great a dissimilarity between this statute and the one under consideration in the case of State v. Duckworth, 5 Idaho, 642, 51 Pac. 456, 39 L. R. A. 365, 95 Am. St. Rep. 199, that the decision there made is not an authority. The prohibition upon importation is not absolute here, as in the case of Railroad Co. v. Husen, 95 U. S. 465, 24 L. Ed. 527. The discrimination between sections is based upon known conditions warranting it. The detention of cattle for inspection is not unduly burdensome. The cost of inspection is borne by the state itself. Cattle free from disease are passed under a certificate of health. Hence the statute is sustainable under the well-recognized power of the state to protect its live stock by reasonable inspection laws against the ravages of contagious and infectious diseases.
Some confusion between different provisions of the law relating to the general subject of live-stock sanitation and inspection is pointed out, but the section quoted above is not affected, and is sufficient to uphold the judgment of the district court.
Some minor questions are discussed. A reading of rule 13 of the interior department of the United States shows that it could not have contributed to the verdict rendered without connecting evidence not found in the record. Hence the error in admitting it was harmless. The proof of every element of the offense charged was ample. The reference by the county attorney to the absence from the case of a certificate of inspection was not a reference to the failure of the defendant to testify. The instructions given are not printed in the brief, as required by rule 10, and from what has been said it is apparent the instructions refused were rightfully refused.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
The appellant was convicted of selling intoxicating liquors in violation of law. He appeals to this court, and the only error of which he complains is the giving of an instruction. This instruction pertains to the duty of the jurors in weighing evidence in determining the. credibility of any particular witness. Some things are said in this instruction which, if taken independently of the accompanying language, would be objectionable, but which, when read with the other parts of the same instruction, and in connection with the general instruction upon the credibility of witnesses and the weight to be given to the evidence, and the province and duty of the jury in respect thereto, are harmless. In determining the meaning and effect of any particular instruction, it should be considered in its entirety, and read in connection with all other related instructions. When thus interpreted the instruction objected to was not prejudicial.
The judgment is affirmed. | [
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Per Curiam:
Mary A. White recovered a judgment against the city of Emporia for personal injuries sustained by being thrown from her buggy while driving on one of its streets. She alleged that while driving along one of the streets in the city her horse came in contact with one of the city’s electric wires which had become displaced and was on the ground, and that the horse became frightened and ran against a telephone-pole, throwing her out of the buggy. The court denied the city’s motion for a new trial on account of newly discovered evidence. This order the city now seeks to-reverse.
The evidence introduced in support of the motion for a new trial was in the form of affidavits made by two young men, who swore that they were present at the time Mrs. White was thrown from the buggy. The affidavits tend to establish three propositions: (1) That the horse driven by Mrs. White became frightened by a dog and was running away when it came in contact with the electric wire; (2) that the wire was not down on the street but on a vacant lot; (8) that the wire was not down at four o’clock P. M. of the evening when Mrs. White received her injury.
Whether the wire was down in the street, and whether the city had actual notice of this fact or the wire had been down a sufficient length of time to charge it with notice, were disputed questions / of fact on the trial, and both parties offered evidence tending to support their respective contentions. Therefore, the affidavits relating to these questions were cumulative.
The only remaining contention supported by the affidavits was that the horse driven by Mrs. White became frightened by a dog and was running away when it came in contact with the wire. If without fault on the part of the plaintiff her horse had been so frightened by a dog that it was beyond her control, and ran into an electric wire that the city had negligently permitted to lie on the ground, this would furnish no ground for a new trial. If the city is guilty of negligence in permitting one of its electric wires to lie on the ground it is liable to a traveler who without fault of his comes in contact with it and sustains injury thereby. (Street Rly. Co. v. Stone, 54 Kan. 83, 37 Pac. 1012; City of Topeka v. Hempstead, 58 Kan. 328, 49 Pac. 87.)
The order denying the new trial is affirmed. | [
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Per Curiam:
The only question presented in this case is that the verdict is not sustained by the evidence. No objections are made to the admission or rejection of evidence and none to the instructions given to the jury.
This court cannot weigh or reconcile evidence. The conclusion reached by the jury was reasonable and fully justified by the testimony given. There is nothing to indicate mistake, passion, or prejudice. The judgment is affirmed. | [
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The opinion of the court was delivered" by
Graves, J.:
This is a;n action in ejectment, brought by a tax-deed holder against the owner in possession. The tax deed is dated September 3, 1899, was recorded October 23, 1899, and this action was commenced October 19, 1901.
The land was subject to taxation for the years 1894, 1896, 1897, 1898, 1899, and 1900. The amount of tax levied against the land in controversy for each of these years was in excess of the levy authorized by law. The owner of the land, during the month of December in each of these years, tendered to the county treasurer the full amount of tax legally assessed against the land for that year. The tender was refused for the reason that the treasurer was not authorized to receive less than the whole tax charged against the property.
At the tax sale of 1895 the land was sold for the tax of 1894, and for want of other bidders was bid in by the treasurer for the county. On September 12, 1896, the plaintiff took an assignment of the certificate from the county, arid afterward paid the tax levied against the land for the years 1896 and 1897. The land was again sold for the tax of 1898, and the tax of 1899 was charged to that sale. On June 20, 1900, the plaintiff redeemed the land from the last-mentioned sale, and afterward paid the tax of 1900. September 3, 1899, the date of the execution of the tax deed, was Sunday.
The owner of the land insists: (1) That his tender of the full amount of legal tax each year discharged the tax lien, and made any sale of the land for such taxes void; (2) that the tax deed, having been executed and acknowledged on Sunday,.is void ab initio, and of no more effect than if no attempt had been made to ■convey the land; that more than four years have passed since the land was sold, and, therefore, the tax lien is lost, under the provisions of section 7715 of the General Statutes of 1901, being what is commonly known as the floating-lien law.
The plaintiff concedes that the tax deed is invalid as a conveyance, but insists that the tax lien has been preserved.
Tax proceedings are necessarily committed to the charge of officers, who occasionally make mistakes and sometimes misconceive the extent of their powers. It is the policy of the law, however, to collect all taxes legally imposed, and, in furtherance of this policy, the irregularities and omissions of tax officers will be disregarded whenever it is reasonably possible to do so. When by mistake an excessive tax is levied upon real estate, so much thereof as may be valid becomes a permanent lien on the land until released by payment or ■by operation of law. To preserve the security given by this lien the legislature enacted section 7615 of the General Statutes of 1901, a part of which reads:
“A lien for all taxes shall attach to the real property subject to the same on the 1st day of November in the year in which such tax is levied, and such lien shall continue until such taxes and penalty, charges and interest which may have accrued thereon shall be paid by the owner of the property or other person liable to pay the same.”
It follows that the valid part of the taxes in question became a lien on the real estate in controversy, and we are unable to see how or when it has become satisfied or released. We do not understand that a tender in such cases is equivalent to actual payment. When a landowner finds an excessive tax levied against his land he must either acquiesce in the imposition and pay it or resort to some tribunal having power under the law to give the relief desired. The county treasurer is not such a tribunal. The duty of that officer is to receive the tax charged against the property. He has no authority to determine the validity of any tax, nor to receive in satisfaction of the amount levied less than the whole thereof. A tender to the county treasurer of a part of the tax levied against real estate, made by the owner of the land for the purpose of thereby satisfying the tax or of releasing the lien, is an idle ceremony, having no legal significance. Tender to the county treasurer of a part only of a tax is useful only when made as one of the preliminary steps to a legal proceeding before some tribunal legally authorized and empowered to grant relief.
There are several remedies open to the owner of land under the circumstances above mentioned, among which are these: He may tender the valid portion of the tax and then perpetually enjoin the collection of the excess. He may wait until a tax purchaser attempts to enforce his tax deed and then have the court determine what part of the tax is valid, and pay it.
' As a further security to the public section 142 of the tax law, being section 7681 of the General Statutes of 1901, provides:
“If the holder of a tax deed or any one claiming under him by virtue of such tax deed be defeated in an action by or against him for the recovery of the land sold, the successful claimant shall be' adjudged to pay to the holder of the tax deed, or the' party claiming under him by virtue of such deed, before such claimant shall be let into possession; the full amount of all taxes paid on such lands, with all interest and cost as allowed by law up to the date of said tax deed, including the cost of such deed and the recording of the same, with interest on such amount at the rate of twelve per cent, per annum, and the further amount of taxes after the date of such deed, and interest thereon at the rate of twelve per cent, per annum.”
We dp not think that the tender made by the defendant in this case affected the tax lien as to the valid part of the tax levied against the land. The fact that the tax deed was executed and acknowledged on Sunday may render the deed void as an instrument of conveyance, but the lien for the tax remains as it was prior to the date of the deed. We do not agree with the contention that the lien for taxes is lost because of this ineffectual attempt to make a valid deed, by reason of the provisions of section 7715 of the General Statutes of 1901, which reads:
“When any real estate is or has been bid off for delinquent taxes to cities or counties and the tax certificates assigned, the lien thereof shall not be valid without a' tax deed taken thereon after the expiration of four years from the date of such sale to the city or county where such assignment is made, more than one year prior to the expiration' of three years from the sale.”
This statute does not require that the deed provided for shall be a valid conveyance. Its manifest object was to prevent tax purchasers from holding táx certificates indefinitely. We do not think that a mistake in attempting to comply with this law destroys the tax lien. We think that the attempt on the part of the tax purchaser to comply with this law by applying for a deed within the time prescribed saved his tax lien. He did all that he could to preserve his rights as a tax purchaser, and the mere fact that the officers omitted to execute the deed as of the proper date should not work injury .to him. To prevent such a result section 7678 of the General Statutes of 1901 was enacted. It reads:
“No irregularity in the assessment roll nor omission from the same, nor mere irregularities of any kind in any of the proceedings, shall invalidate any such proceeding or the title conveyed by the tax deed; nor shall any failure of any officer or officers to perform the duties assigned him or them upon the day specified work an invalidation of any such proceedings or of said deed.”
Upon the whole case we conclude that the plaintiff has a tax lien for the valid portion of the taxes assessed against the land, together with interest and costs thereon as provided by law.
The case having been tried by the district court without a jury, and findings of fact and conclusions of law having been filed, we can determine the final disposition of the case. The judgment of the district court is reversed, with direction to enter judgment in favor of the plaintiff for $338.80, with interest thereon from April 15, 1905, at the rate of six per cent, per annum, and decree the same to be a lien on the land in controversy, and, in case of failure to pay the same within thirty days, that the land be sold according to law; also, that a personal judgment be entered against defendant for costs of suit.
All the Justices concurring. | [
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Rees, J.:
Defendant John Griblin appeals from his jury conviction of voluntary manslaughter, a class C felony (K.S.A. 21-3403). We reverse.
We conclude that resolution of one of the nine issues raised by defendant is dispositive of this appeal. Accordingly, we will address that issue only.
Defendant was tried on a charge of second-degree murder, a class B felony (K.S.A. 21-3402). The jury was instructed on the elements of second-degree murder, voluntary manslaughter as an included lesser degree crime (K.S.A. 1987 Supp. 21-3107[2][a], [3]), and self-defense justification (K.S.A. 21-3211). Defendant complains that the trial court erred in failing to instruct on involuntary manslaughter, a class D felony (K.S.A. 1987 Supp. 21-3404) as an included lesser degree crime. We agree.
K.S.A. 1987 Supp. 21-3107 provides;
“(2) ... An included crime may be any of the following:
“(a) A lesser degree of the same crime;
“(3) In cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information . . . and upon the evidence adduced.”
State v. Gregory, 218 Kan. 180, 542 P.2d 1051 (1975), a case in which the defendant was tried on a second-degree murder charge and convicted of involuntary manslaughter, establishes that involuntary manslaughter, as a lesser degree of the generic crime of homicide, is a lesser degree of homicide than murder, and for the purposes of K.S.A. 1987 Supp. 21-3107(2)(a) is a “lesser degree of the same crime.” 218 Kan. at 181-83. “Therefore, in a murder prosecution, an instruction on manslaughter is not only proper but required if justified by the evidence.” 218 Kan. at 183. See K.S.A. 1987 Supp. 21-3107(3); State v. Scobee, 242 Kan. 421, 748 P.2d 862 (1988).
Paraphrasing the statutory definition of involuntary manslaughter (K.S.A. 1987 Supp. 21-3404) as it may apply to this case, it requires an unintentional killing without malice that occurred while the defendant was performing some lawful (i.e., not criminal) act in a manner which was unlawful. See State v. Gregory, 218 Kan. at 183.
Thus, in the case before us, we confront the question whether the evidence “justified” submission of involuntary manslaughter to the jury. Conversely stated, “an instruction on an included offense is not proper if from the evidence the jury could not reasonably convict of the lesser offense.” 218 Kan. at 183.
We are persuaded that upon the evidence adduced, the jury could have reasonably found that Hughes was an aggressor, that is, that Griblin was in fact attacked. From this, the jury would necessarily find that by operation of the self-defense statute (K.S.A. 21-3211), Griblin was entitled to defend himself and, in doing so, he was engaged in a “lawful act.” Gregory, 218 Kan. at 185. (Scobee, 242 Kan. at 428, holds that when confronted by an aggressor, one may “stand his ground” and need not retreat.)
Applying its language to this case, we find it said in Gregory, 218 Kan. at 185-86:
“[T]he statute and our cases recognize that in repelling an attack one is limited to ‘that force which reasonably appears to be necessary for that purpose.’ [Citations omitted.] If the jury had found the deadly force employed by [Griblin] was ‘reasonably necessary’ to repel [Hughes’] attack, it .would have acquitted him. But if it found that force was excessive what could its verdict be? If it found no malice, it could not convict of murder. If it [found] that he did not intend to kill, it could not convict of voluntary manslaughter. Yet the use of excessive force eliminated the statutory justification for the homicide and made it unlawful. . . . We think the jury could conclude on the facts of this case that [Griblin] had a right of self- defense, and his exercise of that right was a lawful act. It could also find, however, that shooting [at Hughes repeatedly] was not reasonably necessary .... This use of excessive force could be found to be an ‘unlawful planner’ of committing the lawful act of self-defense, and thus supply that requisite element of involuntary manslaughter.”
Within the evidence presented at the trial of this case, there was testimony describing the physical circumstances found at the scene after the shooting, testimony reporting out-of-court statements by Griblin, and Griblin’s own testimony. We are convinced that on the evidence adduced a jury could find that Griblin unintentionally killed Hughes while performing the lawful act of self-defense in an unlawful manner, that is, by using “excessive force.”
According to Griblin’s trial testimony version of the events, when he saw Hughes approaching he feared that Hughes would ram his car so he stopped and got out. He had a hand gun. Hughes skidded to a stop, got out of his car, and pointed a gun at Griblin. Faced with that turn of events, Griblin shot at Hughes, who got back into his car, put it in reverse and, at high speed, backed into a ditch and collided with a utility pole. Hughes then partially exited his car three, four, or five times, pointing his gun at Griblin, and on each occasion Griblin fired at or toward Hughes. The activity concluded when Hughes did not once again step out of his car. He was found on the front seat, fatally wounded. Griblin immediately summoned law enforcement officers and medical assistance.
We conclude that on the evidence presented in this case, the trial court erred in failing to instruct on involuntary manslaughter as an included lesser degree crime. We need not and do not now hold that in every case tried on a homicide charge other than involuntary manslaughter where the defense of self-defense is submitted to the jury it is necessary that the jury be instructed on involuntary manslaughter.
Reversed and remanded for new trial. | [
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Six, J.:
Defendant-appellant Curtis Washington appeals his conviction of two counts of forgery, K.S.A. 21-3710(l)(a) and (b).
Washington contends that the State failed to prosecute him within the legal time limits required by K.S.A. 21-3106. We agree and reverse the trial court.
The issue before this court is whether the delay of thirty and one-half months (March 5, 1984, to September 21, 1986) in executing the warrant was unreasonable. We hold that it was. Consequently, Washington’s prosecution was not commenced within two years after the crime was committed.
Washington fraudulently endorsed and cashed a $338 welfare check using the name “Frederic” Dempsey on November 7, 1983. The check was originally issued to Washington’s stepsister, Frederica Dempsey. Dempsey did not give Washington permission to cash the check. Washington was tried at a bench trial on an agreed statement of facts.
The following facts, although not in the agreed statement, are not in dispute. A complaint was filed and a warrant issued on March 5, 1984. Sedgwick County Warrant Officer Lonnie Smith repeatedly tried to serve the warrant, although he could not remember the exact dates of his attempts. Smith testified he made his first search for Washington on the basis of a warrant information card. The card contained the charges filed, Washington’s name, and the address of 1725 North Kansas where Washington could be served. Smith guessed that he tried to serve the warrant in April and May of 1984. Smith stated that he spoke with Washington’s brother and sister-in-law the first time he visited the apartment. They informed Smith that the defendant no longer lived there and permitted Smith to search the apartment. The second and third attempts at the same address also included apartment searches. The use of a computer to trace Washington’s name was also unsuccessful. Smith then tried a fourth time at 1725 North Kansas and was told that the defendant’s relatives had moved out. On September 21, 1986, Smith served the warrant on Washington in the county jail. Officer Smith was able to book Washington on the present case because another warrant officer had located Washington at a different address listed on a warrant information sheet prepared for a new criminal matter. At that time, Washington’s address was listed as 1917 North Piatt.
Smith did not verify the correctness of the address listed on the initial information card. There was no independent investigation other than the computer search.
Washington moved to dismiss because of the State’s failure to commence prosecution within two years after the crime was committed. K.S.A. 21-3106. The motion was denied. The trial court convicted Washington on both counts.
K.S.A. 21-3106 provided, at the time the forgery was committed:
“(2) Except as otherwise provided in this section, a prosecution for all other crimes must be commenced within two (2) years after it is committed.
“(4) . . . Time starts to run on the day after the offense is committed.
“(5) A prosecution is commenced when a complaint or information is filed, or an indictment returned, and a warrant thereon is delivered to the sheriff or other officer for execution: Provided, That no such prosecution shall be deemed to have been commenced if the warrant so issued is not executed without unreasonable delay.” (Emphasis added.)
We note that this statute has been redesignated and reworded since Washington committed the forgery; however, these changes have not effected a material change in the meaning of the statute. K.S.A. 1987 Supp. 21-3106(6).
A prosecution for forgery, K.S.A. 21-3710(l)(a) and (b), not commenced within two years after the offense is committed, is barred by the statute of limitations. K.S.A. 21-3106(2). Washington argues that the warrant was executed after an unreasonable delay, and therefore the prosecution is barred by the statute of limitations. K.S.A. 21-3106(2) and (5).
No claim is made by the State that any delay in executing the warrant is excused by either Washington’s absence from the state or his concealment within the state. K.S.A. 21-3106(3).
No recent Kansas cases have addressed the “unreasonable delay” issue. In re Clyne, Petitioner, 52 Kan. 441, 35 Pac. 23 (1893), held that where the sheriff, at the direction of the county attorney, held a warrant for five months beyond the statutory period of limitation without serving the same on the defendant, the delay was unreasonable. The defendant in Clyne was present in the county the entire time after the warrant was issued. He was frequently seen by the sheriff, and could have been arrested any day. The court concluded that the time of the unnecessary delay in serving the warrant should be computed as part of the period of limitation.
The court in Clyne stated, “[T]he officer must proceed to execute [the warrant] according to its command; that he must make the arrest within a reasonable time and at the first reasonable opportunity offered him.” 52 Kan. at 448.
Clyne was cited in State v. Bowman, 106 Kan. 430, 434, 188 Pac. 242 (1920). The court in Bowman noted:
“A criminal prosecution is commenced when a warrant on which the defendant is arrested is duly issued in good faith and delivered to the sheriff for service. This is true, although there may be subsequent unnecessary delay in executing the writ, but the time such delay continues is included in computing the period of limitation.” 106 Kan. 430, Syl. ¶ 5.
K.S.A. 21-3106 was enacted in 1969. L. 1969, ch. 180, § 21- 3106. The Judicial Council 1968 Comments on the Kansas Criminal Code state that K.S.A. 21-3106(5) is a restatement of Kansas law. “While the statute does not expressly so provide, the Supreme Court has held that a period of unreasonable delay in serving the warrant must be computed in determining if the prosecution is barred.”
The trial judge, in considering Washington’s motion to dismiss, (1) noted that the resolution of the issue turned on whether the delay in obtaining service of the warrant was reasonable, and (2) specifically found “from the totality of the circumstances that this warrant has been executed without unreasonable delay . . . .”
We hold that if the delay in executing a warrant is unreasonable, such delay shall be included in computing the period within which a prosecution must be commenced.
No dispute as to any material fact is contained in either the parties’ briefs or in the record.
The record indicates that Officer Smith made four attempts to serve the warrant within two months following its issue. He also searched the apartment. He knocked on doors near the apartment but no one answered. He submitted Washington’s name to a computer search but did not receive any new information. When Washington was arrested on another charge, Officer Smith immediately served the warrant.
The record also shows that no attempt was made to serve the warrant for twenty-eight months (from May of 1984 to September of 1986). Under the facts of this case, a time period of twenty-eight months in which no attempt is made to execute the warrant cannot be termed a “reasonable” delay. Therefore, the prosecution was not commenced within two years after the offense was committed and is barred by the statute of limitations. K.S.A. 21-3106(2).
The judgment of the trial court is reversed. Washington’s convictions for forgery are set aside. | [
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Briscoe, J.:
This is an appeal from a probate case in which the district court ruled the proceeds of decedent’s savings accounts passed to appellees, Mary Moore and Ronnie Moore, as beneficiaries of a Totten trust. Appellants, the residuary legatees of decedent’s will, contend appellees should not receive these proceeds because, under the facts of this case, no valid trust was created. Appellants also contend appellees cannot receive as testamentary devisees. In support of this contention, appellants argue the signature cards upon which appellees rely do not comply with the Statute of Wills or fall within K.S.A. 1986 Supp. 17-5828, the “payable upon death” exception to the Statute of Wills. We agree with appellants and reverse the district court.
While living, decedent Nona Morton deposited money into two savings accounts at Franklin Savings Association. Both signature cards were signed by Nona Morton and were titled “Discretionary Revocable Trust Agreement.” The signature cards named Nona Morton as both grantor and trustee and Mary Moore and Ronnie Moore as beneficiaries. Under the terms of the accounts as provided by the signature cards, Nona Morton retained the power to revoke the accounts in full or in part. Upon Nona Morton’s death, the proceeds remaining in the accounts were made payable to the named beneficiaries. Over a period of time, Nona Morton transferred the original two accounts to new accounts and, later, her conservator, in order to obtain higher interest rates, transferred the moneys to additional accounts which also included certificates of deposit. The signature card forms of the accounts remained constant except on one occasion when the savings association used a different form. This was later corrected by Nona Morton’s conservator in order to preserve what he believed was Nona Morton’s original intent. During her life, Nona Morton, acting individually or through her conservator, retained control of the accounts. Only her moneys were deposited in the accounts, and interest accumulated was transferred as needed to her checking account to meet her expenses or to make other distributions.
During the probate of Nona Morton’s estate, these accounts at Franklin Savings Association became the subject of dispute. Appellants, the residuary legatees of Nona Morton’s will, argued that the accounts were invalid Totten trusts and, therefore, the proceeds of the accounts remained property of the estate to be distributed under the residuary clause of Nona Morton’s will. Appellees Mary Moore and Ronnie Moore argued that the accounts were valid Totten trusts and the proceeds were payable to them, the named beneficiaries. The district court ruled for the appellees and stated the following in support of its conclusion that the accounts were valid Totten trusts under Kansas law:
“Kansas Courts have not ruled on the validity of‘Totten Trusts.’ However, in Gross v. Douglass State Bank, 261 F. Supp. 1002 (D. Kan. 1965), the United States District Court for the District of Kansas found a ‘Totten Trust’ to be valid. In Gross, the parents established trust accounts in a savings and loan for their three daughters’ education. The Court relied upon the decision in Shumway v. Shumway, 141 Kan. 835 (1935).
“Viewed from the standpoint of what is accomplished by a ‘Totten Trust’ it is easy to determine that the end result is the same as ‘Pay on Death’ accounts. In each instance, the depositor or settlor can withdraw any portion or all of the funds in the account. Also, in each instance it can be said that the benefit vests at the time the account is created. However, the amount of the benefit, i.e. the balance in the account, cannot be bestowed upon the named beneficiary until the death of the depositor or settlor. The two ‘smell the same’ but the language creating each is different. This is somewhat similar to ‘silent’ Calvin Coolidge’s will and today’s more elaborate method of saying the same and accomplishing the same result.
“In 1977, the Kansas Legislature legalized the use of‘Pay on Death’ accounts. (K.S.A. 9-1215.) This action made these accounts non testamentary and removed them from the Kansas Statute ofWills. Following the reasoning of the legislature as to these type of accounts and the decision of the United States District Court in Gross, I am of the opinion that ‘Totten Trusts’ are valid express trusts under Kansas law.”
Appellants argue on appeal that the district court erred in its conclusion that Totten trusts are valid in Kansas. On appeal, appellees “adjust” their position somewhat and argue that the district court’s result was correct, but its conclusion that the accounts were Totten trusts was erroneous. Appellees now maintain the accounts were in fact “payable on death” accounts, not Totten trusts. As a general rule, we do not consider issues on appeal which have not been first presented to the trial court. Board of Johnson County Comm’rs v. J.A. Peterson Co., 239 Kan. 112, 114, 716 P.2d 188 (1986). However, in this case we will address whether the accounts in question were valid “payable on death” accounts because the court inferentially considered this option in reaching its conclusion.
With that said, we reject appellees’ argument that the accounts were “payable on death” accounts rather than Totten trusts. A Totten trust is created when an individual deposits funds in a bank or savings account in trust for another. The depositor is named trustee and retains the power to revoke the trust and the right to use both principle and income. The trust beneficiary is entitled only to those funds remaining upon the depositor’s death. The term “Totten trust” is taken from the case of Matter of Totten, 179 N.Y. 112, 71 N.E. 748 (1904). Totten trusts are also known as savings account trusts or tentative trusts. See generally IA Scott on Trusts §§ 58-58.6 (4th ed. 1987); Bogert, Trusts & Trustees § 47 (2d ed. rev. 1984). Although the effect of a “payable on death” account is identical to that of a Totten trust, a “payable on death” account is based on contract rather than trust principles. In a “payable on death” account, the bank or savings institution, under the terms of its contract with the depositor, agrees to pay the proceeds remaining in the account to a named beneficiary upon the depositor’s death. The depositor retains complete control of the account during the depositor’s lifetime. Note, Will Substitutes in Kansas, 23 Washburn L.J. 132, 147 (1983). See K.S.A. 1986 Supp. 9-1215; K.S.A. 1986 Supp. 17-5828; Truax v. Southwestern College, 214 Kan. 873, 522 P.2d 412 (1974).
Appellees in the present case argue the accounts in question were “payable on death” accounts rather than Totten trusts because “payable on death” accounts are recognized by statute. K.S.A. 1986 Supp. 17-5828 provides:
“An individual adult or minor, hereinafter referred to as the owner, may enter into a written contract with any savings and loan association located in this state providing that the balance of the owner’s deposit account, or the balance of the owner’s legal share of a deposit account, at the time of death of the owner shall be made payable On the death of the owner to one or more persons or, if the persons predecease the owner, to another person or persons, hereafter referred to as the beneficiary or beneficiaries. If any beneficiary is a minor at the time the account, or any portion of the account, becomes payable to the beneficiary and the balance, or portion of the balance, exceeds the amount specified by K.S.A. 59-3003 and amendments thereto, the moneys shall be payable only to a conservator of the minor beneficiary.
“Transfers pursuant to this section shall not be considered testamentary or be invalidated due to nonconformity with the provisions of chapter 59 of the Kansas Statutes Annotated.
“Every contract authorized by this section shall be considered to contain a right on the part of the owner during the owner’s lifetime both to withdraw funds on deposit in the account in the manner provided in the contract, in whole or in part, as though no beneficiary has been named, and to change the designation of beneficiary. The interest of the beneficiary shall be considered not to vest until the death of the owner.
“No change in the designation of the beneficiary shall be valid unless executed in the form and manner prescribed by the savings and loan association and delivered to the savings and loan association prior to the death of the owner.
“For the purposes of this section, the balance of the owner’s deposit account or the balance of the owner’s legal share of a deposit account shall not be construed to include any portion of the account which under the law of joint tenancy is the property of another joint tenant of the account upon the death of the owner.
“As used in this section, ‘person’ means any individual, individual or corporate fiduciary or nonprofit religious or charitable organization as defined by K.S.A. 79-4701 and amendments thereto.”
A similar statute allows “payable on death” accounts to be established at banks. K.S.A. 1986 Supp. 9-1215. There is no evidence, however, to support a finding that the decedent in the present case intended to create “payable on death” accounts. The only evidence of decedent’s intent is contrary to the creation of “payable on death” accounts. The accounts were established using trust language, and at a time prior to the statutes recognizing “payable on death” accounts. All the surrounding facts and circumstances support the district court’s conclusion that the accounts were Totten trusts.
The real issue to be determined in this case is whether Totten trusts are valid in Kansas. This is an issue of first impression, although it has been the subject of considerable speculation. See Gross v. Douglass State Bank, 261 F. Supp. 1002 (D. Kan. 1965); Note, Will Substitutes in Kansas, 23 Washburn L.J. at 153-57; Comment, Trusts: Totten Trusts and the Viability of P.O.D. Dispositions as Nontestamentary, 14 Washburn L.J. 194 (1975); Comment, Totten Trusts in Kansas, 9 Kan. L. Rev. 46 (1960). After reviewing this and other commentary, we conclude that the Totten trusts in the present case are invalid.
First, Totten trusts fail to satisfy traditional trust principles. Under Kansas law, three elements are required to create an express trust: “an explicit declaration and intention to create a trust, definite property or subject matter of the trust, and the acceptance and handling of the subject matter by the trustee as a trust.” Shumway v. Shumway, 141 Kan. 835, Syl., 44 P.2d 247 (1935). Totten trusts are problematic in that there is usually no evidence, other than the language of the instrument, to establish trust intent. We have previously held that “trust intent cannot be resolved solely from a self-serving declaration in the trust instrument, but instead must be viewed and decided in light of all the attending facts and circumstances in the case.” Pizel v. Pizel, 7 Kan. App. 2d 388, 393-94, 643 P.2d 1094, rev. denied 231 Kan. 801 (1982). The facts and circumstances attending Nona Morton’s dealings with these accounts contradict her declaration of trust intent on the signature cards. Decedent did not deal with the subject property to the benefit of the named beneficiaries. Instead, she or her conservator always controlled the movement of moneys into and out of the accounts, and always treated the accounts as her own to be used for her needs and benefit. Jurisdictions which permit Totten trusts have been required to modify traditional trust principles to permit intent to be inferred from the mere language of the instrument. See, e.g., Blair, Exec. v. Haas, 215 Md. 105, 137 A.2d 145 (1957); Malley v. Malley, 69 R.1. 407, 34 A.2d 761 (1943); Tyree v. Ortiz, 127 Vt. 177, 243 A.2d 774 (1968). See Bogert, Trusts & Trustees § 47.
Even if we were to permit trust intent to be inferred, there still appears to be an absence of an actual trust relationship. By retaining both the power to revoke the trust and the power to use both principle and income, the trust relationship appears illusory and creates the opportunity for fraud. See Herd v. Chambers, 158 Kan. 614, 149 P.2d 583 (1944); Comment, Validity of Revocable Trusts in Kansas, 11 Kan. L. Rev. 375 (1963). Jurisdictions which approve Totten trusts have been required to also modify traditional trust principles in order to avoid this problem. See IA Scott on Trusts § 58.3; Bogert, Trusts & Trustees § 47. We note that retaining a power to revoke does not in itself invalidate a trust. See In re Estate of Morrison, 189 Kan. 704, 371 P.2d 171 (1962).
Second, in addition to their shortcomings in satisfying traditional trust principles, we conclude that Totten trusts violate the Kansas Statute of Wills if not executed with the required formalities. The Kansas Statute of Wills, K.S.A. 59-606, provides:
“Every will, except an oral will as provided in K.S.A. 59-608, shall be in writing, and signed at the end thereof by the party making the same, or by some other person in the presence and by the express direction of the testator and shall be attested and subscribed in the presence of such party by two or more competent witnesses, who saw the testator subscribe or heard the testator acknowledge the same.”
Since Totten trusts are testamentary in nature, instruments creating Totten trusts are required to be executed according to this statute. We base this conclusion on the case of Truax v. Southwestern College, 214 Kan. 873, which preceded the enact mentof K.S.A. 9-1215 and 17-5828. Under the facts of Truax, the accounts at issue bore only a “payable on death” notation. No trust language was present. The Kansas Supreme Court held in that case that “payable on death” accounts were testamentary and were required to be executed as provided by the Kansas Statute of Wills. In reaching this conclusion, the court stated:
“ ‘. . . [T]he transfer of a bank account, to take effect at the death of the depositor, who retains control during his life, is testamentary in character and void if not executed as a will, whether the intention of the depositor is to provide for a trust or to make a direct gift.’ ” 214 Kan. at 883.
Because Totten trusts and “payable on death” accounts have the same testamentary effect, we are compelled to follow the same rationale and require Totten trusts to also comply with the Statute of Wills.
The fact that the legislature created an exception to the Statute of Wills for “payable on death” accounts after the Truax decision does not validate the use of Totten trusts. If the legislature desires to allow Totten trusts, it must do so with a specific exception. Absent a legislatively created exception to the Statute of Wills to include Totten trusts, we cannot judicially legislate to expand the statutory exception for “payable on death” accounts to include Totten trusts. Although the policy reasons for the creation of such an exception are equally as strong as those urged for the adoption of an exception for the “payable on death” account, these urgings are more properly made to the legislature, not to the courts.
The Totten trusts in the present case were not witnessed as required by the Statute of Wills and were therefore invalid. The district court’s distribution of the proceeds of the accounts to the named beneficiaries was therefore in error and must be set aside.
Reversed and remanded to the district court with directions to distribute the proceeds of the accounts to appellants, the residuary legatees under Nona Morton’s will. | [
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Parks, J.:
The plaintiff, State of Kansas, initiated this action against GAF Corporation and several other defendants after a roof constructed on a building at the Kansas Neurological Institute (K.N.I.) was found to be defective. Prior to trial, all defendants except GAF settled with the State. The suit against GAF proceeded to jury trial on the State’s claims for breach of express warranty, negligence, and fraud. The jury returned a verdict for the plaintiff for $100,705.42 in actual damages and $1,000,000 punitive damages. GAF appeals.
In 1972, the plaintiff began planning the construction of a building at K.N.I. known as the Flint Hills Lodge (Lodge). The state architect in charge of the project specified the roof would consist of a structural concrete roof deck covered by a lightweight insulating concrete called Zonolite which was in turn covered by a built-up roof membrane manufactured by GAF. Zonolite is manufactured by W. R. Grace & Company (Grace) and the specifications prepared by both Grace and GAF regarding their respective roofing products indicate that the two substances may be used together over structural concrete.
The construction of the Lodge was undertaken with Lee & Bueltel Construction Company, Inc., acting as general contractor and Jack Rinehart, d/b/a Rinehart Roofing Co., winning the roofing subcontract. The roof was constructed according to the plans and the GAF membrane was applied in conformity with the manufacturer’s specifications. GAF made an on-site progress inspection of the built-up roof membrane on October 15, 1974, and the installation was completed on April 28, 1975. Following Rinehart’s application for a guarantee on the membrane, GAF made a final inspection on April 20, 1976, and issued its written guarantee on May 6. This guarantee provided that the roofing membrane and base flashing were guaranteed for ten years against leaks caused by various circumstances. GAF promised to make any necessary repairs free of charge with exclusions for leaks caused by structural failures in the base or insulation over which the GAF membrane was applied. The guarantee also included the proviso that the owner must give written notice of any leaks to GAF’s nearest district office within 30 days of discovery. The application for the guarantee executed by Rinehart included the following provision:
“In consideration of the Guarantee to be furnished by GAF on the GAF Built-Up Roof applied by the undersigned to the premises as described above, the undersigned roofing contractor agrees that in the event GAF, within a period of two (2) years from date of completion of the roof, is called upon to make any repairs under the Guarantee issued b'y GAF and which covers the above roof, the undersigned will, at its own expense, investigate any report of leaks, make all necessary repairs if repairs are required and directed by GAF, cut and repair as directed by GAF any blisters or buckles and if the trouble is not due to defects in the roof, the undersigned will use its best efforts to satisfy the owner to that effect.”
The roof began leaking shortly after it was completed but, throughout 1975 and 1976, all leaks were reported directly to Rinehart. Rinehart responded by making repairs free of charge on five or six occasions. GAF received written notice of the leaking in February 1977 and, at GAF’s request, Rinehart completed additional repairs. The problems of the leaky roof continued unabated so that water literally poured into the Lodge, causing extensive interior damage and considerable inconvenience. By the latter part of 1977, Rinehart concluded that the roof could not be repaired and would have to be replaced. Various GAF personnel inspected the roof and, after observing cracks in the Zonolite substrate coinciding with the leaks in the membrane, concluded the leaks were not caused by a defect in the membrane and, thus, were not covered by the guarantee. GAF refused to accept responsibility for the leaky roof and the plaintiff decided a new roof would have to be constructed.
Vincent Roofing Co. contracted to make temporary repairs and ultimately to construct a new roof for the Lodge. Plaintiff claimed the following damages as a result of the leaking and repair:
Emergency Roof Repairs $ 6,265.92
Architects’ Fees for Reroofing 3,669.50
Reroofing 109,600.00
Interior Damage 20,000.00
TOTAL $139,535.42
Plaintiff filed suit against all parties connected with the roof construction including GAF, Grace, Lee & Bueltel Construction, and Jack Rinehart, since there was considerable controversy over the cause of the roof failure. However, in February 1984, plaintiff took the deposition of William Barnett, a retired GAF employee. Barnett’s testimony indicated that GAF had been concerned since 1974 with the high rate of failure among roofs in which the GAF membrane was used over Zonolite. Barnett stated that the GAF personnel responsible for drafting the specifications controlling the use of the GAF membrane became convinced in the mid-70’s that the membrane should not be used over lightweight concrete decks and consequently scaled back to minimal the specifications detailing the manner of using the GAF product in such a fashion. Barnett testified that protests from Grace concerning this abandonment of their product caused GAF to reinsert endorsing provisions in the GAF specifications in fear of a lawsuit by Grace.
After filing a motion to amend its petition to state a cause of action for fraud against GAF based on the deposition testimony of Barnett, plaintiff reached settlement with all of the other defendants. The amended petition was permitted and the trial proceeded with GAF as the only defendant. GAF basically denied any responsibility for the faulty roof, contending that leaks in its membrane were caused by cracks in the Zonolite which were in turn caused by excessive moisture in the Zonolite. GAF sought to shift blame principally to Grace contending Grace knew that use of its product over structural concrete did not allow sufficient venting to permit the Zonolite to dry. Defendant denied any fraud by its actions and contended that it was not until 1977 that the GAF personnel responsible for specifications decided the use of the GAF membrane over Zonolite should be severely restricted. Plaintiff relied on the testimony of Barnett concerning the state of GAF’s knowledge. Plaintiff also presented expert testimony that the leaks in the Lodge roof were caused by the low tensile strength of the GAF membrane and were unconnected to the cracks in the Zonolite.
The jury returned a verdict on special questions finding defendant guilty of breach of its express warranty, negligence, and fraud. The jury concluded defendant was 70% at fault for the damages sustained by plaintiff and found total damages of $100,705.42. Since the jury also found defendant’s conduct to have been fraudulent, it concluded plaintiff was entitled to punitive damages of $1 million. Defendant challenges various facets of the resulting judgment.
The two instructions given by the trial court on fraud were taken from PIK Civ. 2d 14.40 and 14.42. Instruction No. 4 (14.40) states the elements of active fraud or misrepresentation while Instruction No. 5 (14.42) describes fraudulent concealment as follows:
Instruction No. 4
“The essential elements required to sustain an action for fraud are:
1. That false (or untrue) representations were made as a statement of existing and material fact.
2. That the representations were known to be false (or untrue) by the party making them, or were recklessly made without knowledge concerning them.
3. That the representations were intentionally made for the purpose of inducing another party to act upon them.
4. That the other party reasonably relied and acted upon the representations made.
5. That the other party sustained damage by relying upon them.
A representation is material when it relates to some matter that is so substantial as to influence the party to whom it was made.”
and
Instruction No. 5
“The plaintiff claims fraud through silence on the part of the defendant. To constitute fraud by silence the plaintiff must prove:
1. The defendant has knowledge which plaintiff did not have and which the plaintiff could not have discovered by the exercise of reasonable diligence;
2. The defendant was under an obligation to communicate the true state of facts to the plaintiff;
3. The defendant intentionally failed to communicate to plaintiff the true state of facts;
4. The plaintiff relied upon the defendant to communicate the true state of facts to him; and
5. The plaintiff sustained damages as a result of the defendant’s failure to communicate this to the plaintiff.”
During deliberations, the jury asked the following question: “In order to find fraud by silence do all five items on page 4 and all items on page 5 need to be present[?]” The court responded in writing, after hearing the objections of defendant, as follows:
“In order to find fraud by silence, all five items in Instruction No. 5 must be proved. Instruction No. 4 is not applicable to fraud by silence.”
Defendant objected to this answer, contending that Instruction No. 5 failed to independently state all of the elements of fraud because it failed to require the jury to find defendant’s superior knowledge related to a material fact or to require reasonable reliance by the plaintiff. Defendant argued, and now claims on appeal, that when Instructions 4 and 5 were given together, this defect in 5 was remedied by 4, but if Instruction 5 were to stand alone, it would not include all of the necessary elements of fraudulent concealment. Plaintiff contends that defendant waived any defect in Instruction No. 5 because it did not object to it on the ground now raised.
In order for silence regarding a defect to constitute fraud, the seller must have knowledge of a material defect that is not within the fair and reasonable reach of the buyer and which is not discoverable by reasonable diligence. Green v. Geer, 239 Kan. 305, 308, 720 P.2d 656 (1986). The PIK instruction fails to characterize the knowledge undisclosed by the defendant as knowledge of a material fact or defect although the element of materiality has prominently figured in several recent cases. Lynn v. Taylor, 7 Kan. App. 2d 369, 371-72, 642 P.2d 131, rev. denied 231 Kan. 801 (1982); Sippy v. Cristich, 4 Kan. App. 2d 511, 516-17, 609 P.2d 204 (1980). In addition, the instruction given by the court simply requires the plaintiff to prove he relied upon the defendant to communicate the true facts without additionally requiring proof that this reliance was reasonable. Thus, the instruction dictates the use of a subjective standard in assessing the plaintiff s state of mind when an objective standard is called for by the case law on fraud. For example, in Goff v. American Savings Association, 1 Kan. App. 2d 75, 561 P.2d 897 (1977), the court held that fraud cannot be predicated upon what as a matter of law amounts to an expression of opinion and which cannot reasonably be understood to be anything else. The court also said, in an action for fraud, the plaintiff may not reasonably rely on an alleged fraudulent statement where the plaintiff has knowledge of facts which would serve as a danger signal to any normal person of equal intelligence and experience. Goff 1 Kan. App. 2d 75, Syl. ¶¶ 2 and 3. Since the fraud committed by a failure to disclose is still fraud, the element of reasonable reliance on the information supplied by the defendant is a critical element. See Sippy, 4 Kan. App. 2d at 514-15.
PIK Civ. 2d 14.42 (1986 Supp.) is also problematic because it directs the jury to consider whether the plaintiff has proven the defendant was under an obligation to disclose the true state of the facts without any guidance when such an obligation exists. In Sippy, 4 Kan. App. 2d at 516, the court cited the rule defining the scope of this obligation as follows:
“[I]f one party to a contract or transaction has superior knowledge, or knowledge which is not within the fair and reasonable reach of the other party and which he could not discover by the exercise of reasonable diligence, or means of knowledge which are not open to both parties alike, he is under a legal obligation to speak . . . .” See Jenkins v. McCormick, 184 Kan. 842,844-45,339 P.2d 8 (1959).
The PIK instruction states the defendant must have knowledge which the plaintiff did not have and could not have discovered with the exercise of reasonable diligence, but the instruction does not tie this superior knowledge to the obligation to speak.
Defendant contends the instruction is also flawed because it fails to indicate that the knowledge possessed by the defendant must be actual knowledge. However, while actual knowledge is an element of fraudulent concealment, the requirement that the defendant intentionally fails to disclose that knowledge implies the knowledge must be actual. If knowledge is only constructive, it cannot be intentionally concealed or undisclosed.
The elements missing from PIK Civ. 2d 14.42 were actually supplied to the jury in this case because the court also gave PIK Civ. 2d 14.40. However, when in response to the jury’s question the court instructed the jury to consider only the contents of Instruction No. 5 to find fraud by silence, the benefit of the general fraud instruction was lost. The definition of “material” and the requirement of reasonable reliance included in Instruction No."4 were not available to redeem the flaws in Instruction No. 5. Indeed, the contrast between the two instructions and the instruction to the jury not to consider No. 4 may well have intensified the impact of the absence of the elements from No. 5.
While it appears PIK Civ. 2d 14.42 (1986 Supp.) was intended to stand on its own to define fraudulent concealment or nondisclosure (PIK Civ. 2d 14.42 [1986 Supp.], Notes on Use), we hold that the instruction is incomplete and the trial court’s instruction to the jury to consider only the elements listed in Instruction No. 5 in considering the fraud claim constitutes prejudicial error. Because of the error in this instruction, we conclude that the defendant is entitled to a new trial on the issue of fraud. In view of this conclusion, we need not consider defendant’s challenges to the propriety and amount of the punitive damage award which was premised on the finding of fraud. However, we will consider the argument that the court erred in refusing to grant its motion to dismiss plaintiff s fraud claim as being barred by the statute of limitations.
The trial court denied the motion to dismiss the fraud claim, concluding that the statute of limitations did not apply to the State. K.S.A. 60-521 describes the circumstances under which statutes of limitations apply to the State as follows:
“As to any cause of action accruing to the state, any political subdivision, or any other public body, which cause of action arises out of any proprietary function or activity, the limitations prescribed in this article shall apply to actions brought in the name or for the benefit of such public body in the same manner as to actions by private parties, except in (1) actions for the recovery of real property or any interest therein, or (2) actions to recover from any former officer or employee for his or her own wrongdoing or default in the performance of his or her duties.”
This court in State ex rel. Schneider v. McAfee, 2 Kan. App. 2d 274, 275, 578 P.2d 281, rev. denied 225 Kan. 845 (1978), held that since causes of action arising out of governmental functions are omitted from K.S.A. 60-521, statutes of limitation do not apply to such actions. This holding and the rule that statutes of limitations do not run against the State unless specifically provided by statute have been repeatedly relied upon by our appellate courts. Twin City Fire Ins. Co. v. Bell, 232 Kan. 813, 819, 658 P.2d 1038 (1983); State ex rel. Stephan v. Brotherhood Bank and Trust Co., 8 Kan. App. 2d 57, 61, 649 P.2d 419, rev. denied 232 Kan. 876 (1982); and U.S.D. No. 490 v. Celotex Corp., 6 Kan. App. 2d 346, 351, 629 P.2d 196, rev. denied 230 Kan. 819 (1981). Nevertheless, defendant contends the State is subject to statutes of limitations even when undertaking governmental functions because the law regarding immunity from limitations was historically intertwined with the law regarding tort immunity. Thus, defendant contends that when the Supreme Court abolished governmental immunity for negligent acts in Gorrell v. City of Parsons, 223 Kan. 645, 576 P.2d 616 (1978), the law regarding immunity from limitations was also altered. Defendant ignores the fact that McAfee was decided after Gorrell and that the Supreme Court denied the petition for review of McAfee even though Gorrell had been handed down just months earlier.
Defendant does not contend the fraud cause of action arose out of the State’s exercise of a nongovernmental or proprietary function. Indeed, defendant apparently concedes such an argument would be fruitless in light of the holding in the Celotex Corp. case. In that case, the court not only found the suit by a school district for fraud and breach of warranty in the installation of a roof on a high school to arise out of a governmental function, the court also rejected the Gorrell argument. Celotex Corp., 6 Kan. App. 2d at 351. Thus, defendant’s argument and reliance on Gorrell is meritless, and the court’s refusal to dismiss the fraud claim is correct.
Defendant also raises a number of questions concerning the propriety of the judgment on the warranty and negligence claims. It contends the court erred in permitting plaintiff to go to the jury on both its contract and negligence claims. As authority for this argument, defendant relies upon implied warranty cases which have held that a plaintiff seeking recovery for a breach of implied warranty may plead and proceed upon the theories of both contract and tort until the facts have been developed but must elect a definite theory before final submission to the trier of the facts. Oller v. Kincheloe’s, Inc., 235 Kan. 440, 447, 681 P.2d 630 (1984); Ware v. Christenberry, 7 Kan. App. 2d 1, Syl. ¶ 7, 637 P.2d 452 (1981). The reasoning behind these cases is that implied warranty is a hybrid cause of action which may sound in either contract or tort. While the defendant commits only one wrong by violating an implied warranty, this wrong may be characterized as either a violation of a legal or contractual duty which gives rise to only one recovery. The plaintiff is required to elect the theory upon which the jury is to consider the implied warranty violation to avoid confusion, particularly in fixing damages.
This case was not presented to the jury as an implied warranty case; rather, plaintiff claimed the defendant committed negligence in designing, manufacturing, and selling the GAF membrane used on the Lodge and also breached a contractual obligation by refusing to honor the terms of its express warranty and guarantee of free repair. In short, plaintiff alleged that defendant committed both a breach of legal duty and a breach of a contractual obligation and sought the appropriate remedy for each of these wrongs. Damages from each wrongful act might have overlapped and plaintiff would not be permitted to obtain duplicative awards. However, the means of preventing a duplicative damage award lies in the drafting of the verdict form or in the power of the court to enter a proper judgment on the verdict. The court did not err in permitting both the contract and the tort claims to go to the jury.
Defendant also contends the verdict form used by the court improperly allowed the jury to apply comparative fault to a contract claim. It contends that even if plaintiff was not required to elect between its claims, the verdict form should have required the jury to separately state the damages for the contract breach from those for the negligence.
When read in conjunction with the instructions, the verdict form was flawed. The trial court gave two instructions concern ing the calculation of damages but did not attempt to identify those damages available for a breach of warranty and those which could be awarded for negligence. Since the verdict form permitted the jury only to provide one total damage award without itemization, it could have permitted the jury to award damages for a breach of warranty which were appropriate only for the negligence claim. However, since the jury found defendant committed negligence as well as breach of the express warranty, the failure of the verdict form to separately designate the damages on each claim did not prejudice defendant. Plaintiff would not have been able to recover damages under each claim which were duplicative, and the format of the verdict form prohibited any such duplication. Therefore, under the circumstances of this case, the inadequacies in the verdict form were harmless.
After the presentation of plaintiff s case in chief, defendant moved to dismiss the claim for breach of express warranty on the grounds that plaintiff had failed to prove its satisfaction of a condition precedent to defendant’s obligation to perform under the terms of the guarantee. Defendant argued that since plaintiff failed to give written notice of the leaking to its district office within 30 days of the first problems, defendant never had the obligation to repair. The court denied the motion to dismiss and plaintiff defends the ruling, contending (1) defendant waived the issue by not raising it in the pretrial order; (2) the notice to Rinehart Roofing satisfied the requirement of the express warranty; and (3) if the claim was erroneously submitted to the jury, it was harmless error because defendant was found liable on the alternative negligence claim.
Assuming the court erred in denying the motion to dismiss the express warranty claim on the notice question, it does appear the error caused no prejudice to defendant. The jury found defendant was negligent in selling its product for use on the Lodge and assessed damages for that negligence. No separate damages were assessed on the alternative claim for breach of contract and any such damages would, in any event, appear to be duplicative of those already awarded. Therefore, consideration of the merits of this issue is unnecessary.
The portion of the judgment awarding actual damages on the negligence claim is affirmed. The finding of fraud and the portion of the judgment awarding punitive damages is reversed and the case remanded for a new trial on the fraud claim. | [
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Rees, J.:
Brett L. Rucas appeals from a summary adjudication of direct contempt and the sentence imposed. K.S.A. 20-1203. The underlying facts are relatively straightforward. Two issues are raised. One requires particular attention; its resolution obviates any need to address the other.
By a single count information, it was charged that Rucas and Jeffrey Rhea committed an aggravated robbery (K.S.A. 21-3427) on December 10, 1985.
On the morning of March 3, 1986, Rucas pleaded guilty to the charge; his sentencing was set for April 17, 1986, and a presentence investigation report was ordered.
Also on March 3, 1986, Rhea went to trial. At the end of the day, it was brought to the trial judge’s attention that the State intended to call Rucas to testify in its case in chief against Rhea and that upon assertion of entitlement to the Fifth Amendment privilege against self-incrimination Rucas wished to decline to testify in response to questioning by the State. Rucas’ counsel requested that the trial judge explain to his client the court’s contempt powers. In the presence of Rucas, Rhea, their counsel, and the prosecuting assistant district attorney, the trial judge responded to the request and, insofar as is now pertinent, had this to say:
“[W]hen a person has entered a plea of guilty to a charge, he gives up any Fifth Amendment rights he has as far as testimony as to that particular charge. . . .
“[Rucas] has no Fifth Amendment rights since he’s already pled guilty to this charge . . . .” (Emphasis added.)
Immediately upon the reconvening of court the following morning, Rucas was called to testify as a witness on behalf of the State and this transpired:
“Q. [PROSECUTOR]: I ask you to state your name.
“A. Rrett Rucas.
“Q. Mr. Rucas, I want to direct your attention to the date of December 10, 1985, and ask you whether or not you’re willing to testify regarding your actions and the actions of Jeffrey Rhea on that date?
“A. No, I’m not.
“Q. [I]f the judge were to order you that you cannot refuse to testify, are you still refusing to testify?
“A. Yes, I am.
“[PROSECUTOR]: You Honor . . . we . . . ask that the Court find Mr. Rucas guilty of contempt of court based on his refusal to testify ....
“. . . [0]nce you enter a plea of guilty to a crime even though you have not been sentenced, you no longer have a Fifth Amendment right to refuse to testify. And on that basis I would ask that you find him in contempt of court ....
“[RUCAS’ COUNSEL]: If I may address the court?
“THE COURT: Yes.
“[RUCAS’ COUNSEL]: . . . [T]here is legal authority that problems arise when attempts are made to compel testimony of individuals convicted but not sentenced .... Generally, those courts that have expressly considered the matter have held that the privilege protects one against use of compelled testimony in setting sentence and in use on a new trial, and therefore an individual may not be compelled to respond to questions until after sentencing and the time for appeal as of right has expired.
“State v. Tyson, 43 New Jersey 411, a 1964 case . . . says the privilege can be invoked before sentence is imposed.
“. . . [B]asically [Rucas] feels that he hasn’t been sentenced yet, that this information could be used in sentencing. It would be compelled testimony. He . . . feels that . . . there is a possibility sometime in the future there may be a motion to withdraw plea or something to that effect, and he feels that he still has the Fifth Amendment privilege not to be compelled to incriminate himself, and he wishes to assert that.
“THE COURT: . . . Fifth Amendment rights go down the rapids when you enter a plea of guilty.
“. . . [T]he court is going to order that you have no Fifth Amendment rights not to testify in this case ....
“THE COURT: Do you want to persist on your refusal, Mr. Rucas?
“MR. RUCAS: Yes, I do.
“THE COURT: All right. The court is going to find you in contempt of court. I’m going to sentence you to one year in the county jail.” (Emphasis added.)
As directed by K.S.A. 20-1203, judgment was entered of record by the filing of a journal entry memorializing the in-court proceedings in the following language:
“On this 4th day of March, 1986, this matter comes on for hearing during the jury trial of Jeffrey R. Rhea. . . .
“The State of Kansas calls Brett L. Rucas to testify. . . . Brett L. Rucas, refuses to testify. The Court makes the following findings:
“1. On March 3,1986, Brett L. Rucas entered a plea of guilty to an Aggravated Robbery committed on December 10,1985, at the Reveo Store in Wichita, Kansas.
“2. The testimony requested from [Rucas] by the State pertains to the Aggravated Robbery to which [Rucas] has plead guilty.
“3. [Rucas] has no Fifth Amendment or other right to refuse to testify in this case.
“The Court then orders [Rucas] to testify or be found in direct contempt of Court pursuant to K.S.A. 20-1203. [Rucas] refuses to testify.
“The Court after listening to arguments and statements of counsel including [Rucas’] argument that he has a Fifth Amendment Right to not testify, finds . . . Brett L. Rucas, in direct contempt of Court.
“The Court sentences . . . Brett L. Rucas, to serve one (1) year in the Sedgwick County Jail . . . .” (Emphasis added.)
As his first issue on appeal, Rucas argues that the Fifth Amendment privilege against compelled testimonial self-incrimination was available for his exercise and because of that the adjudication for direct contempt was erroneous. In addressing this issue, some initial observations merit mention.
The Fifth Amendment privilege protects an individual not only from incrimination compelled in prosecutions against himself, but also from incrimination compelled in any other proceeding. The privilege is not dependent upon the nature of the proceeding; it protects amere witness as fully as it does one who is a party defendant. Lefkowitz v. Turley, 414 U.S. 70, 77, 38 L. Ed. 2d 274, 94 S. Ct. 316 (1973); McCarthy v. Arndstein, 266 U.S. 34, 40, 69 L. Ed. 158, 45 S. Ct. 16 (1924). In the case before us, the privilege is claimed by Rucas as a witness (see K.S.A. 60-425), notas an accused (see K.S.A. 60-423[a]). This distinction is recognized in State v. Nott, 234 Kan. 34, 39-40, 669 P.2d 660 (1983). Further, because the issue at hand was raised in the trial court and is presented to us by the witness claimant of the privilege, not by the State or Rhea, the accused, State v. Anderson, 240 Kan. 695,732 P.2d 732 (1987), is distinguishable and not controlling.
At the foundation of Rucas’ direct contempt adjudication is the premise that he had no privilege against incrimination. Thus, first and foremost is the question whether Rucas had any incrimination privilege. We must reverse if he had some incrimination privilege for the reason that no trial court determination has been made that if he had the privilege its reach or scope was exceeded or its assertion was not justified. See Hoffman v. United States, 341 U.S. 479, 486-87, 95 L. Ed. 1118, 71 S. Ct. 814 (1951); State v. McQueen & Hardyway, 224 Kan. 420, 429, 582 P.2d 251 (1978). The question in this case is one of existence of the privilege, not the reach or scope of the privilege or whether its assertion was justified. The question confronting us is whether a person who has pleaded guilty to a crime but who has not yet been sentenced is entitled to exercise the Fifth Amendment privilege against compelled testimonial self-incrimination with respect to the crime to which he has pleaded guilty. Although the general inquiry is when does the privilege cease to be operational, the specific inquiry raised by this case is whether it ceases to operate upon entry of a guilty plea or whether it retains vitality at least until sentencing.
Reference to the subject at hand can be found in reported decisions from various other jurisdictions. The positions taken are not uniform. In the main, they recite barely more than fleeting reference to the subject. New recite in-depth analysis produced by reflective deliberation. Some, if not many, seem to simply feed upon one another.
At what point in time on the continuum of judicial process is incrimination sufficiently complete that the risk of incrimination ends? At least five time zones may be identified: (1) prior to verdict; (2) through verdict but not sentencing; (3) through sentencing; (4) through direct appeal; (5) through the period of possible collateral review. Ellison v. State, 65 Md. App. 321, 329-31, 500 A.2d 650 (1985), cert. granted 305 Md. 600 (1986). It appears that the “weight of authority” supports our conclusion that availability of the privilege continues at least through sentencing for the reason that the risk of incrimination ends no earlier than that. See, e.g., Mills v. United States, 281 F.2d 736, 741 (4th Cir. 1960); People v. Villa, 671 P.2d 971, 973 (Colo. App. 1983); Ellison v. State, 65 Md. App. 321; People v. Herbert Smith, 34 Mich. App. 205, 210-11, 191 N.W.2d 392 (1971), aff'd 396 Mich. 362, 240 N.W.2d 245 (1976); State v. Tyson, 43 N.J. 411, 416, 204 A.2d 864 (1964), cert. denied 380 U.S. 987 (1965); State v. Corbin, 48 N.C. App. 194, 196-97, 268 S.E.2d 260, rev. denied 301 N.C. 97 (1980); State v. Nelson, 246 Or. 321, 323, 424 P.2d 223, cert. denied 389 U.S. 964 (1967); Com. v. Bellacchio, 296 Pa. Super. 468, 474, 442 A.2d 1147 (1982); State v. McConnohie, 121 Wis. 2d 57, 65, 358 N.W.2d 256 (1984). Case authority holding the privilege extends beyond sentencing need not now be relied upon.
The State argues that the privilege ceases to exist upon conviction, which in this case occurred when Rucas’ guilty plea was accepted, a time prior to his assertion of the privilege at Rhea’s trial. We disagree. We are persuaded by the reasoning appearing in Ellison v. State, 65 Md. App. at 324-31, 334-45. The reasoning and analysis reported in Ellison is the most thorough and cogent we have found in the relevant authorities called to our attention or found through our research. We refer the reader to what is said there; to summarize or paraphrase that exposition would do it a disservice. Nonetheless, from that opinion, we repeat this:
“Until the verdict is consummated by the sentence, there is no final judgment. We are still within the nisi prius stage. There yet is nothing on which an appeal can be taken. It strains logic to deem the risk of incrimination to be at an end before there has been a final judgment in the case.” Ellison v. State, 65 Md. App. at 342-43.
In Kansas there is no “final judgment in the case” from which an appeal can be taken until there has been both conviction and sentencing, or suspension of sentence. State v. McDaniels, 237 Kan. 767, 770, 703 P.2d 789 (1985); City of Kansas City v. Sherman, 9 Kan. App. 2d 757, 758-59, 687 P.2d 1383 (1984); City of Topeka v. Martin, 3 Kan. App. 2d 105, 590 P.2d 106 (1979). The sentencing judge may consider the circumstances of the offense and any mitigating or aggravating factors, the attitude of the victim and the victim’s family, and the defendant’s criminal record, social history, and mental and physical condition. See K.S.A. 1986 Supp. 21-4603(1) andK.S.A. 21-4606(1). Further, the court may consider “any other facts or circumstances that may aid the court in sentencing . . . [including] the financial, social, psychological, physical or other harm or loss suffered by victims of the offense and the restitution needs of such victims.” K.S.A. 1986 Supp. 21-4604(2)(d).
We conclude that vitality of the Fifth Amendment privilege against self-incrimination extends at least through sentencing, that here the trial court erred in holding to the contrary, and that this case must be reversed.
As his second issue on appeal, Rucas challenges the trial court’s order that he serve one year in jail. The State agrees there was error. We need not address the question. Our disposition of the Fifth Amendment privilege issue and our order that the direct contempt adjudication be reversed makes that unnecessary.
Reversed. | [
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Brazil, J.:
Edwina L. Beard appeals from the district court’s order denying her motion to establish child support. The court found that it was without power to allocate a portion of the support and maintenance paid by James D. Beard as child support, or to modify the amount paid, or to establish support independent of the Beards’ property settlement agreement which had been approved by the court at the time of the Beards’ divorce. We reverse and remand.
James D. and Edwina L. Beard were married on August 20, 1961. Two children were born of the marriage: Brenda Kay (d.o.b. April 2, 1968) and Beth Ann (d.o.b October 20, 1972).
On May 28, 1981, Mr. Beard filed for divorce. He was represented by an attorney in the divorce action, but Mrs. Beard was not. Mr. Beard’s attorney drafted a property settlement agreement which was signed by both parties. Mrs. Beard’s lack of representation is not an issue in her appeal.
The parties’ property settlement agreement contains the following provisions regarding support and maintenance of Mrs. Beard and the parties’ children:
“11. James agrees to make the following payments to Edwina for the support and maintenance of herself and the two minor children of the parties, . . . : “a. The sum of $1,050.00 per month . . . ; and
“b. The sum of $2,500.00 in 1981 . . . following the end of the partnership year of Pierce, Faris, Cochran and Sutton . . . ; and
“c. For each year following 1981, the sum of $2,500.00 increased or decreased by a sum equal to the same percentage of increase or decrease in the gross income of James as reflected by his federal income tax return, as filed . . . ;
“d. In the event that any one of the children of the parties hereto attains age of majority, marries, becomes emancipated or dies, then the payments herein specified shall on the happening of each such event be reduced in a sum equal to twenty-five percent of the payments which would thereafter otherwise accrue and be payable in accordance with the terms and provisions hereof;
“e. All payments herein specified shall cease upon the death of James or Edwina;
“f. In the event of the remarriage of Edwina or upon Edwina’s commencing to live with a person of the opposite sex, the payments herein specified shall on the happening of such event be reduced in a sum equal to fifty percent of the payments which would thereafter otherwise accrue and be payable in accordance with the terms and provisions hereof.
“12. The obligation of James to make the payments above provided for, for the support and maintenance of Edwina and the two minor children of the parties shall be subject to modification from time to time during the lifetime of James in accordance with changes in his financial circumstances, subject, however, to the limitation that such payments shall not be subject to increase without his consent; and in the event the parties are unable to agree upon such modification, the District Court of Reno County, Kansas may modify such payments and James and Edwina shall be bound by any such modification subject to the limitations above set forth and subject further to the provision that it is the intent of the parties hereto that no decrease in said monthly payments shall be made which shall have the effect of decreasing such monthly payments unless the financial circumstances of James have so changed that James is unable to provide for his reasonable needs, the support of the minor children of the parties and make the payments required by this agreement. In the event that either party hereto requests a modification of said payments as above set forth, the District Court of Reno County, Kansas shall consider the following factors: a. The ability of James to make such payments based upon his income from all sources; b. The reasonable needs of Edwina; c. The reasonable needs of James; d. The reasonable needs of the children of the parties during their minority; e. The intent of the parties as set forth in this agreement.”
For tax purposes the agreement did not explicitly apportion the amount designated as “support and maintenance” between child support and spousal maintenance, which made the entire amount deductible to Mr. Beard and taxable to Mrs. Beard. On August 4, 1981, the court found the property settlement agreement to be valid, just, and equitable and incorporated it into the divorce decree.
On December 9, 1986, Mrs. Beard filed a motion requesting the court to establish child support for the couple’s minor child, Beth Ann. The district court noted that the sum designated as “support and maintenance” for Mrs. Beard and the minor children was not allocated between spousal maintenance and child support and that the court was without power to allocate the payments, to modify alimony set by the agreement, or to establish child support independent of the agreement.
1. Could the district court allocate payments between child support and alimony and then modify the child support?
Mrs. Beard contends that the district court’s conclusions that it could not allocate the support and maintenance payments between herself and the children and could not modify alimony set by agreement are contrary to K.S.A. 1987 Supp. 60-1610(a)(l) and (b)(3). Mrs. Beard also contends that the court’s reliance on Carey v. Carey, 9 Kan. App. 2d 779, 689 P.2d 917 (1984), is misplaced.
The district court retains jurisdiction to modify child support payments when a material change in circumstances is shown. K.S.A. 1987 Supp. 60-1610(a)(l); Carey v. Carey, 9 Kan. App. 2d at 781. Even when the parties have entered into a separation agreement which is incorporated into the divorce decree, as in the present case, provisions for the custody, support, or education of the minor children remain subject to the control of the court. K.S.A. 1987 Supp. 60-1610(b)(3). “The parties cannot, by agreement, divest the court of this power.” 9 Kan. App. 2d at 781.
The support and maintenance payment in the property settlement agreement in the present case did not allocate the amount between alimony, which cannot be modified by the district court, and child support, which the district court does have jurisdiction to modify. 9 Kan. App. 2d at 781; K.S.A. 1987 Supp. 60-1610(b)(3). In Carey, the court concluded that, “where a property settlement agreement incorporated in a divorce decree fixes a sum to be paid as ‘family support and alimony,’ with [apportionment between child support and spousal maintenance not indicated,] the trial court has no authority to modify the order in the absence of a provision in the setdement agreement or [by] consent of the parties.” 9 Kan. App. 2d 779, Syl. ¶ 1. See Feldmann v. Feldmann, 179 Kan. 109, 292 P.2d 716 (1956). Under these cases, the district court was correct in concluding that it could not modify the amount designated as “support and maintenance” in the settlement agreement.
Rather than ending its inquiry at that point, however, the Carey court raised the possibility that a different result might be reached if the district court had some basis for apportioning an unallocated sum between spousal support and child support. The court stated: “We express no opinion on the result in a case in which the agreement contains internal indicators that apportionment of alimony and child support within a family support agreement was intended. See, e.g., Carter v. Carter, 215 Va. 475, 211 S.E.2d 253 (1975).” 9 Kan. App. 2d at 781.
The instant case presents the situation contemplated by the Carey court. The Beard settlement agreement does contain “internal indicators that apportionment of alimony and child support within a family support agreement was intended.” 9 Kan. App. 2d at 781. Mr. Beard’s payments were to be reduced by twenty-five percent in the event either of the children attained the age of majority, married, became emancipated, or died. Mr. Beard did, in fact, reduce his payments by twenty-five percent when his elder daughter reached age eighteen. The payments were to be reduced by fifty percent in the event Mrs. Beard remarried or commenced living with a person of the opposite sex. By the terms of the settlement agreement, twenty-five percent of Mr. Beard’s original $1,050 monthly payment, or $262.50, could be allocated as child support for his minor daughter. The agreement contains not only “internal indicators that apportionment . . . was intended,” 9 Kan. App. 2d at 781, but provides the exact percentages intended as support for each child and as maintenance for Mrs. Beard.
2. Could the district court establish child support independent of the property settlement agreement?
The Beards both agree that the property settlement agreement was intended as a Lester agreement.
“The so-ealled Lester Doctrine arises from Commissioner v. Lester, 366 U.S. 299, 6 L. Ed. 2d 306, 81 S. Ct. 1343 (1961), a suit to recover personal income tax deficiencies. At issue were defendant’s deductions of support payments made to his former wife pursuant to a written agreement approved by the divorce court. 366 U.S. at 300. The United States Supreme Court held that an agreement which ‘calls merely for the payment of certain monies to the wife for the support of herself and the children’ does not ‘fix’ the amount of support going to the children within the meaning of the Internal Revenue Code. 366 U.S. at 304-05. Lester could not have deducted any amount fixed as child support; because the whole was characterized as alimony, he was allowed the deduction.” 9 Kan. App. 2d at 780.
It is our understanding that the Lester Doctrine has been overruled by the Deficit Reduction Act of 1984 (also called Tax Reform Act of 1984), but the tax ramifications of those changes need not be considered by us.
In the present case, the Beards’ agreement was drafted so as to allow Mr. Beard to deduct the entire amount of support and maintenance payments for tax purposes and to require Mrs. Beard to include the payments as income to her for tax purposes.
The court in Carey did not find it necessary to express an opinion as to the result in a case such as the present case. Neither do we need to reach that question because the district court could have established child support in a separate order without modifying the Beards’ settlement agreement.
Notwithstanding the tax considerations, our only concern is the continuing obligation of the district court to make provision for the support and education of the minor child (K.S.A. 1987 Supp. 60-1610[a] [1]) while at the same time respecting the rights of the Beards to enter into a separation agreement not subject to court modification except as provided by statute. K.S.A. 1987 Supp. 60-1610(b)(3).
In the present case, we see no reason why the district court cannot enter a child support order separate and apart from the original agreement taking into account the income of Mr. Beard (excluding his present support and maintenance payments) and the income of Mrs. Beard (including the present support and maintenance payments).
We see nothing in the Carey opinion that would preclude a separate child support order.
In addition, on remand the district court will also need to consider any other relevant evidence presented by the parties together with the appropriate child support guidelines.
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The opinion, of the court was delivered by
Marshall, J.
:■ The defendant appeals from a judgment
against it on a surety bond. J. B. Betts contracted with-the board of regents of the State University to erect a hospital building at Rosedale. The contract contained this provision:
“Said builder shall, before entering upon the work, execute to the owner two bonds in form and with sureties satisfactory to the owner; one bond to secure the faithful performance of this contract, and the other conditioned for the payment of all claims which might become the basis of liens, and to comply with the requirements of paragraph 5577, General Statutes of Kansas, 1905; each of which bonds shall be in amount equal to the total consideration named in the contract.”
Two separate bonds, exactly alike in all particulars, were executed, each in the sum of $36,247. Each contained this provision:
“Now, therefore, if the said J. B. Betts shall well and faithfully perform said contract on his part in all particulars, and shall pay all indebtedness incurred for labor and material furnished and used in and about the said contract work, or which might become the basis of a lien, then this obligation shall be null and void; otherwise to be in full force and effect.”
One bond was filed with the clerk of the district court of Douglas county and the other was retained by the board of regents. This action was brought to recover for material furnished by the plaintiff to J. B. Betts and used in the building. The defendant filed a demurrer to the petition on the ground that it did not state facts sufficient to constitute a cause of action. The same question was raised by objection to-the introduction of evidence, by demurrer to the evidence, by objection to the rendition of judgment and by motion for a new trial. The defendant argues that the action was barred by section 6257 of the General Statutes of 1909 (Civ. Code, 1909. §662).
1. Was this action barred by any statute of limitations? The contract required J. B. Betts to give a bond under section 5577 of the General Statutes of 1905. That section is section 13 of chapter 168 of the Laws of 1889, and appears in the General Statutes of 1901 as section 5129, which was amended by section .1 of chapter 183 of the Laws of 1909. This last statute is found as a section without number between section 6255 and 6256 pf the General Statutes of 1909 (Civ.'Code, 1909, §§ 660, 661), and, in part, reads:
“The contractor or owner mentioned in section- 1 of this act' may execute a bond to the state of Kansas for the .use.of all persons in whose favor liens might accrue by virtue of this act, conditioned .for the payment of all claims which might be the basis of liens; which bond shall be in a sum not less than the contract price and signed by' a surety company authorized to do business in Kansas. . . : Such bond shall be subject to the approval of the clerk of the district court in the county in which the property is situated and shall be filed in the' office of said clerk. When such bond is so approved and filed no lien shall attach under this act. . . . Suits may be brought on said bonds by any person interested.”
The defendant contends that section 5577 of the General Statutes of 1905 was repealed by chapter 183 of the Laws of 1909, and has ceased to exist. Section 6255 of the General Statutes of 1909 is a part of the new code of civil procedure, and is a continuation of section 5129 of the General Statutes of 1901 and of section 5577 of the General Statutes of 1905. Section 6255 of the General Statutes of 1909 and section 1 of chapter 183 of the Laws of 1909 provide for the same kind of a bond to be given for the same purposes. The principal difference between the two sections concerns the sureties who sign the bond, and, under the statutory rule of construction (Gen. Stat. 1909, §9037, subdiv. 1), each section continues the provisions of section 5129 of the General Statutes of 1901 and of section 5577 of the General Statutes of 1905.
Two other sections of the General Statutes of .1909, 6256 and 6257, must be examined. Section 6256 reads:
“That whenever any public officer shall, under the laws of the state, enter into contract in any sum exceeding one hundred dollars, with any person or persons for the purpose of making any public improvements, or constructing any public building or making repairs on the same, such officer shall take from the party contracted with a bond with good and Sufficient sureties to the state of Kansas, in a sum not less than the sum total in the contract, conditioned that such contractor or contractors shall pay all indebtedness incurred for labor or material furnished in the construction of said public building or in making said public improvements.”
Section 6257 provides “that no action shall be brought on said bond [the bond prescribed in section 6256] after six months from the completion of said public improvements or public buildings.” Neither section 1 of chapter 183 of the Laws of 1909 nor section 6255 of the General Statutes of 1909, prescribes any time within which an action must be commenced on a bond therein provided for.
The repealing clause of chapter 182 of the Laws of 1909, “An Act concerning the code of civil procedure,” reads:
“Chapter 80 of the General Statutes of 1901, entitled ‘An act to establish a code of civil procedure,’ and all acts amendatory thereof and supplemental thereto, are hereby repealed, save and except such as are or may be passed at the session of 1909.” (Laws 1909, ch. 182, § 755.)
Chapter Í83 of the Laws of 1909 is in full force and effect and governs the bond prescribed in the contract and filed with the clerk of the district court.
Although section 5577 of the General Statutes of 1905 had been repealed and its place taken by section 1 of chapter 183 of the Laws of 1909, we can not assume or say that the board of regents made a mistake in referring to section 5577 with sections 5578 and 5579 immediately following and on the same page.
The defendant argues that this bond was given under 6256 of the General Statutes of 1909, which, with slight verbal changes, is the same statute as section 5578 of the General Statutes of 1905. It does not appear that a bond was not given under this statutory provision. It was not necessary that the contract provide that such a bond should be given. The law imposed the duty on the board of regents to take that bond from J. B. Betts.
There was nothing in the law to prohibit the board of regents requiring a bond in addition to any prescribed by statute. An action on such additional bond would not be barred by the statute of limitations until five years had elapsed after the cause of action had accrued. Even if it be granted that the bond filed with the clerk of the district court was given under section 6256 of the General Statutes of 1909, the terms and conditions of the bond retained by the board of regents might be such as the parties thereto saw fit to make. Compliance with the terms and conditions of the bond filed with the clerk of the district court would not necessarily be a compliance with the terms and conditions of the bond retained by the board of regents.
Whether this action was brought on the bond provided for by section 5577 of the General Statutes -of 1905 (section 1 of chapter 183 of the Laws of 1909) or on another and additional bond required by the board of regents, and not prescribed by any statute, the action was not barred by any statute of limitations, and it follows that the petition stated a cause of action.
2. On the trial the plaintiff introduced evidence to prove that it had furnished “extras,” articles not called for by the contract. These were required and used in the construction of the building to carry out changes made in the plans after the contract had been signed and the bonds had been given. To this evidence the defendant objected. We have before us a copy of the contract between J. B. Betts and the board of regents. That contract makes provision for alterations in the plans, drawings, specifications and elevations of the building, and for increasing or decreasing the cost of constructing the building in accordance with the changes made. Since the bond stipulated that “J. B. Betts shall well and faithfully perform said contract on his part,” changes in the building and the materials therefor, and in the cost of construction, were contemplated. The “extras” furnished were within the terms of the contract and therefore of the bond.
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Per Curiam:
The attorney-general having been directed by the court to take such steps as might be proper in the premises in the case of The State of Kansas, ex rel, Agnes Bjorn v. Robert Creager, filed, after due and proper preliminary proceedings, an accusation against John F. Hanson, setting forth, among other things, that the Creager case appealed from the district court of McPherson county was heard and determined in this court and an opinion, filed February 12, 1916, sustained the judgment of the lower court (The State, ex rel., v. Creager, 97 Kan. 334, 155 Pac. 29) ; that John F. Hanson was one of the attorneys for the plaintiff and appellant in that case, and as such filed his brief in this court, and after affirmance of the judgment there was filed in this court a petition for rehearing, prepared by Hanson as attorney for the appellant; that John F. Hanson is an attorney-at-law duly admitted to practice in the district courts and in the supreme court of this state, and as such is an officer of this court, and that while acting as such attorney in such petition for rehearing made various and divers attacks and reflections upon this court, and willfully used towards this court contemptuous and insulting language, found in various portions of the petition set forth in numerous paragraphs thereof.
The attorney-general alleged that this language was calculated to bring the court into disrepute and contempt and was willfully and purposely used by Hanson for the purpose of bringing the court into contempt; that his attention had been directed to the use of such language and his conduct towards this court and that he had been admonished in an opinion in The State v. Linderholm, 95 Kan. 669, 149 Pac. 427, wherein it was said, among other things: “But the writer finds in the pleadings, correspondence and documents of counsel a persistent insolence and effrontery towards this court and the individual justices which are wholly inexcusable and which must not be repeated. The very least that this court can do with such contumacious and insulting documents is to strike them from the files and consign them to the waste-basket.” (p. 671) ; that notwithstanding this warning Hanson willfully and ma liciously persisted in maintaining towards this court and the individual justices thereof a “persistent insolence and effrontery” for the purpose of showing contempt of the court and its opinions.
In answer to this accusation respondent, after asserting that he appears specially and objects to and denies the jurisdiction of the court, and alleging that the accusation does not constituté contempt, pleads generally not guilty. Further answering he admits, among other things, that “he prepared and filed the said petition, for rehearing referred to in said affidavit and accusation and that he did so intentionally with the exception of a few minor clerical errors which appear from the context and will be later herein referred to.” He referred to the petition for rehearing and such parts of the record in the Creager case—
“As can possibly pertain to or throw any light on the said language used in said petition for rehearing; . . . But he specifically denies that he disregarded his duties and obligations while acting as such attorney, but on the contrary exerted his utmost efforts in behalf of his client’s cause and further specifically denies that he intentionally made any improper, unlawful or unjustifiable attacks and reflections upon the said Supreme Court in said petition for rehearing, or that he intentionally used insulting language toward them, or any language towards the court or to the individual justices thereof which was not warranted by the circumstances; that he further specifically denies that he willfully and maliciously persists in maintaining toward this court or the individual members thereof a persistent insolence and effrontery, and he further specifically denies that he has done anything with the purpose and intent of showing contempt for this court, or the individual members thereof; and he further specifically denies that said language or any part thereof or any other language intended to be charged considered in the proper light and the surrounding circumstances constitutes contempt against this court or any member thereof, and alleges that any holding, rule or statute to the effect that it does constitute contempt under the circumstances would so restrict procedure and the right to be heard that it would not be due process of law and would be in contravention of section one of the fourteenth amendment of the federal constitution.”
Another portion of his answer is as follows:
“The said John F. Hanson further answering alleges and says that the unusual and vehement language used in the said petition for rehearing is made necessary by what seems to be a persistent practice of the court of going to extremes adverse to him in their rulings and position in causes before them in which he is counsel or party, and in not giving them as full and careful attention as they seem to merit, and for want of other adequate remedy he is compelled to make the most out of the opportunity in presenting matters to the courts in the hope that they might be awakened to a greater sense of their duty and attention in these matters.”
After referring to numerous cases in which he complains of the action of this court the answer continues:
“That in view of this state of affairs the use of emphatic language such as set out in said affidavit should at least be excusable, as it is used with an honest purpose to get better and closer attention to the matters under consideration, and no disrespect is intended.”
The answer closes thus:
“And further answering the said John F. Hanson says that the slang used in said language was not intended as any disrespect and though contending that it does not constitute contempt, he is willing to make due apologies therefor, and if the court will clearly point out in further opinion or otherwise show him that his position in this cause in any instance is so erroneous that any emphatic language or severe criticism is uncalled for he is then willing to make due apologies for having used such language in that or those particular instances.”
But one construction can be placed on this answer, which is that the respondent admits using the language substantially as charged and claims that he was justified in so doing because jihe court had rendered decisions in other cases in which he was interested which were unsatisfactory to him and had shown such partiality against him that he might properly resort to this sort of language in order to win proper attention and consideration and that while all this was intentionally done it was not for the purpose of showing contempt for the court.
If the language confessedly used by an attorney and officer of this court in a petition for rehearing be such as to carry beyond question its own inherent and inevitable significance and character then the user must have intended the natural and probable consequences of his act in using such language. Particular attention is called to certain statements found in the quotations from the petition for rehearing set forth in the accusation :
“The court evidently is not parading this immaterial statement for any good purposes. . . . Those statements are libelous if they mean anything wrong.”
“Now have you stated this fairly? If it does not insinuate anything wrong, why is it stated at all? If it does it is libelous, because it does not state enough of the record as it is to put it in the right light. Cut it out, or state it fully!”
“Does not that look like duplicity? Looking at it closely it appears that the preliminary hearing is meant, but it. was your duty to say: ‘At this preliminary hearing.’ ”
“This court has been imposed on by counsel for defendant. This court has bitten so often on dope and extrinsic matter put out by opposite counsel that they are getting bold in the matter they put over.”
“Why do you holler about her not getting this correct when none of the other witnesses, including the defendant, could place the time positively? Why do you expect so much more from her? Do you have a grudge against her that you point out her shortcomings all the time, even when they are immaterial?”
“Your statement is absolutely misleading and unfair.”
“Does not this show malice by the court?”
“Your opinion is absolutely libelous on this matter, and you should be fair enough to grant a rehearing, correct these wrong impressions of facts, and decide this question in the new light.”
“Your adding to the first sentence ‘who was not guilty’ is absurd and ambiguous. In the first syllabus you have intimated that this involved a question of a motive to obtain money wrongfully, and that is libelous.”
“From your first syllabus one might infer that you insinuate that the record shows something wrong of that kind, and so far it is libelous. .And in so far as you hold it a defense without such a wrong it is absolutely ridiculous and not tenable.”
“Further you do not meet our issue, and in fact dodge the real question.”
“We think that the way you dispose of this is utterly frivolous; that, in one sense, it is only a method to dodge the real questions. But the most important trouble is that I fear that it will make Kansas law ridiculous not only in Kansas, but all over the United States. That they will give this the horse laugh all along this line.”
“You are now introducing a rule that would serve no good purpose excepting to make it possible to introduce prejudicial matter that really has no probative effect or any pertinence to the real issue. ( This is the limit! Lord protect us! Opportunity!”
“The disposing of error as you do shows malice upon its face by this court. Every lawyer in the state can read it between the lines. It is a sham at an error in judgment that ought to be too raw for this court to put over and be left to stand.”
These are a few of the expressions contained in the charge and admitted by the respondent, and it must be held that they bear upon their faces plenary and satisfactory evidence that they were used not only with utter disregard of anything like respect but with the plainest intent to express contempt and disrespect for the court to which,they were addressed.
It is one of the plainest and most primary duties of an attorney to be respectful to the courts in which he practices. It was held in the case of In re Pryor, 18 Kan. 72, that—
“An attorney, as an officer of the court, is under special obligations to be considerate and respectful in his conduct and communications t.o the court, or judge.” (Syl. ¶4.)
In the opinion it was said:
“We remark secondly, that an attorney is under special obligations to be considerate and respectful in his conduct and communications to a judge; He is an officer of the court, and it is therefore his duty to uphold its honor and dignity.” (p. 74.)
By statute this court is given express power to disbar or suspend an attorney-at-law “for a willful violation of his oath, or of any duty imposed upon an attorney-at-law.” (Laws 1913, ch. 64, § 2.)
(See, also, The State v. Waugh, 53 Kan. 688, 37 Pac. 165; In re Hanson, 80 Kan. 783, 105 Pac. 694; Hanson v. Sward, 92 Kan. 1, 140 Pac. 100; In re Dunn, 85 Neb. 606; 2 R. C. L. 1092; 6 R. C. L. 523.)
The motion, affidavit and application for citation for con-, tempt in this matter were filed March 25, 1916. The respondent filed an answer to the citation April 7, and what he terms a plea to the jurisdiction May 1, a motion to strike July 6, a motion to make more definite and certain July 25, and his answer to the accusation August 5. He appeared in court in his own behalf at the October sitting, but in all this time no expression has come from him modifying in any way the terms of his answer already referred to.
In view of the circumstances and situation presented it is by the court ordered that the respondent, John F. Hanson, for his contempt as hereinbefore set forth, be and he is hereby suspended from practice as an attorney at law in any of the courts of this state until the further order of this court. | [
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The opinion of the court was delivered by
Mason, J.:
J. F. Hollicke sued the Missouri Pacific Railway Company for its failure to deliver two boxes of goods out of a shipment of nineteen, made from Bison to Sedgwick. He recovered a judgment, from which the defendant appeals.
1. The failure to deliver the two boxes at Sedgwick was admitted, but the company maintains that they were delivered at Wichita, together with a shipment of six other boxes made by the plaintiff to that point from Bison at the same time. That eight boxes were delivered at Wichita seems established, but the plaintiff insists that the two extra boxes must have been from some other shipment, and that at all events they could not have been the two boxes missing from the Sedgwick consignment, one of which contained men’s suits and the other underwear, while those delivered at Wichita contained shoes. The jury obviously accepted this theory. The defendant maintains that there was no evidence to support it. There was testimony tending to show that all the boxes bore labels showing their contents, that the missing boxes were larger than those containing shoes, that the extra boxes delivered at Wichita did not correspond to them in size, and that the persons who probably unpacked the boxes at Wichita did not remember that any of them contained underwear or men’s suits. The evidence on this phase'of the matter was very far from convincing, but is held to have been sufficient to warrant submitting the issue to the jury.
2. The plaintiff testified that one box contained underwear worth $83.87, and the other sixty-three men’s suits worth $12 each. There was no other evidence as to the value of the contents, but a number of witnesses testified that the plaintiff’s reputation'for veracity was bad. . The verdict and judgment were for $300. The defendant asks a reversal on the ground that there was no evidence whatever to support a finding of this amount. The rule is familiar that the party against whom a judgment is rendered may contest it on the ground that it is not supported by any evidence, although conceding that the evidenced would have warranted a judgment for a larger amount. (Hart v. Gerretson Co., 91 Kan. 569, 138 Pac. 595, and cases there cited; Smith v. Hanson, 93 Kan. 284, 144 Pac. 226.) In support of the verdict it is contended that the jury, while believing that the railway company had failed to deliver the two boxes, may reasonably have concluded that the plaintiff had overstated the quantity of goods they contained (there having been some difference in the testimony as to their size), or that the plaintiff, whose veracity the evidence tended to impeach, had exaggerated their value. A jury, of course, may believe a part of the testimony of a witness and reject the rest. And a finding of value may be upheld although no witness may have testified to the particular amount found. Here, however, all that was stated concerning the goods was the num ber of suits and the value of each, nothing being said as to their character, quality or condition, although it is suggested that as they were shipped from one store to another they may be presumed to have been somewhat shelf-worn. The court is of the opinion that if the jury disbelieved the testimony of the plaintiff as to the value of the goods, there was nothing in the evidence that enabled them to make an intelligent estimate as to the reduction that should be made from his figures on account of his disposition to exaggerate, or to make an independent appraisement, and therefore that the verdict is unsupported by the evidence and should be set aside.
The judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Porter, J.:
On February 2, 1914, the appellants brought an ordinary suit to foreclose a mortgage on a quarter-section of land executed in 1906 by David Jurgensen. The appellees were joined with him as defendants because they claimed some interest in the land. Their answer alleged that they purchased in good faith, relying upon a judgment rendered in The district court April 20, 1909, in an action in ejectment brought by F. G. Jones against David Jurgensen; that appellants’ mortgage was of record when the judgment was rendered, and that appellants had due notice of the pendency of the ejectment proceedings. The answer asked for a decree establishing appellees’ title as against the mortgagees.
The reply denied that appellees had any legal right or title to the real estate; admitting that on April 20, 1909, the district court rendered a judgment against the mortgagor, Jurgensen, in an action for possession of the real estate, it alleged that appellants were not parties to that proceeding, and that their mortgage being of record their rights were not affected by the judgment. The reply then alleged that on July 16, 1910, Jurgensen, by proper proceedings, duly opened up the judgment, and the district court vacated it and set it aside; that after-wards, and on September 13, 1910, with the consent of the court, the plaintiff in that action dismissed the ejectment proceeding without prejudice. The reply denied that appellees purchased for a valuable consideration, relying upon the judgment.
The judgment in the ejectment action was rendered April 20, 1909. On May 3 of the same year, F. G. Jones, the'plaintiff in that action, conveyed the land to C. M. Starr by a deed which was recorded. Seven days later Starr conveyed the land to C. M. Cole, and on March 6, 1911, the latter made a deed to R. J. Terwilliger, one of the appellees-. Terwilliger was a witness and testified that he purchased the land relying upon the opinion of his attorney, who examined the abstract of title, that he had not investigated the record himself at that time, and that, while he would not say positively, he believed his attention had been called to the fact of the judgment, that he did not rely upon the judgment of the court, but upon the opinion and judgment of his attorney. In Loan Co. v. Cable, 65 Kan. 306, 68 Pac. 127, in which it was held that the vacation of a judgment after title had been quieted would not affect the right of an innocent purchaser, the attorney who had examined the abstract testified that he passed the title in reliance on the judgment. The trial court in the present case held that appellants’ mortgage lien was extinguished by the judgment in the action in ejectment, and rendered a general judgment against appellants. There being some evidence to support a finding that appellees purchased in reliance upon the judgment, but one question remains to be determined, which is, whether the judgment affected the lien of appellants’ mortgage.
Plainly the appellants, who were not parties to the ejectment action, are not bound by the judgment therein. They had no notice of the action, and did not participate in any way in the proceedings. To hold otherwise would be to deny their right to a day in court. The case is controlled by the decision in Loan Co. v. Marks, 59 Kan. 230, 52 Pac. 449, reversing the decision in 6 Kan. App. 34. In that case a judgment was obtained in an action of ejectment in which the mortgagor was a party, summons having been served upon him personally. The loan company, mortgagee, was also made a party and service was obtained against it by publication. Both defendants defaulted and judgment was taken against both. The opinion states:
“The only relief asked in the petition was a judgment for the recovery of the possession of the property, and that was the only relief granted by the judgment rendered in the case. The plaintiff in this action do„es not now claim and never has had or claimed any right to the possession of the land.” (p.236.)
The court held, too, that the judgment in ejectment was binding on the loan company “to the full extent of the matter adjudicated. It determined that the plaintiff in this actioii [of foreclosure] had no right to possession of the property. It might even be conceded for the purposes of this case that it determined that the plaintiff had no title to the land. None is claimed here.” (p. 236.)
The syllabus reads:
“A judgment in an action for the recovery of the possession of real property, brought against a mortgagor in possession and a mortgagee holding a mortgage executed by him, rendered against the mortgagee by default, and against the mortgagor after a trial, for the recovery of the possession of the property, is not an adjudication as to the right of the mortgagee to a lien on the land under his mortgage! Having neither title to the land nor right of possession, he is not called on to defend an action in the nature of ejectment.” (Syl. ¶ 3.,)
The petition in the case of Jones v. Jurgensen, wherein the judgment was rendered upon which appellees base their claim, was the short statutory forman ejectment. It alleged merely that the plaintiff therein was the owner of th'e land described-, and entitled to the immediate possession thereof, and that the defendant unlawfully kept him out of the possession. It asked a judgment against Jurgensen for possession of the real estate, and the judgment awarded plaintiff that and nothing more.
Conceding, therefore, that the appellees were innocent purchasers for a valuable consideration in full reliance upon the judgment, whatever title they took was always subject to the lien of appellants’ mortgage, and it was error to hold otherwise.
The cause is remanded with direction to render judgment foreclosing the mortgage. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff recovered judgment against the defendant for $1400, under the workmen’s compensation law, and the defendant appeals.,
1. The plaintiff’s knee was injured at the defendant’s mill on September 7, 1914, and he was taken from there to a hospital where he remained until September 15. In November defendant offered to pay plaintiff sixty-five dollars compensation, the plaintiff himself to pay for an operation on his injured knee. The offer was not accepted. This action was commenced December 16, 1914. The defendant’s answer, which was filed October 7, 1915, alleged that the plaintiff’s injury was of four weeks’ duration and that he had long since recovered therefrom. On October 23, 1915, the plaintiff filed a reply, con sisting of a general denial. The plaintiff’s injuries were examined by a number of physicians, by some before this action was commenced and by others afterward. On October 20, 1915, Dr. Updegraff performed an operation on the plaintiff’s knee and removed a loose piece of bone. The cause was called for trial on the 26th day of October, 1915. The defendant then asked that the trial be postponed for a reasonable length of time so that it could be ascertained whether the injury to the plaintiff’s knee was temporary or permanent; and offered to show by Dr. Updegraff that sufficient time had not elapsed for him to ascertain that fact. The court refused a continuance. This is assigned as error.
The defendant was advised of - all the facts necessary for it' to know in order to prepare its defense. At the time the case was called for trial the action had been pending for a little more than one year. The answer had been filed almost twenty days. The reply added nothing new to the petition or the answer. The defendant knew of the plaintiff’s injury and knew something of the extent of that injury. It was not necessary to postpone the trial until it could be definitely known whether or not the plaintiff’s injury was temporary or permanent. It can not be said that the court abused its discretion in refusing the defendant’s application for a continuance.
2. The defendant contends that there is a grave question as to whether the injury to the plaintiff’s knee was caused by the accident at the mill or by the plaintiff’s slipping and falling while he was walking along the street in November, 1914. There was no question about the plaintiff’s being injured at the defendant’s mill. Neither was there any question -about that injury extending over some period of time. Some evidence tended to show that all of the plaintiff’s injury was caused by the accident at the mill, although there was evidence which tended to show that the plaintiff might have been injured when he fell on the street. The instructions to the jury are not set out in the abstract. If this question was a disputed one at the trial it must have been submitted to the jury and must have been determined adversely to the claims of the defendant. The jury determined this question by its verdict, and that verdict is conclusive in this court.
3. The defendant requested the court, on the verdict returned by the jury, to make an award of weekly payments, subject to modification, review, redemption or cancellation. This was refused and a lump sum judgment rendered. This question has been before this court on a number of occasions, and has been determined adversely to the defendant’s contention; and appeals have been dismissed where that was the only question presented. (Gorrell v. Battelle, 93 Kan. 370, 144 Fac. 244; Cain v. Zinc Co., 94 Kan. 679, 146 Pac. 1165; Roberts v. Packing Co., 95 Kan. 723, 149 Pac. 413; McCracken v. Bridge Co., 96 Kan. 353, 150 Pac. 832; Halverhout v. Milling Co., 97 Kan. 484, 155 Pac. 916.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This case turns on the question which arises
on the default of a loan agent at whose office .payments of interest and principal on a mortgage are to be made, when such agent fails to transmit to a mortgagee the moneys paid to him by a mortgagor for the reduction of the mortgage indebtedness.
In 1904 William Nace mortgaged his farm to the plaintiffs,residents of New York, to secure a loan of $2000 payable in five years. The loan was procured through Wm.’ T. Sinclair, who was for many years a loan agent in Lawrence. The interest was regularly paid to Sinclair, who remitted to plainr tiffs, and they in turn forwarded the interest coupons thus paid to him for surrender to the debtor. Later Nace conveyed the farm to his son, F. H. Nace, the defendant, and when the debt became due an extension agreement was made between plaintiffs and defendant through negotiations conducted by Wm. T. Sinclair. The extension agreement provided for optional payments of multiples of $100 at any interest-paying periods, principal- and interest, “to be paid, when due, at the office of Wm. T. Sinclair, in Lawrence.” The plaintiffs were the trustees of a New York estate, and the loan was made and extended on its account. One of these trustees was a member of a firm of lawyers who attended to the business of the estate, and he and his law firm conducted the correspondence with Sinclair pertaining to the Nace loan. Nace paid $50 to Sinclair for securing the extension, and Sinclair divided this sum with the New York lawyers, who were the attorneys for the trustees and one of whom was himself a trustee.
F. H. Nace made two payments of $500 each on the principal of the debt. These sums were received by Sinclair, but he failed to remit to the plaintiffs. As later interest payments became due Nace paid according to his reduced indebtedness, and Sinclair added a .sufficient sum to take up the coupons according to their original tenor, thus concealing from plaintiffs the fact that the defendant had repeatedly exercised his option to make payments upon the principal debt. Eventually Sinclair died, and the plaintiffs brought foreclosure proceedings ; and this appeal is brought to determine the correctness of the judgment of the district court, which held that defendant Nace was entitled to credit for the two payments of $500 each which he paid to Sinclair.
It is urged that evidence touching other business dealings between plaintiffs and Sinclair was improperly admitted. Since the vital issue in the case was the question whether Sinclair was the agent of plaintiffs or of defendant in the matter of receiving and transmitting the defendant’s payments of interest and principal, we think that evidence showing the scope and nature of Sinclair’s agency was admissible. (1 Wigmore on Evidence, §§94, 376, 377; 31 Cyc. 1219.) The competent evidence showed beyond cavil that Sinclair was the general agent of plaintiffs for its business in Douglas county, Kansas. He made many loans for plaintiffs, prepared the papers, abstracts, recommended the security and collected the interest and principal. He divided his- commissions with the law firm of one of the plaintiff trustees. One of the plaintiffs testified that the plaintiffs had a number of loans in Kansas, and that their business was transacted through Sinclair.
“Q. Were payments on these several mortgages to which I have called your attention made by the mortgagor to the trustees? A. There were payments made of interest and of some principal.
“Q. And were any of those payments made directly or personally to yourself or Mrs. Wright? A. No.
“Q. And were these payments made through William T. Sinclair? A. Yes.
“Q. Were the coupon notes forwarded to Sinclair before these payments were received by you, or after? A. After.
“Q. Are you sure? A Yes, I never sent coupons on for collection.
“Q. When you forwarded the money that this mortgage was given to secure, how was that forwarded? A. By draft.
“Q. By New York draft payable to whom? A. I do not remember; I think Sinclair.
“Q. They were not sent to Sinclair himself for collection? A. No.”
A mass of correspondence between plaintiffs and Sinclair touching the Nace loan, the division of the commission (under the guise of payment to one of the plaintiffs for examining the abstract) was introduced. The correspondence related also to other and similar loans and remittances of principal as well as interest, and it must be held that this evidence was competent as showing the general course of business dealings between Sinclair and the plaintiffs, and it clearly establishes that Sinclair was plaintiffs’ general agent in this business. That some slight inferences to the contrary might possibly be drawn from the correspondence and from the evidence in general is unavailing since the special findings conclude that phase of the controversy. (Wilson v. Haun, 97 Kan. 445, 447, 155 Pac. 798.) While the authorities are many which hold that a place of payment or designated depository for the payment of interest and principal of a debt does not imply that payment there is an absolute satisfaction of the debt unless such depository or the person in charge of such place of payment is in possession of the securities (Goodyear v. Williams, 73 Kan. 192, 85 Pac. 300) yet other circumstances may be proved which will clearly show the person in charge of the place of payment to be the creditor’s agent; and in this case the plaintiffs’ own testimony proved that they never forwarded the coupons or securities to the place of payment, and never surrendered these evidences of indebtedness and securities until the money was transmitted to them by Sinclair. Such was their course of dealing. How then could the rule urged by plaintiffs apply to this case whén Nace was to pay at the office of Sinclair, and plaintiffs regularly withheld the coupons and securities until they had received the cash from Sinclair? (Shane v. Palmer, 43 Kan. 481, 482, 23 Pac. 594; Fowle v. Outcalt, 64 Kan. 352, syl. ¶ 2, 358, 359, 67 Pac. 889; Hansford v. Meserve, 97 Kan. 450, 53 Pac. 835; Harrison Nat. Bank v. Austin, 65 Neb. 632; Campbell v. Gowans, 35 Utah, 268. See, also, Quinn v. Dresbach, 75 Cal. 159; Thompson et al. v. Elliott, 73 Ill. 221; May v. Trust Co., 138 Mo. 275.)
We have carefully examined Goodyear v. Williams, 73 Kan. 192, 85 Pac. 300, for its possible bearing in this case. Section 2 of the syllabus reads:
“Where a debtor delivers money to a third person for the purpose of paying- a promissory note which is not due, and such person does not have the note in his possession, the presumption is that the person receiving- the money does so not as the agent of the creditor but as agent for the debtor. This presumption can only be overcome and the converse established by evidence to the contrary.”
In this case the burden of proving that Sinclair was plaintiffs’ agent when he received the payments made by Nace was successfully borne by the defendant, as found by the trial court upon sufficient and competent evidence, and this compels an affirmance of the judgment. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by A. R. Green-street against Ida B. Cheatum and her husband to foreclose a lien upon real estate, created by the terms of a separation agreement.
The plaintiff and defendant Ida B. Cheatum, who were formerly husband and wife, were divorced in March, 1912, in contemplation of which they had entered into the contract re-, specting a division of their property. By its terms the defendant was given all the household goods and personal property and also the property in controversy which had been owned by the plaintiff and occupied by him and his wife as a home. This property was given, however, subject to the payment to the plaintiff of the sum of $1450, due and payable as soon as the property could be sold for $3800, and it was further stipulated that the $1450 should be a lien upon the property the same as a real-estate mortgage. In a subsequent suit a divorce was granted, the wife was awarded the custody of the minor children, and the plaintiff’s lien, provided for in the separation agreement, was ratified and confirmed. The decree recited that the $1450 claim and lien should be “due and payable as soon as said real estate can be sold for the sum of $3800 or when the same is sold for any sum,” and provided that the lien should have.the status of a real-estate mortgage. The property at and after the time the contract was made was estimated to be worth $3500, the house, a large two-story thirteen-room residence with bath and halls, representing about half that value. The defendant and her children lived in the house, and in November, 1912, she married her codefendant Cheatum. In April, 1914, the house was destroyed by fire, and upon proof of loss, the defendant received $2100 in insurance and thereafter erected a small six-room house valued at about $700. The lots upon which it was built were found to be worth about $1800 and with the small house erected thereon the property-was worth about $2500. It was further found that in view of the present situation of the property and conditions existing in that locality there is little prospect that the property can ever be sold for the sum of $3800. The court found that a present existing debt had been established and that as no definite time had been fixed for the payment of the debt it became payable within a reasonable time and that as a reasonable time had elapsed for payment a decree of foreclosure should be entered under which the mortgaged property should be sold to satisfy the plaintiff’s lien. Judgment was accordingly given and the defendants appeal.
They contend that the obligation of the plaintiff to pay the $1450 was contingent upon the happening of the event named in the separation agreement and the decree of divorce and that until it does happen no debt exists and no recovery can be had. If the existence of the debt is conditional upon the happening of a contingency, payment, of course, can not be enforced until the contingency happens. On the contrary, if a debt was in fact created and an absolute liability arose, payment of which was to be made upon the happening of an event which does not happen, the law requires payment to be made within a reasonable time. The intention of the parties as evidenced by their agreement and the attending circumstances must determine whether the debt is contingent or absolute. The plaintiff and his wife reaching the conclusion that they could no longer, live together agreed upon a division of their property and an assumption by each of certain liabilities. To the wife was given the household goods and personal property and also the residence which has been mentioned, as her absolute property, for which she obligated herself to pay her husband $1450, which was made a lien upon the residence. He was , to pay two small claims while she was to pay a lien on the property for $450. Both parties had an interest in the property divided and it was their manifest purpose that each should have a share of it.. As it was not subject to division in kind it was agreed that she should take all the property and pay him in money $1450. The property was transferred to her upon the consideration of her obligation to pay the sum of money and when the property passed to her the indebtedness to him came into existence. It was stated in their agreement that the indebtedness' should J>e treated the same as a real-estate mortgage on the property and that it should be collected the same as any other liability. It was evidently the purpose of the parties that the property would shortly be sold by her and that $3800 could be realized from it. Accordingly they fixed the event of the sale as the time when payment of the acknowledged liability should be made. Under the circumstances it is clear that an absolute liability of the wife was created when the property was transferred to her. The amount of the debt was not to depend on the selling price of the property, but was a fixed amount which was made a definite lien on the property. The promise made, which she in her agreement calls a.liability, was fixed and everything in the promise was definite except the time of payment. It certainly was not contemplated that if circumstances arose which prevented a sale of the property the debt should never be paid. (Jones v. Eisler, 3 Kan. 134; Palmer v. Hummer, 10 Kan. 464.) The well-settled rule is that if a debt in fact exists which has all the essentials except fixing a definite time of payment, or if payment is made to depend upon a contingency which does not or can not happen, the law requires payment to be made within a reasonable time.
In Benton v. Benton, 78 Kan. 366, 97 Pac. 378, the obligor . agreed to pay an acknowledged debt as soon as he could, and it was held that the obligation could not be regarded as a conditional one but as an actual liability which is payable within a reasonable time. It was there said:
“The mere admission of the debt is sufficient to establish an-absolute legal liability, lacking only the element of maturity to make it available as a cause of action. It is entirely inconsistent with the spirit and purpose of the engagement to suppose for a moment that the parties con templated that the avowed obligation should never be capable of enforcement, even to the extent of the obligor’s ability to pay, unless he should become financially able to meet the entire obligation at once.” (p. 370.)
In Randall v. Johnson, 59 Miss. 317, the court was considering a promise to pay a certain sum of money, procured to pay for the rigging of a vessel, within ninety days after the first return trip of the vessel, and it was held that the promise could be enforced although the vessel was lost at sea, and the debt was payable within a reasonable time; that is, in ninety days after the usual time required for a return trip. In Williston v. Perkins, 51 Cal. 554, it was ruled that where an agreement was made to pay for work done on a vessel when it was sold, the owner was entitled to a reasonable time to sell the vessel, and if he failed to sell it within a reasonable time the debt was enforceable. In Crooker v. Holmes, 65 Maine, 195, the maker of a note had promised to pay when he sold his residence, and it was held that the debt was absolute although the time of payment was indefinite. In DeWolfe v. French, 51 Maine, 420, the court held that when a debt is due absolutely and the happening of a future event is fixed as the time of payment, which future event does not happen as contemplated, the law implies a promise to pay within a reasonable time. In Button v. Higgins, 5 Colo. App. 167, it was held that a person who promised to pay for services when some real estate was sold should be held to pay within a reasonable time. Nunez v. Dautel, 86 U. S. 560, the court interpreted an obligation tO' pay a sum of money “as soon as the crop can be sold or the money raised from any other source” (p. 561) as an obligation to raise the money by one means or the other within a reasonable time, and that “it could not have been the intention of the parties that if the crop were destroyed, or from any other cause could never be sold, and the defendants could not procure the money from any other source, the debt should never be paid. Such a result would be a mockery of justice” (p. 562). Noland v. Bull, 24 Ore. 479, is quite like the case at bar. One who purchased a ranch for $2000 gave the seller an obligation to pay him $500, the balance of the purchase price of the ranch, as soon as the purchaser could sell the ranch for not less than $2500. The court held that the promise created an existing debt which the obligor was bound to pay and that it should be treated as a promise to pay within a reasonable time whether the property was sold or not.
The mortgage debt which the defendant assumed to pay became an actual liability when the property was transferred to her. The payment of the same was postponed to an indefinite time. The fact that a sale was not made for the sum named did not cancel, the debt. Neither did the destruction of the house discharge the obligation or any part of it. It only demonstrated that the contingency named as the time of payment was unlikely ever to happen. When the defendant, instead of rebuilding the house from the $2100 received as insurance,' placed a small house upon the lots costing only $700 it became apparent that the property could not be. sold for the price named. While the defendant was not required to reinvest the insurance money and restore the building as she might have done, her own act in erecting a cheap building on the premises made it reasonably certain that $3800 could not be derived from its sale. Under the circumstances we think a 'reasonable time for payment had elapsed and the court was justified in entering the judgment of foreclosure.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The action was to recover $1000 upon a fire insurance policy issued by defendant covering a barn on plaintiff’s farm in Greenwood county. The sole defense is, other insurance on the same property contrary to a provision in the policy that if there be or be taken other insurance without the company’s consent the policy would be void. The plaintiff admits the existence of another policy for $700 fire loss covering the same property issued by the Patrons Fire & Tornado Association, hereinafter referred to as the Patrons, company; but he claims that by the mutual mistake of himself and the agent of the Patrons company the second policy was written to describe the barn insured by defendant, when it should have been and was intended to be written to describe another barn owned by him which is situated on his residence property in the city of Eureka. He also admits that after the loss occurred he gave notice of a claim and sent proofs of loss to the Patrons company under its policy; but he contends that this was done before he discovered the mistake in issuing the policy. The jury returned a verdict in plaintiff’s favor upon which the court rendered judgment for the amount of the policy and $200 attorneys’ ftees. The defendant appeals.
There was substantially no conflict in the evidence. Plaintiff lives in Eureka and owns a farm in section 12, township 25, range 11, Greenwood county, on which was situated the barn covered by the policy in this case. The barn described was 40 x 60 feet, and sixteen to eighteen feet to the eaves. It was totally destroyed by fire on April 8, 1915. Plaintiff owned another barn on his town property, upon which the Patrons company had issued a policy covering $700 logs by fire' and the same amount by tornado. The policy described a barn 28 x 30 feet, posts twelve feet, cement foundation, in block 23 of Bit ler’s addition to Eureka. It expired January 25, 1915. In December, 1914, the secretary of the Patrons company in Olathe, Kan., sent to Mr. Wiggins, the local agent at Eureka, notice of the expiration of policy No. 10,044, held by Mr. Lovett, but with no other description save the amount, $1400. Mr. Wiggins called Mr. Lovett by phone and informed him of the notice, asking if he wanted, the policy renewed. Lovett said he did, and inquired what property it covered (he had other policies in the same company). The agent was in doubt, and after some discussion they concluded it must be the policy on the farm barn. Both Mr. Wiggins and Mr. Lovett testified that there was no intention to issue any policy except in renewal of the one about to expire. The policy that was issued, however, described a barn 28 x 30 feet, the dimensions of the town barn, but located it on the farm. The written application stated that the insured applied for renewal insurance and previously the Patrons company had no insurance on the farm barn.
There was, in our opinion, abundant evidence to establish plaintiff’s claim that the second policy was issued upon the barn at the farm by mistake of the company and himself. The intention of the parties controls. Policies which misdescribe the location or the property are issued frequently, but the courts find little difficulty in reforming the instruments so as to carry into effect the intent of the parties; and what the intent was is generally a question of fact for the jury to determine. (Hardware Co. v. Insurance Co., 97 Kan. 127, 154 Pac. 229.) The fact that in the application to the Patrons company the insured filled in the description of the location of the barn would not estop him to show that he and the company were, acting under a mutual mistake as to the policy about to expire. The description of the dimensions of the barn was, it seems, copied from the old policy by some agent of the company. The evidence makes it clear beyond question that the only authority he gave the local agent was to issue a policy covering the property insured in the old policy of the Patrons company. We can not concur in defendant’s theory that because the description of the property in the application for the Patrons policy was written by plaintiff, and because the local agent inspected the barn on the farm before sending in the application and never had his attention directed to the town barn, it follows that the Patrons policy could not be reformed. These matters were merely circumstances for the jury to consider with all the evidence in determining the real intention of the parties; and the court sq instructed. If the town barn had been destroyed by fire or tornado plaintiff might upon the same evidence have recovered from the Patrons company notwithstanding their policy described other property. (Hardware Co. v. Insurance Co., supra.)
The defendant requested the court to instruct that if the jury found that plaintiff held a policy in the Patrons company, the validity of which was in question, and thereafter made proof of loss under it, he must be held to have ratified it and to have elected to treat it as in force, and therefore could not recover in this action. The instruction was properly refused. The defendant’s position was not affected' or changed in the least by plaintiff’s attitude after the loss occurred, therefore estoppel can not be relied upon. The matters referred to in the requested instruction were, the court charged, to be taken into consideration by the jury in arriving at the true intention of the parties, which was the controlling question.
We find no error in the instructions, and the verdict and judgment are sustained by the evidence. The judgment will be affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
On October 27, 1914, Warren L. Moore recovered a lump-sum judgment for $2710, under the workman’s compensation act, against the Peet Brothers Manufacturing Company, on account of an injury received while in its employ, which was found to have resulted in permanent total disability, compensation being allowed for the full period of eight years — the statutory maximum. On October 27, 1915, the defendant filed a motion asking that the enforcement of the judgment be enjoined, and that it be modified, on the ground that the period of the plaintiff’s total incapacity had ceased, and that he was then earning.from $12 to $15 a week. The motion was denied, and the defendant appeals.
The vacation of the judgment is asked on the ground that it should not be enforced, because it is shown to be against equity and conscience by facts which could not have been developed before its rendition. A similar application was denied in Roberts v. Packing Co., 98 Kan. 750, 160 Pac. 221, for the specific reason that it sought the same relief as a statutory petition for a new trial on the ground of newly-discovered evidence, and could not be entertained because not made within a year from the date of the judgment. Here the motion was filed on the corresponding day of the following year just within the limitation period. (Commissioners of Smith Co. v. Labore, 37 Kan. 480, 15 Pac. 577.)
The affidavit by which the motion was supported sets out that “the plaintiff herein, Warren L. Moore, is now conducting a cleaning, pressing and tailoring business in the basement of the building wherein he lives, . . . and that the said Warren L. Moore is making from twelve ($12) dollars to fifteen ($15) dollars a week out of said business.” The question is presented whether the fact that an injured workman is able to, and does, conduct a business of his own, which returns him an income, is inconsistent with a finding that his injury resulted in his permanent “total incapacity for work” within the meaning of 'the compensation act.
The phrase quoted does not imply an absolute disability to perform any kind of labor. It requires a practical and reasonable' interpretation, as is illustrated by the familiar rule that inability to obtain work, caused by an injury, is classed as total incapacity. (Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244; Knowles’ The Law Relating to Workmen’s Compensation, 3d ed., p. 218; Note, 5 N. C. C. A. 735.) One who is disqualified from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment is ordinarily regarded as totally incapacitated. In case of partial. incapacity the statute provides for compensation approximating half the difference between the workman’s former average earnings and what he is able to earn after the accident “in some' suitable employment or business.” The words quoted are also found in the English statute, and are said to have been inserted. therein “in order to settle the question whether a workman, who has partially recovered • from his injury, is bound to accept any wqrk that may be offered to him, however unsuitable or distasteful, on pain of having to submit to a reduction in his weekly compensation.” (Knowles’ The Law Relating to Workmen’s Compensation, 3d ed., p.228.) The Scotch Court of Session has held that the profits of a business owned by the injured workman are not to be classed as earnings, the Lord President saying:
“It seems to me that the man’s wage-earning capacity is a perfectly different thing from the question of what profit he makes in a business; and the learned Sheriff, upon the statement of the case, has epnsidered nothing else. He has taken the business which this man ran. He has taken the net drawings, then he has deducted the expenses; he has allowed for interest upon capital at a fixed sum, and has deducted wages which he paid to other persons, and then the remainder he has taken as the wage-earning capacity. That seems to me a perfectly different thing. The amount remaining may be his wage-earning capacity, or it may not. But you can not get at the man’s wage-earning capacity by finding out what he is making in business. I agree that the question of what he is earning, or able to earn, is not to be so rigidly interpreted as it is when you are to look at nothing except the wages which he gets from some other person. It may be that the business he is in makes him his own master; but nqne the less his wage-earning capacity is what he would make if he was employed as a servant.
“I think the fallacy of the learned Sheriff-Substitutels method is very easily demonstrated by taking an example. Let me suppose that two workmen have been injured by the same accident, that they have both been injured' in the same manner, and that they each afterwards take up a public-house business. The one starts his public-house in the town A and the other starts his public-house in the town B; and the public-house in A, owing to the habits of the inhabitants, is a better business than the business in B. The result would be, if you treated the matter as the Sheriff-Substitute has done, that you would find that the profits made by the one man were very different from the profits made by the other man. Is it not almost absurd to suppose that that represents the wage-earning capacity? There is of course an element of luck in every business, which has nothing to do with the wage-earning capacity.
“In the circumstances which we find in this case I think the inquiry the Sheriff-Substitute had to make was in one sense a simple one, although to be decided roughly, as these things must be. If he had discovered how much work this man did in his public-house — that is to say, what he really worked at — -then I think that what he would have to apply his mind to would be, What would the services which this man actually rendered have been considered worth if, instead of serving himself, he had been serving somebody else? That is to say, What would he have got in the market if he had gone there for work in that business? (Paterson v. A. G. Moore & Co., 47 Scot. L. Rep. 30, 31. For other reports in which the case is published see L. R. A. 1916 A. 144, note 51.)
In England the Court of Appeal has held (reversing the county court) that in determining the amount to be allowed a workman for partial disability, account must be taken of the profits of a business which he set up after the accident, and which he carried on for himself. (Norman & Burt v. Walder, [1904] 2 K. B. 27. For other reports in which the case is published see L. R. A. 1916 A, 145, note 52.) What was decided, however, was that the subsequent earnings of the workman were not limited to wages received from another, but might include the fruits of his efforts when employed in his own behalf. ' The decision is consistent with the theory that only such part of the income of the business should be considered as is to be attributed to the personal exertions of the workman, and this view of its effect was taken in a dictum in a later case decided by the Kings Bench Division where Fletcher Moulton, L. J., said:
“The decision in that case is, of course, binding upon me, and I do not wish to express any dissent from it; but at the same time I do not understand it to mean that you can, in all cases, take the actual profits of a business which an ex-workman has set up as ‘earnings’ for the purpose of calculating compensation. It would be most unfair so to do as a general rule; and the unfairness might tell against the workman or against the employer according to the circumstances of the case. The workman might be employing capital of his own in the business, the profits of which the employer ought not to be able to.appeal to in reduction of compensation for incapacity; and, on the other hand, the business might be unsuccessful, and the profits might inadequately represent the earning power of the workman as a workman. I am inclined to think that the phrase in paragraph 3 ‘the average weekly amount which he is earning or is able to earn in some- suitable business after the accident’ means in such a case the value of the work which the workman is doing in his own business; that is to say, the wages that he would have to give to a suitable man for performing the services therein which he himself is performing.” (Calico Printers’ Association, Limited, v. Higham, [1912] 1 K. B. 93, 102.)
We find no American cases in which the question has been referred to. We do not consider the provision of the compensation act relating to the earnings of an injured workman “in some suitable employment or business” as implying that the income derived from a business which he owns is to be regarded in itself as a measure of his earning capacity or degree of disablity. i Assuming that money which he receives as the direct result of his personal labor, while working in his own behalf,, and not as the employee of some one else, is to be given the same effect in that connection as though it came to him for services rendered to an employer, that is the extent to which the revenue he may receive otherwise than as wages should be allowed to affect the matter.» The return on any capital he may have, although augmented by his personal attention in looking after the business in which it is invested, clearly is not an element to be considered in the administration of! the compensation act. Nor do we think such consideration should be given to the mere direction of the operation of a business which he owns — its control and management as proprietor. If it had been shown in this instance that the plaintiff personally performed a part of the work of cleaning, pressing and tailoring, a very different question would be presented. Possibly any portion of his income that could be traceable to such work on his part should be given the same effect as though he received it as wages. But the showing made is merely that he is “making” a certain sum weekly out of the business which he'is “conducting” as owner, and this might be the case although he were a complete physical wreck. ' A‘judgment based on a finding that a workman’s inj ury has resulted in his total disability to work can not be said to be inequitable or against conscience ■because he has the thrift and intelligence to provide for his support by investing such means as he has in a business carried on by the labor of others under his direction. ^
The decision - of the district court overruling the motion is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This w!as an action by J. F. Corley against M. F. Ehlers to compel specific performance of what is alleged to be a contract for the sale of real estate. The case was determined upon the allegations of the petition, which was in two counts.
It was alleged in the first cause of action that the defendant authorized Thomas Darcey to sell some real estate which he owned, by writing him the following letter:
“I have priced those lots at $150, and unless I am a big Fool they are cheap at that, wonder if you could sell Mrs.' Hines the lots south of her. I believe I have about 8 25-foot lots; would take $400.00 net to me.”
It was further alleged that plaintiff had become the husband of the Mrs. Hines mentioned; that he had accepted the offer and tendered the price; but that defendant refused to convey.
The second cause of action, after making the averments of the first count a part of the second, alleged that plaintiff, pursuant to the authority granted in the letter to the agent, entered into a written contract with the latter to purchase the land, but that the defendant refused to convey. It was further alleged that defendant never denied or questioned the agent’s authority to do the acts mentioned, but gave other reasons for not complying with the contract. The contract recited that the agreement was between Thomas Darcey, real estate agent, and J. F. Corley, and was signed by the agent thus: “Thos. Darcey for M. F. Ehlers,” the defendant’s name appearing nowhere else upon the document. The court overruled the demurrer as to the first count, but sustained it as to the second.
As to the first count of the petition, the question presented is whether the defendant’s letter to Darcey is such a proposal to sell real estate as would become binding upon acceptance by the plaintiff. To avoid the statute of frauds it was necessary that the contract should be in writing and a proposal which may be converted into a contract by acceptance should be definite and certain so that the intention of the parties with respect to the terms of the contract may be ascertained. Did the defendant write his letter as a step in the formation of a contract; and did the expressions he used evince an intention to enter into a contract relation with the plaintiff ? The court can not infer a contract where the parties did not intend to 'make one. The first part of the letter refers to real estate not involved in this action. Defendant then expresses curiosity as to whether Darcey could sell to. Mrs. Hines the lots which lie south of her. He does not expressly authorize him to sell the lots, but wonders whether or not a sale could be made to her. The language used implies both curiosity and doubt. Further, he did not appear to be positive as to the extent of his holdings, but said: “I believe I have 8 25-foot lots.” The real estate mentioned in the petition is described by metes and bounds and appears not to have been platted or divided into Tots. Then he adds: “Would take $400.00 net to me”— language which indicates a proposal to Darcey to procure a purchaser for the lots rather than to have been communicated as an offer to sell and convey them to Mrs. Hines. There is indefiniteness as to the identity of the ground, but perhaps that could be made certain by the reference to the lots south of Mrs. Hines which, if the contract were otherwise sufficiently definite and complete, might be interpreted as the lots south of her property. If the letter could be interpreted as authorizing an offer to sell the lots, it appears to have been intended for Mrs. Hines and not for the plaintiff, who is asking specific enforcement. The rule is that if a proposal is made to a particular person it can be accepted only by the person to whom it is made. (39 Cyc. 1203.) The fact that the plaintiff subsequently married Mrs. Hines did not give him a right to make a binding acceptance of an offer made to her without the consent of the one making the offer. We think the tvriting can not be regarded as an offer that could be converted into a binding contract by the acceptance of the plaintiff.
Complaint is made of the ruling of the court sustaining the demurrer to the second count of the petition. It is obvious that Darcey had no authority to make a contract for the sale of the land. As has been state¡d, there is some basis for the contention that the statements in the letter authorized Darcey to procure a purchaser for the defendant’s lots, but even if the authority had been more definite and complete it would not follow from the use of the word sell employed in the letter that he was authorized to make a binding contract of sale of the real estate. ’ '
In Brown v. Gilpin, 75 Kan. 773, 90 Pac. 267, it was said:
‘“Most of the cases that seem to deny that power to contract follows from authority to sell in fact go no further than this: That communications from the owner to a real-estate broker with respect to the sale of lands will be regarded as giving the agent only the authority usually incident to-his employment — that is, to find a purchaser — unless a different intention is clearly shown; and- that no wider power than that is necessarily indicated by the use of the words ‘to sell’ or ‘to make a sale’ in describing the purpose for which the agent’s services are engaged, inasmuch as in common parlance ‘to sell’ is often used as meaning to negotiate or arrange for a sale and a sale is said to be made when its terms have been orally agreed upon.” (p. 782.)
There is nothing here to show an intention by defendant to authorize Darcey to go further and actually make a binding contract to sell. The authorities collated in the case cited sustain the ruling of the trial court on this count, that Darcey was not vested with authority to authorize him to execute a contract of sale. The allegations in the petition do not afford a basis for ratification of the acts of Darcey or an estoppel against the defendant. The averment that defendant had not questioned the authority of Darcey seems to be answered' by the contest of this proceeding. The státement that another than himself had an interest in the lots does not set forth the elements of estoppel. It is not alleged that plaintiff entered into the contract of purchase relying on the statements of the defendant beyond what was contained in the let ter and that authority so far as it went appears to have been within the reach and knowledge of the plaintiff.
The decision of the court in overruling the demurrer to the first cause of action stated in the petition is reversed and the decision in sustaining the demurrer to the second cause of action is affirmed. | [
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The opinion of the court was delivered by
Porter J.:
This is an action commenced against the guardian of an insane person and a surety on her bond. The plaintiff appeals from a judgment on the pleadings in favor of the surety company. No service was obtained upon the defendant guardian and the only parties to the appeal are the ■plaintiff and the surety.
In September, 1909, plaintiff was adjudged insane by the probate court of Sedgwick county and committed to the state hospital where he remained until June, 1913, when he was paroled. In October, 1913, the probate court made an order removing his disabilities and restoring him to his rights. At the time he was adjudged insane Jennie L. Sparr, his wife, was’ appointed guardian of his estate, and subsequently the defendant surety company became surety upon her bond to the amount of $500. The guardian filed an inventory of the ■estate, charging herself with having received certain property, .and later filed her first annual report, which was approved by the probate court. On the 14th day of September, 1911, she filed a final report representing to the court that all the assets iof the estate had been exhausted and asking her discharge and the release of her surety. The probate ■ court approved and confirmed the report and discharged her as guardian. In November, 1913, after plaintiff’s disabilities had been removed, he filed in the probate court exceptions to the final report of the guardian and the probate court made an order that notice of the hearing of the exceptions be given to the guardian and the surety by publication, the surety company being a nonresident corporation and the guardian having removed from the state. At the time fixed for the hearing the probate cofirt, after approving the service by publication, found that the guardian had not accounted for the sum of $500 due the estate; that her reports were incorrect, untrue and fraudulent; the order appoving them and discharging her was set aside and she,was ordered to pay the amount due George W. Sparr. Thereafter and on August 10, 1915, this suit was commenced against the guardian and the surety company to recover on the bond. There was service upon the surety company, but no service upon the guardian.
All the facts being matters of record were set forth in the petition of the plaintiff and the answer of the surety company, and the court sustained a motion for judgment upon the pleadings in favor of the surety company.
The order made by probate court discharging and releasing the guardian was a final judgment of a court of competent jurisdiction and not subject to collateral attack. However erroneous it may have been, it can not be held void. (Musick v. Beebe, Adm’r., 17 Kan. 47; Smith v. The Eureka Bank, 24 Kan. 528; Davis v. Hagler, 40 Kan. 187, 19 Pac. 628; Proctor v. Dicklow, 57 Kan. 119, 45 Pac. 86; Wolfley v. McPherson, 61 Kan. 492, 59 Pac. 1054.) There are different methods by which the final settlement might have been attacked for fraud. Plaintiff might have proceeded under the provisions of sections 596 and 605 of the civil code. (Wolfley v. McPherson, supra.) The proceeding, however, by which plaintiff sought to set aside the final report and discharge of the guardian, was upon service by publication, and there is no statute authorizing such service in a proceeding of that kind, which merely sought relief on the ground of fraud, and the relief consisted of a personal judgment against the guardian. There was no property within the jurisdiction of the court, no res upon which jurisdiction could be founded. (See Wdrd v. Benner, 89 Kan. 369, 131 Pac. 609.)
Aside from the question of service, the plaintiff attempts to justify the proceedings in the probate court opening up the guardian’s final report and discharging her, by the claim that sections 3595 and 4848 of the General Statutes of 1909, together with section 18 of the civil code, authorize the procedure followed. Section 3595 reads as follows:
“When the account is settled in the absence of any person adversely interested, and without actual notice to him, the account may be opened on his filing exceptions to the account at any time within six months thereafter.”
Section 4848, which is section 30 of the act relating to lunatics, gives the probate court full power to control the guardian in the management of the estate, and provides that the court “may enforce and carry into execution its orders and judgments in the same manner as in cases of administration.” Assuming, without deciding, that section 4848 adopts the same procedure for controlling the estates of insane pern sons as that provided in the administration of the estátes of deceased persons, and assuming, without deciding, that section 3595 applies so as to authorize the opening up of the account of the guardian of a lunatic by filing exceptions at any time within six months after the settlement of the account, it is very clear that section 3595 goes no further than to fix a time within which exceptions may be filed. It does not purport to give a right of action, nor does it fix the time within which an action must be brought. The plaintiff, however, contends that the six months within which he was permitted to file exceptions is extended to one year from the time his disabilities are removed and relies upon section 18 of the civil code. But this section has reference only to the period within which certain civil actions may be brought. It does not purport to extend the time for opening up accounts in the administration of estates. The filing of the motion to open up the account of the guardian was not the commencément of an action; it was merely the filing of a motion asking an order in a proceeding that had already been commenced. The judgment in the probate court releasing and discharging the guardian, being a final judgment of a court of competent jurisdiction, is still in full force and effect as to the guardian. It has never been appealed from nor has it been set aside in any manner, provided by law. There was no service upon the guardian; the attempted service by publication not being authorized by any provision of the statute, the probate court acquired no jurisdiction, either of the guardian or surety.
The facts set forth in the petition with respect to the proceedings whereby the probate court attempted to open up the guardian’s final report and to release and discharge her, were mere surplusage, and notwithstanding plaintiff’s attempt to found his cause of action upon those proceedings and to sue as upon a judgment finding there was due him from the guardian a fixed sum, still the petition sufficiently alleged facts constituting fraud in procuring the release; and it can not be doubted that the equitable.power and jurisdiction of the district court extends to just such a case. (Pickens v. Campbell, 98 Kan. 518, 169 Pac. 21, and cases cited in the opinion.) The defendant surety company concedes this, but contends that this action can not be maintained against the surety alone. In those courts which hold that an accounting and settlement are necessary before an action on a guardian’s bond may be maintained against the surety, it has been held that where a guardian dies insolvent in another state and no personal representative has been appointed, an accounting is impossible or impracticable, and the action may be maintained against the surety. (Otto v. Van Riper, 164 N. Y. 536.) In The Commonwealth v. Wenrich, 8 Watts (Pa. Supr. Ct. 1) 159, it was held that where an executor or administrator absconds, conceals himself, or resides beyond the jurisdiction of the court, an action will lie against the surety on his bond, without resort, in the first instance, to the principal. It was said in the opinion:
“A different rule would greatly embarrass legatees and creditors. . . . We must- avoid the danger of a fraudulent combination between the principal and surety, as the principal might be induced to withdraw from the jurisdiction ,of the court, or to conceal himself for the purpose of preventing a suit against the surety.” (p. 162.)
Although it is said in 21 Cyc. 2401, that “there is considerable diversity of opinion as to the necessity of an accounting and settlement by a guardian as a condition precedent to an action at law on his bond,” and that the weight of authority is that there must be an accounting and settlement before the action can be maintained, this court, in Hawk v. Sayler, 83 Kan. 775, 112 Pac. 602, held (following Mitchell v. Kelly, 82 Kan. 1, 107 Pac. 782) that an action for a balance which became due a ward when he reached the age of majority, and which it was the duty of the guardian to pay him then, could be maintained against the surety notwithstanding the fact that the guardian had filed an account in the probate court claiming certain credits against the ward. It was held that a final settlement of the guardian’s account is not a condition precedent to maintaining an action against the surety. In Mitchell v. Kelly, supra, the syllabus reads as follows:
“An action may be maintained in the district court against the administrator of a guardian who converted his ward’s money, became insolvent and died, and against the sureties on the guardian’s bond, without a previous settlement of the guardian’s accounts in the probate ■ court.”
In Fulgham v. Herstein, 77 Ala. 496, it was held that in the absence of any statutory provisions, the death of the guardian and the insolvency of his estate furnished a sufficient excuse for the omission to make his personal representative a party to.an action on the guardian’s bond to compel an account and •settlement; and further it was held that under a new statute authorizing a suit against one or more of several joint obligors without' joining the others, the action could be maintained without alleging insolvency of the estate of the deceased guardian. In The State, ex rel., v. Slevin, 93 Mo. 253, the guardian was joined as a defendant, but no process was served upon him, and it being shown that he was a nonresident of the state, it was held that the suit might proceed against the sureties alone. In Mitchell v. Kelly, 82 Kan. 1, 107 Pac. 782, the personal representative of the deceased administrator was a party to the action, and besides, there was no judgment of the probate court or of any court releasing and discharging the administrator.
The provisions of section 38 of the civil code permit the plaintiff, at his option, to sue all or any of the persons severally liable on the same obligation. Therefore, the action in the present case could be maintained against the .surety alone were it not for the fact that a final judgment of a court of competent jurisdiction has released and discharged the guardian. In Farmers’ and Mechanics’ Bank v. Kingsley, 2 Doug. (Mich.) 379, it was said:
“It would be as difficult for me to conceive of a surety’s liability continuing after the principal obligation was discharged as of a shadow remaining after the substance was removed, (p. 403.)
“ ‘Without a principal there can be no accessory, nor can the obligation of the surety, as such, exceed that of the principal.” (1 Brandt, Suretyship arid Guaranty, 3d ed., § 163.)
In case plaintiff recovered a judgment in this action against the surety, the latter could not recover from the guardian, because the judgment of the probate court releasing and discharging her from all liability would be a complete defense to any action brought against her as guardian. That is a final judgment of a court of competent jurisdiction, not appealed from nor set aside in any lawful proceeding.
For the reasons stated plaintiff can not maintain this action and the judgment is affirmed. | [
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The opinion of the court was delivered by
MASON, J.:
Stanley Odrowski was injured while in the employ of Swift & Company. He recovered a judgment under the workmen’s compensation act, and the defendant appeals.
1. About four months after his injury the plaintiff had signed a writing (which was filed with the clerk of the district court) purporting to release the company from all liability, in consideration of $45 paid him at t,hat time and of $103.50 which he had already received. He pleaded, and the jury in effect found, that he had been induced to execute this instrument by statements made to him, by a physician who represented the company, minimizing the extent of his injuries. A release procured by such means can, in some circumstances, be set aside. (Ladd v. Railway Co., 97 Kan. 543, 155 P'ac. 943; 2 Black on Rescission and Cancellation, § 390.) But to justify a finding that it was so procured, it is necessary that there should be evidence not only that false representations were made, but that they were relied upon. Here the plaintiff not only failed to testify that he was induced to sign a release in full by misstatements as to his condition, but he also showed affirmatively that this could not have been the case, by testifying that he signed it not knowing that it was a release, not having read it. The release must, therefore, be given effect as a bar to a recovery, unless some basis' exists for setting it aside other than that relied upon by the jury.
2. There was neither pleading nor proof of any misrepresentation of the contents of the writing which the plaintiff signed, nor of any fraud practiced by which he was led to sign it without reading. The jury found that he was able to read and write and understand the English language. The modern tendency is to extend, rather than to restrict, the power of courts to grant relief against contracts induced by unfair dealing. (1 Black on Rescission and Cancellation, preface, p. v. and § 59.) But the fact that a person does not read a writing which he signs is not a ground for avoiding its effect, where he is able to do so, where no obstacle is presented, and where no misrepresentation is made as to its contents. (2 Black on Rescission and Cancellation, § 384.)
3. The compensation act does not authorize the setting aside of such an instrument as that here involved upon any less showing than would be required in the case of any contract of a similar character. The statute provides that agreements for compensation, “other than a release,” must be in the form prescribed (Laws 1911, ch. 218, § 23) ; that arbitration may be had under certain rules (§ 24); that “every agreement for compensation and every award shall be in writing, signed and acknowledged” (§ 27) ; that “every release of liability hereunder, every agreement for or award of compensation,” must be filed (§28.) It then gives the district court jurisdiction to cancel “such agreement or award” on certain conditions. (§29.) These provisions seem to indicate a legislative purpose to reserve to the courts a control over “agreements for compensation,” and “awards,” but not over “releases.” This view is strengthened by the provision of a subsequent section that “an action to set aside a release or other discharge of liability on the ground of fraud or mental incompetency may be joined with an action for compensation under this act.” (¶ 36.) If, however, a release is deemed to be within the scope of the section granting to the court the power of cancellation, it must be because it is covered by the term “agreement”; it can not be regarded as an “award,” since that word is-consistently used throughout the statute to designate the result of an arbitration as distinguished from an agreement. And while section 29 authorizes an award to be set aside because of being grossly inadequate or grossly excessive, it gives no such authority with respect to an agreement, which it permits to be canceled for no other cause (pertinent to the facts 6f this case) than “fraud or undue influence.”
4. The contention is made, however, that the release is not binding, because not supported by a sufficient consideration, for the reason that the amount paid to the plaintiff by the defendant was exactly what was then due as fixed by the compensation act, under the facts as established by the findings of the jury. In order that the payment should, upon this theory,.be regarded as insufficient to support a contract, it is not enough that the company should in fact have been under a legal obligation to make it; to have that effect the existence of the obligation must have been admitted. Otherwise the settlement of a controversy would itself have constituted a valid consideration. (Shellberg v. McMahon, 98 Kan. 46, 157 Pac. 268; 1 C. J. 551, 554; 1 Enc. L. & P. 626, 686; 1 R. C. L. 194, 198.) Here it is not affirmatively shown that the defendant admitted its liability for the amount paid. But in any event the rule has been established in this jurisdiction that where there is a disagreement as to the amount of an indebtedness the payment by the debtor of a less amount than that claimed affords a sufficient consideration for a release of the entire demand, although he admits his absolute and immediate liability for the amount he pays. (Neely v. Thompson, 68 Kan. 193, 75 Pac. 117.) And this view is in accordance with the later tendency of- the courts, although there is still a division of judicial opinion on the subject. (1 R. C. L. 196.) The release executed by the plaintiff can, therefore, not be set aside as unsupported by a valid consideration.
5. These considerations require a judgment for the defendant. It is, therefore, unnecessary to discuss or determine any of the other questions which have been argued, except for the purpose of preventing an earlier decision being given an effect not intended. In the present case the trial court allowed a recovery for partial incapacity on the basis of twenty-five per cent of the plaintiff’s prior average weekly earnings, although this amounted to more than half the diminution in his earning capacity, as found by the jury. The defendant maintains that this is contrary to what was decided in the case referred to (Girten v. Zinc Co., 98 Kan. 405, 158 Pac. 33). There the judgment included an allowance for partial incapacity for 350 weeks, amounting to $1503.64. This was attacked by the defendant as too large. The plaintiff responded to the contention by saying that, under the evidence, the court would have been justified in allowing compensation for partial disability for 410 weeks, and that, therefore,.the defendant was in no posi tion to complain. This court held that the period fixed by the jury was controlling, and allowed a recovery for 350 weeks at $3.41 a week, that being half of the amount by which his earning capacity had been found to be diminished, without observing that this rate was less than the statutory minimum of twenty-five per cent of his former average weekly earnings, without the meaning of that part of the statute having been challenged, and without any intention of passing upon its effect. The language of the opinion seems sufficiently to indicate this, but to guard against any misapprehension, it is now distinctly declared that in that case it was not decided that the weekly allowance for partial incapacity may ever be less than twenty-five per cent of the former average earnings.
The judgment is reversed and the cause remanded with directions to render judgment for the defendant. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiffs sought to recover an undivided one-seventh interest each in certain real property. Judgment was rendered in favor of the defendants, and the plaintiffs appeal.
Katrina Hladky owned certain real property in Shawnee county. The plaintiffs and defendant Joseph F. Hladky are her children. Defendant Joseph F. Hladky lived with Katrina Hladky on the real property at the time of, and for some time prior to, her death. Some months before she died she executed a deed conveying the real property to Joseph F. Hladky, and at the same time executed a will by which she devised the same real property to him and made certain be quests to each of the plaintiffs. The substance of the material allegations of the petition is that at the time of making the deed and will Katrina Hladky was old and weakened by disease, and was of unsound mind; that she was dependent on Joseph F. Hladky for advice and counsel; that a confidential relation existed between Katrina Hladky and Joseph F. Hladky, and that he exercised undue influence over her in procuring the execution of the deed and will; and that he advised the making of the will and superintended its preparation.
The jury answered special questions as follows:
“1. Was Katrina Hladky on the 11th day of October, 1914, of sound mind? Answer. Yes.
“2. Could Katrina Hladky on the 16th day of October, 1914, talk in the English language sufficiently to make herself understood about the matters contained in the will and deed in controversy? Answer. Yes.
“3. Did Katrina Hladky have a stroke of paralysis on and prior to the 16th day of October, 1914? Answer. Yes.
“4. Did Joseph Hladky act as interpreter between Katrina Hladky, and A. E. Moore in the conversations, leading up to the preparation of and writing of the will and deed in controversy? Answer. Yes, all that was necessary.
“5. Did Joseph Hladky for several years prior to the death of his mother receive all of the income from the farm owned by his mother at the time of her death? Answer. Yes, and paid taxes and kept up improvements.
“6. Was Joseph Hladky the confidential agent and advisor of his mother during the last few years of her life, and at the time of the writing and preparation of said will and deed? Answer. Yes, so far as one was necessary.
“7. Did Joseph Hladky at the time of the writing and preparation of said will and deed occupy a position of confidence and trust to his mother? Answer. Yes.
“8. Did Katrina Hladky have any independent advice with reference to the will in controversy other than Joseph Hladky? Answer. Yes. •
“9. If you answer number 8 in the affirmative, then state fully who gave Katrina Hladky such independent advice in regard to the said will, what advice was given to her and when such advice was given.. Answer. Mr. Zima advised her that to make a will valid, she must make a deed to the property and such advice was given prior to October 16th, 1914.
“10. Was it the intention of Katrina Hladky on the 16th day of October, 1914, to pass the title to her farm to Joseph Hladky and to deprive herself of the title to said premises during her lifetime? Answer. No.
“11. Did Katrina Hladky know and understand on the 16th day of October, 1914, the provisions of the will and its contents? Answer. Yes.
“12. If you answer question number 11 in the affirmative, then state who, if any one explained to Katrina Hladky the meaning, contents and provisions of the will. Answer. Mr. Moore.
“13. Was Katrina Hladky enfeebled by old age and sickness, and partial paralysis at the time of the execution of said will? Answer. Yes.
“14. Was the execution of the will of Katrina Hladky procured by the exercise of undue influence? Answer. No.
“15. Was the execution of the deed of Joseph Hladky obtained by undue influence? Answer. No.
“16. Did Katrina Hladky express her own will and desire in making and signing the will drawn by A. E. Moore? Answer. Yes.
“17. At the time of signing the will was Katrina Hladky under any influence amounting to coercion, compulsion or constraint which destroyed her free agency? Answer. No.
“18. On October 16th, 1914, was Katrina Hladky in such mental condition as to be able to know and understand the business in which she was engaged and the disposition of her property and the manner in which she was willing and disposing of the same? Answer. Yes.”
The case is presented to this court on the petition, answers, findings of the jury and judgment of the trial court. The plaintiffs argue that the findings show that Katrina Hladky was so advanced in age, weakened in body and mind, and dependent upon the advice, counsel and guidance of Joseph F. Hladky, that she was incapable of making the deed and will; that in making the deed and will she was advised by Joseph F. Hladky, and denied the counsel and advice of any disinterested third party; that there was no consideration for the deed and .will; that there was such a confidential relation between Katrina Hladky and Joseph F. Hladky that he could persuade her in all her business affairs and prevent her from exercising her own will and discretion; that Katrina Hladky did not realize, and was not aware of, the full force and effect of her acts, and did not understand the result of the same. These are questions of fact, and each one is answered by the findings of the jury, contrary to the contentions of the plaintiffs. The findings are not contradictory to each other; they are entirely consistent with each other. They support the judgment rendered and it is affirmed. | [
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Elliott, J.:
The State appeals the trial court’s suppression of evidence found in Robin Richmond’s purse following a car stop.
We affirm.
Richmond was charged with possession of cocaine with intent to sell, K.S.A. 2001 Supp. 65-4161(a). Richmond’s motion to suppress was based on her arguing officers searched her purse, where cocaine was found, without probable cause and without her consent.
The parties agree on the underlying facts but dispute the legal effect of the search as applied to the undisputed facts.
Since this appeal is fact sensitive, we provide tire trial court’s comprehensive factual findings as follows:
“[L]ocal KBI agents on July 26 of the year 2000 received information from an F.B.I. agent by the name of Jeff Harris that the defendant and her husband Lee Richmond were distributing cocaine in this area. Agent Harris indicated this information came from a reliable informant whom he did not identify.
“No. 2, the confidential informant accurately described the car the defendant normally drove from the Kansas City area down to the Pittsburg area. The informant described this as a burgundy and pearl colored Cadillac.
“At a task force meeting on July 26, 2000, KBI Agent Chad Commons relayed the above information. Terry Davis of the Pittsburg Police Department was at the meeting and advised he had conducted a prior investigation of the defendant in 1999 for the alleged sale of drugs. Davis related that an informant, who was buying drugs from a Charlotte Buckley, advised that a black female by the name of Robin Richmond was delivering crack cocaine from Kansas City to Buckley s residence on 18th Street in Pittsburg.
“Finding of fact No. 4, at the meeting Davis further related that he was contacted by die Crawford County Sheriffs Office in 1998 and was advised that the defendant was supposedly selling crack cocaine from a room in the Super Eight Motel in Pittsburg. Davis later verified that a rental car registered to a Robin Richmond had stayed at that motel.
“No. 5, Davis also related that in tire past he had received a call from an anonymous female who stated that the defendant was coming down from Kansas City to an apartment at 102 S. Locust in Pittsburg in a white Nissan Maxima to package and sell crack cocaine.
“Fact No. 6, Davis advised that he had conducted surveillance on the apartment at 102 S. Locust in January of 1999, and had indeed observed a black female exit a white Nissan, enter the apartment, and later leave the premises. The tag on the Nissan was registered to a Robin Richmond and the driver of the vehicle drove in a zigzag pattern in what Davis believed was an attempt to avoid or lose a possible tail.
“No. 7, Davis stated that he also had called the Kansas City Missouri police and had been told that the defendant had been arrested for possession of cocaine in the past, and allegedly lived in a crack house. . . .
“Finding of fact No. 8, Agent Commons was advised by Agent Shawn Campiti on August 4th of the year 2000, pursuant to anonymous tip received by Campiti that tire defendant was in Pittsburg driving a gold colored Intrepid automobile, that she was going to be in the 100 block of West Third Street selling cocaine. Campiti surveilled that address and observed a black female in a gold Intrepid enter a residence for about 30 minutes. When the individual left the residence she drove around in a zigzag fashion in an apparent attempt to avoid any possible tail. The informant gave an accurate description of the clothing worn by the subject female.
“No. 9, Detective John Austin advised Commons that an informant had told Austin that the defendant sold drugs in Pittsburg. The informant was also aware of the defendant’s evasive driving techniques and the locations where the drugs were allegedly sold. The information was compatible with the information related by Davis. Detective Austin further verified through city water department files the address of an individual who had allegedly bought drugs from the defendant. This address had been related by the informant to Austin.
“No. 10, Commons and Campiti observed the gold Intrepid at the same address in the 100 block of West Third Street on September 22, 2000. Upon leaving this address, the defendant again drove in an evasive manner by backtracking and going down cul-de-sacs, again, in an apparent attempt to flush out anyone who might be following her. The decision was made to stop the defendant’s vehicle and the agents therefore summoned a marked sheriff s office patrol car to make the stop because the agents were in an unidentified vehicle. The defendant was not observed to be violating any laws — any traffic laws prior to her stop.
“The defendant’s vehicle was stopped so agents could get permission to search. The defendant was alone in the car and there were six law enforcement officers at the scene. The defendant was not free to leave. Approximately five to 10 minutes after the stop the defendant was asked for permission to search the vehicle to which she consented. The search of the vehicle revealed no contraband. Approximately 30 minutes after the vehicle stop, and after the vehicle search was completed, the defendant was asked for permission to search her purse. The defendant refused permission to search her purse. The purse was nevertheless searched and certain contraband was found in her purse.
“No. 12, the defendant was calm, cooperative, and did not display any aggression. At some point in time during the search of the vehicle and the purse the defendant was placed in handcuffs. The officers did not fear for their safety during the stop and subsequent searches. The defendant maintained the physical possession of her purse on her arm during the search of the vehicle.” (Emphasis added.)
As noted above, the trial court granted Richmond’s motion to suppress.
The State contends it had probable cause to search the purse based on reliable information collected for about 2 years. Specifically, the State argues exigent circumstances permit the search of a readily mobile car.
On appeal, we ordinarily give great deference to the trial court’s findings of fact on suppression issues, but the ultimate question of suppression is a legal question requiring independent appellate determination. See State v. Kimberlin, 267 Kan. 659, 661-62, 984 P.2d 141 (1999).
Warrantless searches are unreasonable, subject to a few well-defined exceptions. State v. Houze, 23 Kan. App. 2d 336, 337, 930 P.2d 620, rev. denied 261 Kan. 1088 (1997). Among the recognized exceptions is probable cause to search with exigent circumstances. State v. Box, 28 Kan. App. 2d 401, 404, 17 P.3d 386 (2000).
In the present case, the State relies on exigent circumstances, which allow a warrantless search where there is probable cause for the search and exigent circumstances justify an immediate search. See State v. Platten, 225 Kan. 764, 769, 594 P.2d 201 (1979).
Exigent circumstances may allow the warrantless search of a car when probable cause has been established to justify a search. Carroll v. United States, 267 U.S. 132, 149, 69 L. Ed. 543, 45 S. Ct. 280 (1925); State v. Jaso, 231 Kan. 614, Syl. ¶ 2, 648 P.2d 1 (1982). However, exigent circumstances do not include situations where only a mere possibility exists that evidence could be destroyed or concealed. State v. Hardyway, 264 Kan. 451, 465, 958 P.2d 618 (1998).
Once probable cause is established concerning the existence of contraband in a vehicle, then any container capable of containing the contraband may ordinarily be searched. State v. MacDonald, 253 Kan. 320, 325, 856 P.2d 116 (1993).
In the present case, we are not concerned with probable cause for the initial search because Richmond consented to the search of her car. See State v. Kriegh, 23 Kan. App. 2d 935, 938, 937 P.3d 453 (1997); State v. Schmitter, 23 Kan. App. 2d 547, 556, 933 P.2d 762 (1997). Under the facts of this case, Richmond’s consent to search her car was voluntary.
But while officers searched Richmond’s car, she was allowed to keep her purse, and it was not in the car during the search. When the officers asked Richmond to consent to the search of her purse, she refused. The scope of a search is generally defined by its expressed object. Florida v. Jimeno, 500 U.S. 248, 251, 114 L. Ed. 2d 297, 111 S. Ct. 1801 (1991).
The standard for measuring a suspect’s consent is one of “objective” reasonableness — what would the typical, reasonable person have understood by the exchange between the officer and the suspect. 500 U.S. at 251,
The question in the present case, then, becomes whether the typical, reasonable person would think, based on the exchange between police and Richmond, that Richmond consented to the search of the purse which she always had in her possession. Under the trial court’s factual findings, Richmond effectively withdrew her consent with respect to any search of her purse.
What transpired between Richmond and the police is not disputed. At the preliminary hearing, Special Agent Commons testified as follows:
“Q. So you exited the car and did you ask her if you could search her purse?
“A. Yes.
“Q. And did she consent to search the purse?
“A. No.
“Q. And how many times did you ask her if you could search her purse?
“A. More than once. Probably two, maybe three times. I can’t tell specific.
“Q. And did you ultimately search the purse?
“A. Yes.
“Q. Describe how you came to search the purse?
“A. I had asked her for insurance information for the vehicle, she stated she did not have it. I asked her to look in her purse again. She looked briefly, had her purse sitting on the trunk of the car and she looked for a second, could not find it or did not know where it was in her purse. And then I asked her to leave her purse on the car and step back to the other officers.”
Richmond expressly and narrowly limited the scope of her consent to search; Special Agent Commons exceeded the scope of Richmond’s consent and thereby violated her rights by searching her purse. The trial court properly granted Richmond’s motion to suppress the evidence found in her purse.
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Green, J.:
Prairie State Bank (Prairie State) appeals from the trial court’s judgment determining that Deutsche Financial Services Corporation’s (DFS) prior perfected security interest in a modular home was superior to the real estate mortgage of Prairie State Bank. On appeal, we must determine the issue of priority. We conclude that DFS’s prior perfected security interest in the modular home takes precedence over Prairie State’s real estate mortgage. As a result, we affirm.
Superior Housing, Inc., (SHI) is in the business of selling mobile homes, manufactured homes, and modular homes. In 1991, SHI entered a floor plan financing arrangement with ITT Commercial Finance Corporation (ITT). In 1995, ITT changed its corporate name to Deutsche Financial Services Corporation (DFS). Under the terms of the financing agreement, DFS loaned SHI money to purchase its inventory of homes. Under paragraph 23 of the agreement, SHI granted DFS a security interest in its inventory of homes and the proceeds realized from the sale of the inventory. The agreement also provided that every time SHI sold a home, SHI was required to pay DFS the full amount of any principal balance owed on the home, together with finance charges and other related charges.
On April 15, 1991, DFS properly perfected its security interest by filing a proper UCC-1 financing statement covering SHI’s inventory and proceeds with the Kansas Secretary of State. On February 23, 1996, DFS filed a proper UCC-3 for the purpose of continuing its original April 15, 1991, filing.
In August 1999, under a note and mortgage, Prairie State issued SHI a check in the amount of $53,000. The disbursement was for a modular home that was part of SHI’s inventory and subject to DFS’s security interest. SHI later affixed the modular home to real estate which had been mortgaged to Prairie State. Previously, DFS loaned SHI the sum of $45,157 for the modular home when it was added to SHI’s inventory. SHI planned to sell the modular home and real estate together. Instead of paying DFS the balance owed on the modular home, SHI used the $53,000 it received from Prairie State for general operating expenses.
SHI later defaulted under the agreement with DFS. SHI also defaulted on the note held by Prairie State and then filed for bankruptcy. Prairie State is entitled to foreclosure of its mortgage and sale of the real estate.
The trial court determined that DFS had a first and prior Hen on the modular home as it was part of SHFs inventory. The trial court further determined that the lien and its perfected nature continued under K.S.A. 84-9-401(3), even though SHI had affixed the modular home to real estate and the nature of the collateral’s use changed to a fixture. The trial court further concluded that Prairie State had a first Hen on the underlying real estate and a second lien on the modular home, subordinate to DFS’s security interest.
This case was tried to the trial court on stipulated facts; therefore, our standard of review is de novo. Lightner v. Centennial Life Ins. Co., 242 Kan. 29, 31, 744 P.2d 840 (1987). This appeal also involves the interpretation of the Uniform Commercial Code. Interpretation of a statute is a question of law, and our standard of review is de novo. See Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
Because DFS’s perfected inventory lien attached to the modular home before Prairie State’s filing of its real estate mortgage, DFS’s security interest in the modular home had priority over Prairie State’s mortgage. See K.S.A. 84-9-312(5)(a).
Nevertheless, Prairie State contends that when the modular home was affixed to the real estate, it became a fixture. As a result, it contends that DFS lost its perfected status in the modular home because DFS failed to “re-perfect” through a fixture filing. K.S.A. 84-9-313(l)(a) contains a definition of fixtures:
“[G]oods are ‘fixtures’ when affixing them to real estate so associates them with the real estate that, in the absence of any agreement or understanding with his vendor as to the goods, a purchaser of real estate with knowledge of interests of others of record, or in possession, would reasonably consider the goods to have been purchased as part of the real estate.”
To perfect a security interest in fixtures, a financing statement covering the fixtures must be filed with the register of deeds’ office in the same manner as a mortgage. See K.S.A. 84-9-313(l)(b). As previously stated, Prairie State argues and DFS does not dispute that the modular home became a fixture when it was affixed to the subject real estate. DFS did not make a fixture filing.
The main issue on appeal is whether DFS was required to “re-perfect” its security interest when the modular home was affixed to the real estate and became a fixture. K.S.A. 84-9-401 speaks directly to this point and does not explicitly require a creditor to make later filings to maintain its perfected status in the event the debtor’s use of collateral changes. If the collateral is not moved to another state, but its use changes or it is moved to another county, the original perfection remains effective. K.S.A. 84-9-401(3).
Kansas Comment (6) to K.S.A. 84-9-401 provides:
“This section must be read closely with the definitions of goods in 84-9-109, which defines goods by the primary use to which the debtor puts the goods. For example, a television set used by a doctor in the office would constitute ‘equipment’ for which a financing statement should be filed with the Kansas Secretary of State. The same television set used at home by the doctor would be ‘consumer goods’ for which local filing would be required. . . .
“Subsection (3) . . . covers the issues of the effect of in-state moves, and provides that a proper filing remains effective, in spite of a change of the debtor’s residence, the debtor’s place of business, the location of the collateral or the debtors use of the collateral. For example, if a doctor borrows $4,000 to buy a stereo system for her office and some months later moves the system to her home, the original correct central filing covering ‘equipment’ would continue effective even though the stereo system had since become ‘consumer goods’ for which local filing would have been required in the first place. This rule will cause some ‘secret’ liens, so later lenders need to investigate the history of the debtor and collateral.” (Emphasis added).
Thus, under K.S.A. 84-9-401(3), it was SHI’s original use of the modular home that controlled and not the fact that SHI may have later transformed the inventory into a fixture. Under this clear statutory provision and commentary, DFS’s original perfected lien in the modular home as inventoiy remained effective and DFS was not required to perform a later fixture filing to preserve its perfected lien status.
In addition, analogous Kansas case law is clear that a creditor like DFS is not required to constantly monitor the various uses of its debtor’s collateral and make later re-filings in an effort to maintain its original status as a perfected lienholder. In Beneficial Finance Co. v. Schroeder, 12 Kan. App. 2d 150, 737 P.2d 52, rev. denied 241 Kan. 838 (1987), this court considered a similar issue involving a mobile home. In holding that a fixture filing was not required when the mobile home was affixed to a concrete block foundation, the Schroeder court stated:
“As a practical matter, if mobile homes were subject to fixture filing requirements, a secured party with an interest in a mobile home could only maintain priority by making a new fixture filing every time the mobile home is moved. In today’s mobile society, a secured party would be under an enormous burden to continuously monitor the whereabouts of the mobile home.” 12 Kan. App. 2d at 153.
The Schroeder court further pointed out that it was more reasonable to require parties who later obtained an interest in specific real estate to make inquiry concerning a structure located on the property than to require a party with a security interest in a mobile home to maintain constant vigilance regarding the whereabouts and alleged fixture status of the mobile home. 12 Kan. App. 2d at 154.
Although the Schroeder case involved a mobile home, we believe the reasoning applied in that case can be applied to the present case. K.S.A. 84-9-401 provides an exclusive method for a floor plan financier to perfect its hen in inventory by filing with the Secretary of State. Forcing DFS to follow its collateral and to refile if the debtor’s use of the collateral changed would create an undue burden and would be contrary to the intent of the statute. Further, Prairie State was in a better position to protect its interest. DFS was on file with the Secretary of State as SHI’s creditor. Prairie State could have checked with the Secretary of State and issued the check made payable to SHI and DFS jointly.
Next, Prairie State maintains that SHI was a buyer in the ordinary course of business. Under K.S.A. 84-9-307(1), a buyer in the ordinary course of business (defined in K.S.A. 84-l-201[9] as “a person who in good faith and without knowledge that the sale to the person is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind ...”)... “takes free of a security interest created by such buyer’s seller even though the security interest is perfected and even though the buyer knows of its existence.” To gain the benefit of K.S.A. 84-9-307(1), the buyer in the ordinary course of business must act in good faith. Here, SHI knew that the supposed sale (removal of the modular home from SHI’s inventory and its affixation of the modular home to the realty) was clearly unusual. For this to be a sale, SHI would have been both a seller and a buyer in the same transaction. Because of the unusual way this supposed sale was conducted, we determine that SHI was not a buyer in ordinary course of the modular home. See Merchants & Planters Bk. v. Phoenix Hous., 729 S.W.2d 433 (Ark. App. 1987) (Evidence existed that the sale was conducted in an unusual manner; therefore, the floor plan financier took priority over the financier of the buyer.).
Finally, Prairie State asserts that its mortgage Men on the modular home was a purchase money security interest, which gave Prairie State priority even though it perfected its security interest later than DFS. K.S.A. 84-9-312(4). Prairie State’s lien as to the modular home was not a purchase money security interest as defined by K.S.A. 84-9-107, which states:
“A security interest is a ‘purchase money security interest’ to the extent that it is (a) taken or retained by the seller of the collateral to secure all or part of its price; or (b) taken by a person who by making advances or incurring an obligation gives value to enable the debtor to acquire rights in or the use of collateral if such value is in fact so used.”
Prairie State maintains that it has a purchase money security interest under the second prong (K.S.A. 84-9-107([b]) of the definition. Prairie State asserts in its brief that “it gave value in the form of the loan to enable SHI to acquire rights in the collateral.” As a direct lender, Prairie State must prove that the loan proceeds were given to enable SHI to acquire rights in the modular home and that the proceeds were in fact so used. Here, when Prairie State advanced funds to SHI, SHI had already taken possession of the modular home and had financed its purchase under its floor plan arrangement with DFS. Furthermore, the record indicates that the $53,000 that SHI received from Prairie State to acquire the modular home was later used by SHI for general operating expenses. Because Prairie State’s loan proceeds were not used to enable SHI to acquire the modular home, we determine that Prairie State had no purchase money security interest in the modular home. As a result, Prairie State’s argument fails.
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Green, J.:
Van R. Williams appeals the imposition of postrelease supervision on the basis that the trial court lacked authority to impose postrelease supervision under K.S.A. 2000 Supp. 22-3716(e). We agree and reverse and remand for resentencing.
Williams pled guilty to one count of possession of cocaine and no drug tax stamp. He was sentenced to 24 months’ probation with an underlying prison sentence of 11 months and 24 months of postrelease supervision. Williams’ probation was later revoked for failure to comply with the conditions of probation. The trial court imposed the underlying sentence of 11 months and modified post-release supervision to 12 months.
On appeal, Williams argues that the trial court erred in ordering . postrelease supervision. Resolution of this issue requires interpretation of K.S.A. 2000 Supp. 22-3716(e). Statutory interpretation is a question of law over which this court exercises unlimited review. State v. Peterson, 265 Kan. 732, 733, 962 P.2d 1076 (1998).
Williams contends that he is not subject to postrelease supervision upon completion of his prison sentence imposed as a result of the revocation of his probation. A plain reading of K.S.A. 2000 Supp. 22-3716(e) indicates that his assertions are correct. The statute provides:
“Notwithstanding the provisions of any other law to the contrary, an offender whose nonprison sanction is revoked and a term of imprisonment imposed pursuant to either the sentencing guidelines grid for nondrug or drug crimes shall not serve a period of postrelease supervision upon the completion of the prison portion of that sentence. The provisions of this subsection shall not apply to offenders sentenced to a nonprison sanction pursuant to a dispositional departure, whose offense falls within a border box of either the sentencing guidelines grid for nondrug or drug crimes, offenders sentenced for a ‘sexually violent crime’ ... or whose nonprison sanction was revoked as a result of a conviction for a new misdemeanor or felony offense. . . . The provisions of this subsection shall be applied retroactively.”
Here, Williams’ probation was revoked when he failed to remit payment for the ordered costs and failed to report to his probation officer. However, under K.S.A. 2000 Supp. 22-3716(e), postrelease supervision is not to be imposed when an offender’s nonprison sanction is revoked for failure to comply with the terms and conditions of probation and he or she fulfills the obligation of the underlying sentence. As a conditional violator, Williams does not fall within the exceptions listed in K.S.A. 2000 Supp. 22-3716(e) and is not subject to postrelease supervision. As a result, we remand this case with directions to remove the requirement of postrelease supervision from Williams’ sentence.
Reversed and remanded with instructions. | [
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Green, J.:
This appeal arises out of a patemiiy action. Ashley E. Koontz sued Nicholas E. Clubb to determine paternity of her minor child, K.K. After Clubb admitted to fathering K.K., Ashley was killed in a car accident. Ashley’s parents, J.R. Koontz and April Koontz, were allowed to intervene in the paternity action. The trial court awarded the Koontzes temporary custody of K.K. Later, Clubb moved to set aside the trial court’s order awarding the maternal grandparents temporary custody of K.K. The trial court denied the motion. On appeal, Clubb contends that the trial court improperly denied his motion to set aside the temporary custody order. We disagree and affirm.
Clubb first argues that the trial court erred in denying his motion to set aside the temporary custody order of December 2, 1999. Clubb maintains that the order was void under K.S.A. 60-260(b)(4) because the trial court applied the temporary custody provisions of the divorce code to this case, although this suit was brought as a paternity action.
The standard of review on appeal from a ruling for relief from judgment under K.S.A. 60-260(b) is generally abuse of discretion. The movant must prove sufficient grounds for relief by clear and convincing evidence. In re Marriage of Zodrow, 240 Kan. 65, 68, 727 P.2d 435 (1986). However, when a judgment is attacked under K.S.A. 60-260(b)(4) as being void, there is no question of discretion on the part of the trial court. “Either a judgment is valid or it is void, and the court must act accordingly once the issue is resolved.” In re Marriage of Hampshire, 261 Kan. 854, 862, 934 P.2d 58 (1997). “A judgment is void if the court acted in a manner inconsistent with due process. A void judgment is a nullity and may be vacated at any time.” 261 Kan. at 862.
K.S.A. 60-260(b) provides:
“On motion and upon such terms as are just, the court may reheve a parly or said party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under K.S.A. 60-259(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other mis conduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subsection (b) does not affect the finality of a judgment or suspend its operation. This section does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in K.S.A. 60-309 or to set aside a judgment for fraud upon the court.”
A judgment is void if the trial court relies upon a statute which has no application:
“A court may not render a judgment which transcends the limits of its authority, and a judgment is void if it is beyond the powers granted to the court by the law of its organization, even where the court has jurisdiction over the parties and the subject matter. Thus, if a court is authorized by statute to entertain jurisdiction in a particular case only, and undertakes to exercise the jurisdiction conferred in a case to which the statute has no application, the judgment rendered is void. The lack of statutory authority to make particular order or a judgment is akin to lack of subject matter jurisdiction and is subject to collateral attack.” 46 Am. Jur. 2d, Judgments § 25, pp. 388-89.
Although Clubb did not appeal the judgment of December 2, 1999, we will consider his argument because a void judgment can be vacated at any time. Hampshire, 261 Kan. at 862.
Our Supreme Court has upheld the use of the divorce code to determine custody in a paternity action between two parents who were not married in LaGrone v. LaGrone, 238 Kan. 630, 713 P.2d 474 (1986). LaGrone began as a paternity action. The court ultimately determined custody between the unwed natural parents. The court looked to the divorce code for guidance in determining the relevant factors to consider. Although the Kansas Parentage Act was not yet in effect at the time of trial, the court did not apply the act retroactively. 238 Kan. at 631, LaGrone has not been overruled.
The Kansas Parentage Act, K.S.A. 1999 Supp. 38-1121(d), states: “[T]he court shall enter such orders regarding custody and visitation as the court considers to be in the best interest of the child.” This section relates to the judgment or order of the court determining the existence or nonexistence of the parent and child relationship and allows for orders of support under criteria similar to those found in domestic actions. Absent from the Kansas Parentage Act is guidance in determining custody.
On the other hand, the divorce code has extensive guidelines for custody set out in K.S.A. 1999 Supp. 60-1610. Moreover, this court rejected the argument that K.S.A. 60-1610(a)(4)(D)(iii) applied only to proceedings at the time of the divorce and not to a post-divorce custody proceeding between a parent and a nonparent. See In re Marriage of Burbank, 23 Kan. App. 2d 602, 605, 932 P.2d 466 (1997). The Burbank court stated that “[t]he provisions of K.S.A. 1996 Supp. 60-1610 that govern custody of minor children apply to the original divorce proceedings, as well as to any subsequent proceedings on child custody.” 23 Kan. App. 2d at 605.
In the present case, the trial court properly applied K.S.A. 1999 Supp. 60-1610(a)(4)(D) in granting custody to the maternal grandparents. As a result, Clubb’s argument fails.
Next, Clubb argues that the trial court erred in denying his motion for relief from the order of December 2,1999, by holding that the statutoiy changes to the temporary custody provisions of K.S.A. 1999 Supp. 60-1610(a)(4)(D) made by the Kansas Legislature had prospective application only. The court further stated that the temporary custody provisions of K.S.A. 1999 Supp. 60-1610(a)(4)(D) would be the controlling law of the case.
Statutoiy inteipretation is a question of law, and this court’s review is unlimited. Rose & Nelson v. Frank, 25 Kan. App. 2d 22, 24, 956 P.2d 729 (1998).
A statute operates prospectively unless its language clearly indicates the legislature intended it to operate retrospectively. An exception to this rule has been recognized where a statutory change is procedural or remedial in nature. In re Tax Appeal of Alsop Sand Co. Inc., 265 Kan. 510, 523-24, 962 P.2d 435 (1998). In the case at hand, there is no language in the statute indicating that the statute should apply retroactively.
K.S.A. 60-260(b)(5) provides that a trial court may relieve aparty from a judgment when it is no longer equitable that the judgment has prospective application. Clubb argues that the December 2, 1999, judgment is no longer an equitable judgment due to the changes in the statute.
In the order of December 2,1999, the trial court based its placement of temporary custody with the maternal grandparents on K.S.A. 1999 Supp. 60-1610(a)(4)(D), which read:
“(D) Nonparental custody. If during the proceedings the court determines that there is probable cause to believe that: (i) The child is a child in need of care as defined by subsections (a)(1), (2) or (3) of K.S.A. 38-1502 and amendments thereto; (ii) neither parent is fit to have custody; or (iii) the child is currently residing with such child’s grandparent, grandparents, aunt or uncle and such relative has had actual physical custody of such child for a significant length of time, the court may award temporary custody of the child to such relative, another person or agency if the court finds the award of custody to such relative, another person or agency is in the best interests of the child. In making such a custody order, the court shall give preference, to the extent that the court finds it is in the best interests of the child, first to awarding such custody to a relative of the child by blood, marriage or adoption and second to awarding such custody to another person with whom the child has close emotional ties. The court may make temporary orders for care, support, education and visitation that it considers appropriate. Temporary custody orders are to be entered in lieu of temporary orders provided for in K.S.A. 38-1542 and 38-1543, and amendments thereto, and shall remain in effect until there is a final determination under tire Kansas code for care of children. An award of temporary custody under this paragraph shall not terminate parental rights nor give the court the authority to consent to the adoption of the child. When the court enters orders awarding temporary custody of the child to an agency or a person other than the parent but not a relative as described in subpart (iii), the court shall refer a transcript of the proceedings to the county or district attorney. The county or district attorney shall file a petition as provided in K.S.A. 38-1531 and amendments thereto and may request termination of parental rights pursuant to K.S.A. 38-1581 and amendments thereto. The costs of the proceedings shall be paid from the general fund of the county. When a final determination is made that the child is not a child in need of care, the county or district attorney shall notify the court in writing and die court, after a hearing, shall enter appropriate custody orders pursuant to this section. If the same judge presides over both proceedings, the notice is not required. Any disposition pursuant to the Kansas code for care of children shall be binding and shall supersede any order under this section. When the court enters orders awarding temporary custody of the child to a relative as described in subpart (iii), the court shall annually review the temporary custody to evaluate whether such custody is still in the best interests of the child, such custody shall continue. If the court finds such custody is not in the best interests of the child, the court shall determine the custody pursuant to this section.”
The 2000 legislature extensively amended K.S.A. 1999 Supp. 60-1610(a)(4)(D) by K.S.A. 2000 Supp. 60-1610(a)(5)(C). The amended statute now provides the court with the option of placing a child in nonparental residency under two conditions: (1) if the child is a child in need of care or (2) if neither parent is fit to have residency of the child. In addition, the amended statute replaced the word “custody” with the word “residency.”
The maternal grandparents argue that retroactive application of the statute would affect the substantive rights of the parties. The changes in K.S.A. 2000 Supp. 60-1610(a)(5)(C) alters the substantive criteria for awarding temporary residency to nonparents by requiring a probable cause finding that the natural parent is unfit or that the child is a child in need of care. However, the statute in effect at the time of the order only required that the child was residing with a third party, that the third party had custody of the child for a significant length of time, and that it would be in the best interests of the child to award custody to the third party. See K.S.A. 1999 Supp. 60-1610(a)(4)(D)(iii). The provision of the statute permitting the court to retain control with an annual review of the temporary custody arrangement is now deleted. See K.S.A. 2000 Supp. 60-1610(a)(5)(C). However, at the time of the December 2, 1999, order, the trial court clearly had the authority to place K.K. in the custody of the maternal grandparents.
The changes the legislature made to K.S.A. 1999 Supp. 60-1610(a)(4)(D) deleted the provisions that were contraiy to the parental preference doctrine. This change brought the statute in conformity with case law which holds the parental preference doctrine should control over the best interests of the child test when a natural parent and a third-party nonparent are both vying for custody of the same child. See In re Marriage of Osborne, 21 Kan. App. 2d 374, 901 P.2d 12 (1995).
Notwithstanding the changes for awarding nonparental residency of a child under K.S.A. 2000 Supp. 60-1610(a)(5)(C), we determine that the statute should be read not to require the im mediate abatement of the previous orders of third-party custody. Rather, a motion for change in residency should be made in the trial court and a hearing should follow. In the present case, if Clubb wishes to pursue a change in residency of K.K., he should first file the appropriate motion with the trial court. If an appropriate motion is filed, the trial court should consider these questions before changing K.K.’s residency: first, whether there is probable cause to believe that K.K. is a child in need of care as defined by subsections (a)(1), (2), or (3) of K.S.A. 38-1502 and amendments thereto; second, in the alternative, whether there is probable cause to believe that Clubb is unfit to have residency of K.K.
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Johnson, J.:
Martyn Price appeals his convictions of one count of aggravated sodomy and two counts of aggravated indecent liberties with a minor. We reverse and remand for a new trial.
The alleged victim is F.B., who is the stepdaughter of Price’s stepson. Melissa is F.B.’s mother. F.B. has a stepbrother, L.B., who is 1 month older than F.B. Approximately once or twice a month, Price and his wife would babysit F.B. and her half brother (also L.B., but hereafter referred to as “half brother”). Often, the children would spend the night.
At the beginning of the 1999 school year, when F.B. was 7 years old, Melissa learned that one of F.B.’s friends was spreading a rumor that F.B. was having sex with a boy. Melissa confronted F.B., who became agitated and refused to discuss tire issue in person. However, mother and daughter exchanged a series of letters in which F.B. described sexual activity with both her stepbrother, L.B., and Price.
F.B. revealed that one night some years earlier when F.B. could not sleep, she saw a sexually explicit program on cable television. Sometime later, she asked L.B. to lick her vaginal area and to rub his penis on her genitals. Approximately a month later, she approached Price about engaging in the same behavior. F.B. said Price was initially hesitant, but capitulated when she begged him. F.B. also asked to touch Price’s penis, which he allowed. One morning in 1999, F.B. told Price she no longer wished to continue these acts; Price agreed, and the conduct ceased.
Price emphatically denies ever participating in any of the alleged acts. Price does admit F.B. approached him requesting that he kiss her genitals, but he claims he refused the request and told her that those actions would be wrong. Price initially said he would have to inform his wife. However, when F.B. became upset and worried that Melissa would discover what happened, Price agreed not to tell anyone in exchange for F.B.’s promise not to ask him again.
F.B.’s parents reported this activity to Social and Rehabilitation Services (SRS). Price was eventually charged, on an amended complaint, with one count of aggravated criminal sodomy in violation of K.S.A. 21-3506(a)(1) and two counts of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A). While F.B. had claimed she began this sexual activity as early as age 3 or 4, the information only charged acts which occurred while F.B. was 7 years old, i.e., those occurring between December 19,1998, and December 19, 1999.
The matter proceeded to a juiy trial. Price was convicted on all three counts, and sentenced to a controlling term of 117 months’ imprisonment. On appeal, Price attacks the following: (1) the denial of Price’s motion for a bill of particulars; (2) the denial of Price’s motion for an independent psychological examination of F.B.; (3) the granting of the State’s motion in limine which prevented Price’s expert from testifying; (4) the sustaining of the State’s multiple objections to the introduction of Price’s proffered good character evidence; and (5) the sufficiency of the evidence to support the convictions.
BILL OF PARTICULARS
After the preliminary hearing but before trial, Price filed a motion for a bill of particulars. After a hearing before the Honorable Paul W. Clark, the district court determined the information, which alleged all of the required statutory elements, was adequate. Further, the court found that the matters to be litigated on the charged offenses had been adequately described in the testimony at the preliminary hearing and in other completed discovery. Price challenges this ruling on appeal, arguing the denial of his motion for a bill of particulars impaired his ability to prepare a defense.
“When a complaint, information or indictment charges a crime but fails to specify the particulars of the crime sufficiently to enable the defendant to prepare a defense the court may, on written motion of the defendant, require the prosecuting attorney to furnish the defendant with a bill of particulars. At the trial, the state’s evidence shall be confined to the particulars of the bill.” K.S.A. 2001 Supp. 22-3201(f).
A bill of particulars serves two functions: to inform the defendant of the nature of the charges and the evidence against him or her, thus enabling the defendant to prepare a defense, and to prevent further prosecution for the same offense. State v. Myatt, 237 Kan. 17, 29, 697 P.2d 836 (1985). We review the district court’s denial of a motion for a bill of particulars for an abuse of discretion. A district court abuses its discretion when its actions are arbitrary, fanciful, or unreasonable; that is to say, when no reasonable person would take the view adopted by the district court. State v. Young, 26 Kan. App. 2d 680, 683, 11 P.3d 55 (1999).
The decision to require the prosecution to file a bill of particulars is generally discretionary with the trial court, except in such cases where the charging instrument itself is insufficient to inform the accused of the charges against which he or she must defend. State v. Webber, 260 Kan. 263, 284, 918 P.2d 609 (1996), cert. denied 519 U.S. 1090 (1997). Price argues that, in this case, the district court was required to grant his motion for a bill of particulars because the complaint was too vague. Unfortunately, the amended complaint was not included in the record on appeal. However, even according to Price, each count alleged the elements of the charged offense, die victim, and the relevant time frame. The information presented in the charging document was sufficient to adequately inform Price of the filed charges against him. Thus, while doing so may have been appropriate in this case, the district court was not required to order the State to file a bill of particulars.
Price acknowledges that the State need not provide him with the exact dates and times the alleged offenses occurred. See Myatt, 237 Kan. at 28-29. However, Price’s chief complaint seems to be that he was unable to formulate an alibi defense or show lack of opportunity to commit the alleged crimes. It is unclear how Price would have been able to use such defenses without the benefit of knowing the exact dates and times the alleged incidents took place, information the State was simply not required to provide.
Price further argues he was not adequately informed of the “manner of means” by which these crimes were allegedly committed. In count one, Price was charged with aggravated criminal sodomy for engaging in oral contact with F.B.’s genitalia. In count two, Price was charged with aggravated indecent liberties for lewdly fondling or touching F.B. At the preliminary hearing, the prosecutor clarified that this charge was based on Price rubbing his penis on F.B.’s vagina. In count three, Price was charged with aggravated indecent liberties for inducing F.B. to lewdly touch or fondle him. Again, the prosecutor clarified at the prehminary hearing that this charge was based on Price allowing F.B. to fondle his penis.
At the preliminary hearing, F.B. testified in a fair amount of detail about her sexual contact with Price. She described the last time Price placed his mouth on her genitals, when she was 7 years old. This occurred when F.B. and her half brother were spending the night at the Prices, after the half brother fell asleep. F.B. also described what she was wearing. Later in her testimony, F.B. claimed that during the same, final incident, she touched Price’s penis. F.B. also recounted another incident, when she was age 7,v during which Price touched her genitals with his penis. The preliminary hearing testimony sufficiently informed Price of F.B.’s allegations.
The charging document, together with the evidence presented at the preliminaiy hearing and obtained through discovery, provided Price with sufficient information to defend the charges against him. We cannot say that the district court abused its discretion in denying Price’s motion for a bill of particulars. See Webber, 260 Kan. at 284.
Finally, Price takes issue with the State’s failure to make a pretrial election of which of the multiple acts described by F.B. it intended to submit to the jury. In multiple acts cases, the State must elect the particular criminal act upon which it will rely for conviction or the trial court must instruct the jury that each member must agree that the same underlying criminal act has been proven beyond a reasonable doubt. See State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994). Price notes that the State was in as good a position to select which acts it would rely upon before trial as it was during trial. Further, had the district court granted his motion for a bill of particulars, the State would have been limited to presenting evidence of only those acts specified in the bill of particulars, and Price could have filed a motion in limine to exclude testimony of any other alleged acts. While this point has logical appeal, Kansas law does not require the State to make a pretrial election of the acts upon which it intends to rely. Rather, the State “at some point” must elect the incidents for which adequate proof has been presented or the jury must be given a unanimity instruction. Crutcher v. State, 27 Kan. App. 2d 674, 675, 8 P.3d 1 (1999).
INDEPENDENT PSYCHOLOGICAL EXAMINATION OF VICTIM
Price’s motion for an independent psychological examination of F.B. set forth several factors in support of the motion, namely: F.B.’s initial disclosure of the abuse was in writing; F.B. admitted to prior sexual contact with her stepbrother; and, in F.B.’s letters to her mother, F.B. referred to herself as a liar. In overruling the motion, the Honorable Tom Malone determined that no compelling reason existed to justify ordering such an examination. Specifically, Judge Malone found that Price had not demonstrated that F.B. suffered from any mental or emotional problems, that F.B.’s story was corroborated by some evidence, and that the inconsistencies in F.B.’s various renditions of the events was not unusual. We review the district court’s ruling on this matter for an abuse of discretion. State v. Rucker, 267 Kan. 816, 821, 987 P.2d 1080 (1999).
A trial judge has the discretion to order a psychiatric evaluation of the complaining witness in a sex crime case if the defendant presents a compelling reason for such an examination. State v. Gregg, 226 Kan. 481, 489, 602 P.2d 85 (1979). The district court does not abuse its discretion in denying a motion for a psychiatric examination of the victim witness where there is no evidence of mental instability, lack of veracity, similar charges against other men which were proven false, or any other reason why the particular victim should be required to submit to such an examination. 226 Kan. at 490. Corroborating evidence of the victim’s claims has also been cited as one factor supporting a denial of a motion for a psychiatric examination. See Rucker, 267 Kan. at 821-22. On the other hand, we have found that the district court abused its discretion in denying a motion for a psychiatric evaluation where the defendant presented evidence that the victim was mentally unstable, made a recent charge that her father molested her, mutilated kittens, and had a tendency to soil herself. See State v. Bourassa, 28 Kan. App. 2d 161, 166, 15 P.3d 835 (1999).
Here, Price presented direct evidence calling F.B.’s veracity into question. In one of the letters F.B. exchanged with her mother, she wrote:
“I asked [Price] to lick my privates after the movies I watched. He did. Now I was three or four. I told you not face to face [meaning she did not want to discuss the matter in person], I lie sometimes and I am a big lying ratty big old pig. I ask God very much to help me. I have bad problems with lying. I need help and I ask [stepbrother L.B.] at the same time.”
The State points out that F.B. later explained the “liar” comments referred to her lying to her friend. This is the same friend, however, in whom F.B. confided that she was having sex with a boy and who subsequently spread the rumors to that effect. Interestingly, the trial judge did not comment at all on the issue of F.B.’s veracity in ruling on Price’s motion.
The State argues these statements weigh only on F.B.’s credibility, which is an issue for the jury, not the district court. This argument misses the point. Ordering a psychological evaluation based on the victim’s veracity is a separate issue and does not constitute improper comment by the district court on her credibility.
The judge also relied in part on the existence of corroborating evidence in denying Price’s motion. A review of the record, however, indicates that F.B.’s claims about Price are not corroborated by any evidence at all. The judge noted that the letters F.B. exchanged with her mother and F.B.’s relationship with “the other children,” presumably stepbrother L.B., provided “some corroboration,” although he admitted this evidence was somewhat limited. F.B.’s prior consistent statements hardly constitute corroborating evidence. Moreover, the evidence is undisputed that the alleged acts committed by Price occurred after F.B. engaged in sexual activity with L.B. Thus, it is difficult to see how such evidence corroborates F.B.’s allegations against Price.
F.B.’s own statements concerning her lack of veracity and the absence of corroborating evidence constituted sufficiently com pelling reasons for F.B. to be evaluated. Further, we note F.B.’s testimony reveals her willingness to participate in the various sex acts and suggests she felt very much in control of the relationship; she initiated and terminated the sexual activity. While this in no way mitigates the severity of Price’s alleged criminal acts, such behavior is very unusual and certainly merits further investigation. See West, Children’s Sexual Encounters with Adults, pp. 160-61 (1990). The motion was neither a fishing expedition nor a tactic designed to harass or intimidate F.B. See Bourassa, 28 Kan. App. 2d at 166-67.
We do not suggest that a psychological evaluation of the victim should become the normal procedure in child sexual abuse cases. District courts should be circumspect in deciding whether to subject child victims to any more trauma than is necessary. However, under the atypical facts of this case, there were compelling reasons to evaluate F.B., and the district court abused its discretion in denying Price’s motion.
EXCLUSION OF DEFENDANT’S EXPERT WITNESS TESTIMONY
Price argues next that the district court erred in granting the State’s motion in limine, which prevented his expert witness from testifying at trial. The purpose of an order in limine is to assure all parties a fair and impartial trial by prohibiting inadmissible evidence, prejudicial statements, and improper questions by counsel. Brunett v. Albrecht, 248 Kan. 634, 638, 810 P.2d 276 (1991). A motion in limine should be granted if the material or evidence in question is inadmissible under the rules of evidence and the mere offer of this evidence or statements made concerning the material will tend to prejudice the jury. State v. Galloway, 268 Kan. 682, 690, 1 P.3d 844 (2000). We review a district court’s decision on a motion in limine for an abuse of discretion. State v. Humphrey, 267 Kan. 45, 55, 978 P.2d 264 (1999).
Price sought to introduce the expert testimony of Dr. Howard Brodsky. There is apparently no dispute that Dr. Brodsky is qualified as an expert. At the hearing on the State’s motion, over which the Honorable Joseph Bribiesca presided, defense counsel made a detailed proffer of the expert testimony. Dr. Brodsky was to testify that after evaluating Price, he did not believe he exhibited characteristics typically found in sex offenders. Counsel specifically noted that he would not ask Dr. Brodsky for any opinion as to whether Price, or F.B., was telling the truth or whether he believed Price molested F.B., as such evidence is clearly inadmissible. See State v. Jackson, 239 Kan. 463, 470, 721 P.2d 232 (1986); State v. Lash, 237 Kan. 384, 386, 699 P.2d 49 (1985). But see State v. Arrington, 251 Kan. 747, 753, 840 P.2d 477 (1992) (holding expert witness could testify that severely retarded child victim was incapable of being deliberately deceitful); State v. Colwell, 246 Kan. 382, 391, 790 P.2d 430 (1990) (holding State’s expert witness could testify as to whether child victim was capable of distinguishing the truth from a he).
Ironically, in making his ruling, Judge Bribiesca found it problematic that Dr. Brodsky had not interviewed F.B., even though Judge Malone had previously ruled that there was no compelling reason to justify ordering a psychological examination of F.B. The judge reasoned that any comment on whether F.B. exhibited symptoms of rape trauma syndrome would be inadmissible unless the State planned on presenting such evidence, which it did not. In sum, Judge Bribiesca found that Dr. Brodsky’s testimony would improperly comment on the truthfulness of the witness or whether the victim was molested. Defense counsel then asked Judge Bribiesca to clarify his ruling as to whether Dr. Brodsky could testify about whether Price exhibited characteristics prevalent in child molesters. The judge ruled Dr. Brodsky could not testify at all, as diere was no authority permitting such evidence.
The basis for the admission of expert testimony is necessity arising from the particular circumstances of the case. To be admissible, expert testimony must be helpful to the jury. An expert’s opinion, pursuant to K.S.A. 60-456, is admissible up to the point where an expression of opinion would require him to pass on the credibility of a witness or the weight of disputed evidence. The admissibility of expert testimony lies within the sound discretion of the district court. Such a determination will not be reversed on appeal absent an abuse of discretion. Colwell, 246 Kan. at 389.
On appeal, Price challenges the district court’s ruling insofar as it prevented Dr. Brodsky from testifying as to whether Price exhibited a predilection toward children. In support of his argument, Price contends the State is permitted to introduce expert testimony on whether a victim’s behavior is consistent with that found in other sex crime victims. See State v. Clements, 241 Kan. 77, 80, 734 P.2d 1096 (1987) (Clements I); see also State v. Reser, 244 Kan. 306, 308-09, 767 P.2d 1277 (1989) (holding expert testimony that victim exhibited some traits of post-traumatic stress disorder was admissible); State v. McQuillen, 236 Kan. 161, 171, 689 P.2d 822 (1984) (holding State could introduce evidence that victim exhibited symptoms of rape trauma syndrome). Therefore, to avoid an impermissible double standard, Price argues he should be permitted to present such evidence, also.
The State points to State v. Clements, 244 Kan. 411, 420, 770 P.2d 447 (1989) (Clements II), which found inadmissible State-proffered expert testimony concerning the treatability and psychology of sex offenders. However, the expert had never examined the defendant and only testified as to commonly exhibited characteristics of child molesters. The State, in closing argument, applied those characteristics to the defendant, effectively diagnosing defendant as a pedophile. The Clements II court concluded: “(1) [E]vidence which only describes the characteristics of the typical offender has no relevance to whether the defendant committed the crime in question; and (2) the only inference which can be drawn from such evidence, namely that a defendant who matches the profile must be guilty, is an impermissible one.” 244 Kan. at 420. Here, in contrast, the proferred evidence was Dr. Brodsky’s diagnosis of Price, following a personal evaluation.
Because it involves State-proffered testimony, Clements II is arguably not controlling in analyzing the issue of whether Price’s expert witness was wrongfully barred from testifying. The admissibility of defense-proffered expert testimony on a criminal defendant’s propensity for molesting children is apparently an issue of first impression in Kansas. The weight of authority in other states and in the federal courts is resoundingly in favor of excluding such evidence. See generally Annot., Admissibility of Expert Testimony as to Criminal Defendant’s Propensity Toward Sexual Deviation, 42 A.L.R. 4th 937.
The trial judge has broad discretion regarding the qualification of an expert witness and the admissibility of expert testimony. State v. Smallwood, 264 Kan. 69, 80, 955 P.2d 1209 (1998). The test set forth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), applies where a new or experimental scientific technique is employed by an expert witness. Frye requires that the basis of an expert scientific opinion must be shown to be generally accepted as rehable within the expert’s particular scientific field before it may be received into evidence. State v. Canaan, 265 Kan. 835, 848-49, 964 P.2d 681 (1998); see also State v. Marks, 231 Kan. 645, 654, 647 P.2d 1292 (1982) (holding psychiatric diagnosis of rape trauma syndrome admissible). The Frye test, however, does not apply to “pure opinion” testimony, i.e., where an expert’s opinion is developed from inductive reasoning based on his own experience, observation, or research. Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 456-57, 14 P.3d 1170 (2000).
Several states have excluded the type of evidence at issue in this case on the basis that it has not gained the necessary acceptance in the scientific community; therefore, Frye precludes its admission. See State v. Person, 564 A.2d 626, 631-32 (Conn. App. 1989); State v. Floray, 715 A.2d 855, 860-61 (Del. Super. 1997); Tungate v. Com., 901 S.W.2d 41, 43-44 (Ky. 1995); State v. Elbert, 831 S.W.2d 646, 648 (Mo. App. 1992); State v. Cavallo, 443 A.2d 1020, 1026-29 (N.J. 1982); see also U.S. v. Powers, 59 F.3d 1460, 1472-73 (4th Cir. 1995) (examining such evidence under Daubert v. Merrell Dow, 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 [1993]). But see U.S. v. Robinson, 94 F. Supp. 2d 751, 752-55 (W.D. La. 2000) (finding evidence admissible under Daubert).
In ruling on the State’s motion in limine, the trial judge determined that this evidence would improperly comment on Price’s credibility. Some states have found expert testimony regarding a defendant’s propensity for molesting children to be an improper comment on the credibility of the witnesses, thus invading the province of the jury. See State v. Hulbert, 481 N.W.2d 329, 333 (Iowa 1992); State v. Fitzgerald, 382 N.W.2d 892, 894-95 (Minn. App. 1986); State v. Friedrich, 398 N.W.2d 763, 769-70 (Wis. 1987). Similarly, other states have determined that the proffered testimony merely constituted the expert’s opinion of the defendant’s character and was therefore inadmissible under the state’s rules of evidence. See Floray, 715 A.2d at 859-60 (Del.); State v. Ambrosia, 587 N.E.2d 892, 899 (Ohio App. 1990); Williams v. State, 649 S.W.2d 693, 695-96 (Tex. App. 1983).
It is noteworthy that a few jurisdictions which do not allow defense-proffered evidence as to the defendant’s proclivity for molesting children also do not allow the state to present evidence of rape trauma syndrome or similar afflictions suffered by the victim. See Tungate, 901 S.W.2d at 43 (Ky.); see also State v. Tucker, 798 P.2d 1349, 1355 (Ariz. App. 1990) (applying same evidentiary rule to both sex offenders and victims). It is well established in Kansas that the State may present such evidence of the victim’s psychological infirmities. Nevertheless, it seems most jurisdictions allow the State to present expert testimony in support of its case while prohibiting the defense from doing the same. Whether this is necessarily a bad outcome is a separate question. See Cavallo, 443 A.2d at 1026 (noting the admission of proffered testimony by defense would inevitably lead to a “battle of the experts” and divert the attention of the jury).
California stands nearly alone in allowing a criminal defendant to present expert testimony regarding his or her capacity for sexual deviance. See People v. Stoll, 783 P.2d 698, 707 (Cal. 1989). However, California’s rules of evidence specifically allow this type of testimony as character evidence. See Cal. Evid. Code § 1102 (West 1995). This statute essentially codified the California Supreme Court’s earlier decision in People v. Jones, 266 P.2d 38 (Cal. 1954) (holding “lack of sexual deviance” is a relevant character trait in a sex crime case). Incidentally, evidence of rape trauma syndrome has been determined to be relevant by California courts but is inadmissible to prove that the victim was raped. People v. Bledsoe, 681 P.2d 291, 301 (Cal. 1984).
Apparently following Jones, Alaska courts have also found evidence of the defendant’s lack of sexual deviance to be admissible. See Freeman v. State, 486 P.2d 967, 972 n.8 (Alaska 1971) (noting that it appeared to be “uniformly accepted” that psychiatric evidence showing that an individual accused of sexually deviant misconduct is not a sexual psychopath should properly be regarded as character evidence). This statement has been routinely criticized as inaccurate, as the cases cited by the court, other than Jones and its progeny, were either not on point or contrary to the court’s conclusion. See Cavallo, 443 A.2d at 1027 n.6; 42 A.L.R. at 947. Consequently, Freeman is of dubious precedential value.
Dr. Brodsky’s testimony was based upon his experience, observations, and research, following a personal evaluation of Price. The Kansas Supreme Court has characterized this as “pure opinion” testimony, the validity of which is to be tested by cross-examination of the witness, not by inquiring into the expert’s particular scientific field. Kuhn, 270 Kan. at 457. However, a majority of the panel believes our Supreme Court would extend the reasoning of Clements 11 to defense-proffered expert testimony and find that: (1) evidence that defendant lacks the characteristics of a typical offender is not relevant to whether defendant committed the crime in question; and (2) the only inference which can be drawn from such evidence, namely that the defendant who does not match the child sexual abuser profile must be innocent, is an impermissible one.
The district court was correct in finding there was no authority for admitting Dr. Brodsky’s testimony, and, obviously, such a finding cannot be considered an abuse of discretion.
EVIDENCE OF DEFENDANT’S GOOD CHARACTER
At trial, defense counsel attempted to elicit testimony from various character witnesses about specific instances of conduct where Price behaved appropriately around children. The district court sustained the State’s objections to such questioning. We review the district court’s ruling on the admission of character evidence for an abuse of discretion. State v. Lewis, 27 Kan. App. 2d 380, 384, 5 P.3d 531 (2000).
On appeal, Price argues this type of evidence is admissible. The following Kansas statutes are relevant in the determination of this issue:
“When a person’s character or a trait of his or her character is in issue, it may be proved by testimony in the form of opinion, evidence of reputation, or evidence of specific instances of the person’s conduct, subject, however, to the limitations of K.S.A. 60-447 and 60-448.” K.S.A. 60-446.
“Subject to K.S.A. 60-448 when a trait of a person’s character is relevant as tending to prove conduct on a specified occasion, such trait may be proved in the same manner as provided by K.S.A. 60-446, except that (a) evidence of specific instances of conduct other than evidence of conviction of a crime which tends to prove the trait to be bad shall be inadmissible, and (b) in a criminal action evidence of a trait of an accused’s character as tending to prove guilt or innocence of the offense charged, (i) may not be excluded by the judge under K.S.A. 60-445 if offered by the accused to prove innocence, and (ii) if offered by the prosecution to prove guilt, may be admitted only after the accused has introduced evidence of his or her good character.” K.S.A. 60-447.
Price argues the evidence in question was admissible under K.S.A. 60-447(b). See State v. Kuone, 243 Kan. 218, 231, 757 P.2d 289 (1988).
In Kuone, the defendant was charged with indecent liberties with a child and aggravated criminal sodomy. At trial, the defendant sought to introduce the testimony of two character witnesses who would testify as to their opinions that the defendant did not have a propensity for violence and that he was a good citizen and law-abiding neighbor. The district court sustained the State’s objection to this evidence, finding it was inadmissible and without probative value. The Kansas Supreme Court found the court’s ruling to be in error and determined the evidence was admissible under K.S.A. 60-447(b). The court, however, ultimately determined that this error was harmless. The character trait at issue, the defendant’s propensity for violence, did not prove his guilt or innocence because the State had not charged that the victim’s resistance was overcome by force or fear. The proffered evidence only refuted a statement made by the victim, which was unnecessary to establish the charged offenses. Kuone, 243 Kan. at 229-32.
The court went on to note that an example of the type of character .evidence that would be relevant in disproving the charges in that case would be that the “defendant had been around young girls frequently in situations where similar conduct could have occurred, but that the defendant had always behaved in an acceptable manner.” Kuone, 243 Kan. at 232-33. This is exactly the type of evidence Price sought to introduce.
K.S.A. 60-447 provides that if a character trait is relevant, evidence of specific instances which tend to prove that trait may be introduced in a criminal action if offered by the accused to prove his innocence. State v. Sullivan & Sullivan, 224 Kan. 110, 124, 578 P.2d 1108 (1978). Clearly the evidence here is admissible. The trial judge offered virtually no explanation for his rulings to the contrary.
The State argues that Price misconstrues 60-447 and Kuone. Citing 60-447(a), the State contends that “examples of specific instances of conduct are inadmissible except evidence of a conviction of a crime which is used to prove a character trait to be bad.” This reading is somewhat skewed. The plain language of 60-447 provides that “when a trait of a person’s character is relevant as tending to prove conduct on a specified occasion, such trait may be proved in the same manner as provided by K.S.A. 60-446.” K.S.A. 60-447(a) is an exception to that general rule and provides that “evidence of specific instances of conduct other than evidence of a conviction of a crime which tends to prove the trait to be bad shall be inadmissible.”
The key distinction here is whether the inadmissible evidence which “tends to prove the trait to be bad” is: (1) the evidence of specific instances of conduct; or, (2) evidence of a conviction of a crime. A set of commas would be very useful. The State asserts the inadmissible evidence is “specific instances of conduct,” while the admissible 'evidence is “a conviction of a crime which tends to prove the trait to be bad.” Price’s interpretation renders inadmissible only “evidence of specific instances of conduct . . . which tends to prove the trait to be bad,” but allows “evidence of a conviction of a crime.”
Price’s interpretation on 60-447(a) is the better one. See State v. Gregory, 218 Kan. 180, Syl. ¶ 6,542 P.2d 1051 (1975) (offsetting “other than evidence of conviction of a crime” in parenthesis). It is difficult to imagine how evidence of a conviction of a crime would not prove the character trait at issue to be bad. Thus, the only logical interpretation is that the legislature meant to exclude only those specific instances of conduct which tend to prove the trait to be bad. Because the character trait at issue here is a good trait, 60-447(a) is inapplicable.
The State cites Herbstreith v. de Bakker, 249 Kan. 67, 815 P.2d 102 (1991), in support of its interpretation. In that case, the court noted that “evidence of specific instances of conduct, not constituting a conviction of a crime, is inadmissible to prove a trait of a person’s character.” 249 Kan. at 77. However, in Herbstreith, a medical malpractice case, the evidence of specific instances of conduct was inadmissible because it tended to prove the trait — the defendant’s prior restrictions or suspensions from practicing medicine — to be bad. 249 Kan. at 77. Thus, this case is not particularly helpful here.
Moreover, 60-447(b), which prohibits a judge from excluding evidence of a trait of an accused’s character to prove innocence, does not exclude the use of specific instances of conduct. Given the court’s reasoning in Kuone, it is clear that the type of evidence Price sought to introduce is admissible. The district court erred in sustaining the State’s objections.
The remaining issue is whether Price is entitled to a new trial. Price contends the combined effect of the district court’s erroneous evidentiary rulings gutted his defense. When we add the district court’s refusal to allow Price to evaluate F.B., we believe a new trial is in order.
Cumulative trial errors, when 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 defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule if the evidence against the defendant is overwhelming. State v. Pham, 27 Kan. App. 2d 996, 1006, 10 P.3d 780 (2000).
The evidence in this case was not overwhelming. There was virtually no evidence corroborating F.B.’s allegations. It is undisputed that F.B. acquired her advanced sexual knowledge from sources other than Price. Given the unusual facts of this case, expert testimony concerning F.B.’s psychology was needed to fully develop the issues at trial.
The series of erroneous and inconsistent rulings made by the various judges in the district court in favor of the State substantially impaired Price’s ability to put on his defense and effectively served to deny him a fair trial. Cf. State v. Bourassa, 28 Kan. App. 2d 161, 172-73, 15 P.3d 835 (1999) (finding the “mechanistic legal approach of taking a snapshot of each pretrial ruling and assessing its impact under an abuse of discretion standard” failed to appreciate the devastating impact the district court’s pretrial rulings had on the defendant’s theory of the defense). Price is entitled to a new trial on a more level playing field.
SUFFICIENCY OF THE EVIDENCE
Finally, Price argues his conviction was not supported by sufficient evidence. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000).
Price points out a number of inconsistencies in F.B.’s testimony. F.B. described more than one incident as the “first time” Price touched her inappropriately. F.B. also offered several different estimations on how many times the sexual abuse occurred, each of which was arguably an exaggeration. In addition, F.B. claimed that when Price would pull his penis out of the shorts he often wore, he would do so through the fly. As it turns out, these shorts did not have a fly. Price’s chief complaint, however, is with F.B.’s description of the facts supporting the second count in the information, wherein he was accused of rubbing his penis on F.B.’s vaginal area. Price claims F.B.’s description is a physical impossibility.
The testimony of the prosecutrix alone can be sufficient to sustain a conviction without further corroboration if the evidence is clear and convincing and is not so incredible and improbable as to defy belief. State v. Plunkett, 261 Kan. 1024, 1033, 934 P.2d 113 (1997). The State presented evidence supporting each element of each charged offense. The inconsistencies were more than ade quately addressed by Price’s counsel through cross-examination and the presentation of his defense.
Given F.B.’s age, the inconsistencies in her testimony do not render it so improbable as to defy belief. Rather, this issue hinges on the credibility of the witnesses, which is a matter solely within the province of the jury. On appellate review, we will not pass on the credibility of witnesses or weigh conflicting evidence. State v. McCray, 267 Kan. 339, 343, 979 P.2d 134 (1999). Price’s insufficiency of the evidence argument fails.
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Rulon, C.J.:
Taxpayer HCA Health Services, Inc., appeals from the decision of the Board of Tax Appeals affirming the Department of Revenue’s denial of a sales tax exemption under K.S.A. 74-50,115(b). The Taxpayer further appeals the Department’s denial of an exemption for expenditures related to the purchase of leased equipment and challenges the interest rate applied to the delinquent taxes.
Factual Background
The underlying circumstances of this case are not substantially in dispute. The Taxpayer owns and operates a medical complex in Wichita. Due to continuous changes and advancements in the medical field, the Taxpayer must frequently expend capital to upgrade and expand its existing facilities. The Taxpayer has claimed both sales tax and income tax exemptions for many of these expenditures.
When the Department conducted an income tax audit of the Taxpayer for the tax years of 1987-89, the Department assessed a delinquency against the Taxpayer, alleging the Taxpayer erroneously claimed an exemption under the enhanced Kansas Enterprise Zone Act, K.S.A. 74-50,113 et seq., when the Taxpayer failed to hire the requisite number of new employees. After several conferences and a related exchange of correspondence between the Taxpayer and the Department, a settlement compromise was reached. The Department allowed the Taxpayer to entirely deduct certain expenditures and to partially deduct other expenditures, yet prohibited any deduction for a third category of expenditures.
Thereafter, the Taxpayer continued to claim exemptions for expenditures similar to the types of expenditures ultimately approved in the settlement of the 1987-89 audit. Although the Taxpayer did not use the tax forms provided because it could not demonstrate the requisite increase in employment, the Department routinely approved the exemptions claimed by the Taxpayer during subsequent income tax audits. The parties do not dispute that the issue of job expansion was never raised in these audits and that the Tax payer’s records reflect an increase in average annual employment each tax year until 19.92.
In 1995, the Taxpayer applied for a sales tax exemption certificate for the construction of a birthing center. The Department denied the exemption. Reviewing the Department’s action, the Secretary of Revenue’s designee considered only whether the Taxpayer should be categorized as a “retail business” or as a “non-manufacturing business,” not whether the Taxpayer had increased its average annual employment. The Secretary’s designee reversed the Department’s assessment and approved the exemption certificate.
Subsequently, however, the Department conducted a sales tax audit and a compensating use tax audit of the Taxpayer. The sales tax audit covered a period from April 1, 1993, to March 31, 1996. The compensating use tax audit covered a period from November 1, 1992, to March 31, 1996. As a result of these audits, the Department assessed a $637,747 sales tax delinquency and a $153,253 compensating use tax delinquency against the Taxpayer, including taxes, penalties, and interest.
The assessments were appealed to the Secretary’s designee, who affirmed the Department’s assessments. Pending appeal to the Board of Tax Appeals, the Department and the Taxpayer settled several issues, and the Department agreed to waive the penalties on the delinquencies.
After hearing arguments concerning the remaining issues, the Board of Tax Appeals affirmed the decision of the Secretary’s designee. Upon the Board’s denial of the Taxpayer’s petition for reconsideration, .the Taxpayer appealed to this court.
The Sales Tax Exemption
Primarily, the Taxpayer asserts that it is entitled to a sales tax exemption under K.S.A. 74-50,115(b). The material portion of this statute provides:
“(b) A nonmanufacturing business may be eligible for a sales tax exemption under the provisions of subsection (ee) of K.S.A. 1992 Supp. 79-3606a, and amendments thereto, if the nonmanufacturing business complies with the following requirements:
(1) A nonmanufacturing business shall provide documented evidence of job expansion involving the employment of at least five additional full-time employees.”
According to the Department, the Taxpayer consistently lost employees during the tax years subject to the current audit. The Department argues that this loss of employment disqüalifies the Taxpayer from the exemption allowed pursuant to K.S.A. 74-50,115(b).
Although an administrative agency charged with the enforcement of an administrative statute is to be accorded deference in its application of that statute, the construction of a statute remains a question of law, over which this court possesses unlimited review. See In re Tax Appeal of Scholastic Book Clubs, Inc., 260 Kan. 528, 536, 920 P.2d 947 (1996).
It is a fundamental maxim of statutory interpretation that effect must be given to the legislative intent expressed by the language of the statute when such intent may be ascertained. See In re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 (1998). Where the language of a statute is clear and not ambiguous, a court need not resort to rules of construction. See In re Marriage of Rodriguez, 266 Kan. 347, 352, 969 P.2d 880 (1998).
Considering the plain meaning of K.S.A. 74-50,115(b)(1), we conclude the legislature intended to provide businesses with the incentive to provide new employment by expanding the scope or size of their businesses. Subsection (b)(1) plainly premises a tax exemption upon the creation of additional full-time employment. The statute speaks of “job expansion” evidenced by the addition of five employees.
In determining whether a taxpayer had provided additional employment, the Department applies the method of calculating the number of qualified business facility employees articulated by K.S.A. 79-32,154(d)(1). While K.S.A. 74-50,115(b) does not specifically reference K.S.A. 79-32,154(d)(1), the application of this method to determine the number of employees retained by a taxpayer is consistent with the purpose of the exemption. K.S.A. 79-32,154(d)(1) establishes a method by which the average annual employment of the business may be quantified. Once the average number of employees in a given year is calculated, the average numbers of successive years may be compared to determine whether a business has increased, maintained, or reduced employment.
Both the income tax exemption under K.S.A. 79-32,160a and the sales tax exemption of K.S.A. 74-50,115 are designed to stimulate state enterprise in order to increase employment within the state. Both statutes are encompassed by the Kansas Enterprise Zone Act. Therefore, as the legislature expressed no contrary intent, it is the duty of this court to construe the statutes within the Act as consistently as possible. See State v. Bolin, 266 Kan. 18, 24, 968 P.2d 1104 (1998). Thus, the Department appropriately used K.S.A. 79-32,154(d)(1) to determine whether the Taxpayer had added five employees as required by K.S.A. 74-50,115(b).
Determining the average number of annual employees under K.S.A. 79-32,154(d) for purposes of considering a taxpayer s compliance with K.S.A. 74-50,115(b), however, does not demand a construction under which a taxpayers compliance with K.S.A. 79-32,160a(a) necessarily equates with compliance under K.S.A. 74-50,115(b).
In pertinent part, K.S.A. 79-32,160a(a) states:
“In the case of a taxpayer who meets the definition of a nonmanufacturing business in subsection (f) of K.S.A. 75-50,114 and amendments thereto, no credit shall be allowed under this section unless the number of qualified business facility employees, as determined under subsection (d) of K.S.A. 79-32,154, and amendments thereto, engaged or maintained in employment at the qualified business facility as a direct result of the investment by the taxpayer for the taxable year for which the credit is claimed equals or exceeds five.”
Under the plain language of K.S.A. 79-32,160a(a), a taxpayer may qualify for an income tax exemption if the business expenditure subject to the proposed exemption either adds positions for employment or maintains positions of employment which would otherwise be lost. K.S.A. 74-50,115(b) reads quite differently, allowing a sales tax exemption only when the expenditure promotes an increase in employment by five additional employees.
Based upon the undisputed evidence that the number of employees retained by the Taxpayer in the years subject to audit has steadily declined, this court must reach the inevitable conclusion that the Taxpayer has not complied with the mandates of K.S.A. 74-50,115(b). Even if the Taxpayer could demonstrate that its expenditures provided employment for new employees, an overall annual loss of employment forecloses any argument that the “additional” employment requirement of the exemption statute has been satisfied.
According to Webster’s New Riverside University Dictionary 77 (1984), “addition,” as used in this context, is “[t]he act or process of adding” or is “something added.” “To add,” in a similar context, means “to unite or join so as to increase in size, quantity, or scope” or means “to combine ... to form a sum.” Because words within a statute are generally to be accorded their normal meanings, see Matjasich v. State Dept. of Human Resources, 271 Kan. 246, 252, 21 P.3d 985 (2001), a taxpayer business which hires five new employees but dismisses ten existing employees has not added five employees within the meaning of K.S.A. 74-50,115(b).
As an alternative to its statutory construction argument, the Taxpayer presents a novel legal theory. It suggests that, if, under the plain requirements of the statute, it has failed to qualify for either exemption, the Department created an exception to the operation of the statutes. This argument is based upon an income tax audit conducted by the Department for the 1987-89 tax years. The Taxpayer contends that as a result of negotiations during this audit, the Department devised a methodology for allowing income tax exemptions for certain facility-related expenditures without considering the number of employees involved.
Because the Department negotiated the allowance of specified exemptions within the context of an audit, the Taxpayer’s “methodology” sounds suspiciously like settlement negotiations between a delinquent taxpayer and the Department. As the product of settlement negotiations, the resulting “methodology” applies only to the taxes subject to the audit, not to prospective filings.
Moreover, to the extent that the Department intended to create the prospective application of an exception to the statutory requirements, as contended by the Taxpayer, the Department was completely devoid of the authority to implement such a sweeping exception. As an arm of the executive branch, the Department has some discretion in how it enforces its legislative mandate. As a quasi-legislative entity, the Department is authorized to implement regulations designed to further its legislative mandate. However, the Department’s authority does not extend beyond its legislative mandate; it cannot implement regulations which contravene the clear intent of legislation directing the Department’s duties. See Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 459, 691 P.2d 1303 (1984).
Because any “methodology” devised by the Department for prospective application in filing sales tax exemptions under K.S.A. 74-50,115(b) is clearly outside the Department’s authority, the Taxpayer could not reasonably rely upon such a “methodology” to claim tax exemptions.
The Taxpayer further contends that the Department waived its enforcement of the statutory exemption requirements by approving the exemptions during audits taken of the Taxpayer after it had adopted the Department’s “methodology.” Some of these audits covered the same tax years that are covered within the present audit. Thus, the Taypayer alleges that the Department is estopped from now taking an inconsistent position from that taken in the previous audits.
The statute dealing with taxpayer rights and privileges provides:
“(b) Any taxpayer who has received written advice from the department of revenue concerning the taxability of transactions shall be allowed to rely on such advice when filing tax returns. The department shall not maintain a position against a taxpayer which is inconsistent with a prior written opinion issued to the same taxpayer which has not been rescinded.” K.S.A. 79-3268(b).
As previously discussed, the “methodology” offered by the Department in this case was in the nature of a settlement, not a tax opinion, formal or otherwise, concerning the taxability of the facility-related expenditures.
Clearly, the only written advice from the Department to the Taxpayer was a letter which was limited to resolving a tax dispute regarding income tax exemptions taken for 1987, 1988, and 1989. Nothing within the letter suggests that the Department was waiving the additional employee requirement. Therefore, the Department’s current position is not inconsistent with the position es poused within the letter. As this letter represents the only written opinion within the record on this issue, the Taxpayer’s reliance upon the Department’s failure to raise the employee issue in subsequent audits cannot provide binding support for the Taxpayer’s position.
“(b) A taxpayer may not rely upon a verbal opinion from the department of revenue. Only a written private letter ruling shall bind the department. Each taxpayer desiring a private letter ruling from the department shall request a ruling from the department in writing. The request shall state with specificity the circumstances and facts relating to the issue for which the ruling is sought. If insufficient facts are presented with a taxpayer’s request for a ruling, a private letter ruling shall not be issued by the department.” K.A.R. 92-19-59.
Even were this court to attach some significance to the audits which followed the creation of this “methodology” in which the Taxpayer claimed exemptions without objection from the Department, the Taxpayer fails to posit a basis for relief. With the sole exception of the denial of the exemption for the construction of the birthing center, which was ultimately reversed on appeal, each of the cited instances in which an exemption was claimed concerned an income tax exemption rather than a sales tax exemption.
Because a taxpayer may qualify for an income tax exemption while failing to qualify for a sales tax exemption, the probative value of these previous audits is marginal. Therefore, the Department is not estopped from assessing delinquent taxes against the Taxpayer for erroneously claiming an exemption under K.S.A. 74-50,115(b).
Purchase of Leased Equipment
Next, the Taxpayer challenges the Department’s decision to tax the purchase of previously leased equipment. The Taxpayer argues that it bought the remaining lease and that the purchase should be treated as a lease payment under K.A.R. 92-19-55. Contrarily, the Department contends that the lease term had expired at the time the Taxpayer decided to purchase the equipment and, therefore, the purchase was not a lease buy out, as the Taxpayer claims. Apparently, neither party argues that the Taxpayer was not justified in claiming an exemption for payments made under the lease of the equipment, originally.
According to K.A.R. 92-19-55, a sales tax is imposed upon the total gross receipts from rental or leased property. Thus, the regulations do not distinguish between lease payments and purchase payments for the purposes of determining the applicability of sales tax. K.A.R. 92-19-25b provides a certificate for exemption from retail sales tax to be presented to a vendor from a purchaser. Although neither party cites to authority, a basis for granting an exemption of sales tax upon leased property would presumably equally apply to the purchase of the property.
The record is devoid of any details regarding the lease exemption. During the evidentiary hearing before tire Secretary’s designee, certain questions established that the Taxpayer had previously leased some equipment, which the Department had exempted from sales tax. When the lease was about to terminate, the Taxpayer decided to purchase the equipment.
Generally speaking, a taxpayer claiming an exemption from tax bears the burden of establishing that he or she qualifies for an exemption. See In re Tax Appeal of Collingwood Grain, Inc., 257 Kan. 237, 246, 891 P.2d 422 (1995). However, in the present case, we understand the Department essentially stipulated that the Taxpayer was granted a sales tax exemption upon the lease payments.
Accordingly, the sole issue before this court is whether the sales tax then extends to the purchase of previously leased property. As a specialized agency created to adjudicate tax disputes, the Board of Tax Appeals should be granted deference in the exercise of its field of expertise; however, this court may exercise independent review of the Board’s interpretation of the law. See In re Tax Appeal of Univ. of Kan. School of Medicine, 266 Kan. 737, 749, 973 P.2d 176 (1999).
Because the regulations provide no distinction between lease payments or purchase payments for purposes of assessing sales tax, see K.A.R. 92-19-55, a qualified exemption certificate from sales tax on leased property is equally applicable to the purchase of the same property. Thus, the Board of Tax Appeals and the Secretary’s designee erred in ruling that the Department’s sales tax assessment on the Taxpayer’s purchase of previously leased property was in error.
Failure to Reduce Interest Rate
Finally, the Taxpayer contends the Department should have applied K.S.A. 79-3615(f) to reduce the interest rate to the underpayment rate specified by the federal tax code. K.S.A. 79-3615(f) provides:
“(f) Whenever the secretary or the secretary’s designee determines that the failure of the taxpayer to comply with the provisions of subsections (b) and (c) of this section was due to reasonable causes, the secretary or the secretary’s designee may waive or reduce any of the penalties and may reduce the interest rate to the underpayment rate prescribed and determined for the applicable period under section 6621 of the federal internal revenue code as in effect on January 1,1994, upon making a record of the reasons therefor.”
Clearly, whether a taxpayer’s interest or penalties are to be reduced according to this section is within the discretion of the Secretary of Revenue or the Secretary’s designee. In reviewing a ruling for abuse of discretion, this court reviews the record to determine if the judgment was arbitrary, fanciful or unreasonable. If a reasonable person in the position of the Secretary or the Secretary’s designee could have reached a similar conclusion, this court will not reverse that determination. See In re Tax Appeal of American Restaurant Operations, 264 Kan. 518, 538-39, 957 P.2d 473 (1998).
Here, the Taxpayer inappropriately relied upon a settlement offer to formulate a “methodology” by which it sought to avoid the exemption requirements imposed by statute. Irrespective of whether this position was taken in good faith, the position is not a reasonable construction of the statute. Here, the Secretary’s designee did not abuse its discretion in finding the Taxpayer’s claim of an exemption was not reasonable and that a reduction in the interest rate was not appropriate.
The Taxpayer contends the Department had already found the claimed exemption was a reasonable error, as evidenced by the waiver of penalties. As such, the Taxpayer should also be entitled to an interest rate reduction. This argument fails.
First, the Department’s reason for failing to impose penalties upon the Taxpayer is not contained within the record. It is not an inevitable conclusion that the Department waived the penalties because it believed the Taxpayer’s position to be reasonable. Sec ond, a determination regarding the reduction of the interest rate must be made by the Secretary or the Secretary’s designee, not by the Department which is prosecuting the tax delinquency. The Department’s determination is irrelevant for this determination.
The record substantially supports the determination of the Secretary’s designee. We are satisfied BOTA was correct in finding there was no abuse of discretion in that determination.
We reverse and remand for a recalculation of the tax related to the purchase of the previously leased medical equipment and affirm the remaining portions of the judgment. | [
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Paddock, J.:
This appeal arises out of an unfortunate conflict between two brothers over the family farm. Robert S. Heller petitioned for a partition of the farm and rent from a lease. The trial court granted his petition. Robert’s brother, John E. Heller, counterclaimed for an accounting of the profits from the farming operation. The trial court denied John’s counterclaim. John appeals. We affirm.
Following the death of their father in 1972, the brothers and their mother, Rose, inherited the father’s assets, including the real estate in question, which they operated as a farm. By an oral agreement, Robert, John, and their mother divided the farm income and expenses.
Over the years, the relationships of Robert and John to the farming operation gradually changed to the point that Robert left the farm and worked at another job, leaving John as the operator of the farm. Despite the brothers’ changing roles and John’s questioning of the fairness of the division of income and expenses, no change was made in their previous oral agreement.
In 1994, Rose conveyed her undivided interest in the farm to John. In March 1996, Robert conveyed to John all of his undivided interest in a portion of the farm for the purpose of allowing John to sell or mortgage the conveyed tract to pay their mother’s care expenses.
In April 1996, Robert and John entered into a lease agreement on Robert’s undivided one-fourth interest in the remaining real estate. Under the agreement, John agreed to pay Robert an annual rent fee for a period of 3 years beginning in July 1997 and Robert agreed to pay one-fourth of the real estate taxes. John has failed to make the lease payments and Robert has not paid his portion of the taxes. The lease expired by its terms in 1999. John remains in possession of the real estate as a holdover tenant and continues to farm the real estate.
In his counterclaim, John sought an accounting for the 12 years preceding the execution of the lease in 1996.
The trial court concluded that John’s request for an accounting was barred by the statute of limitations. The trial court also denied John’s claim that he is entitled to a setoff against Robert’s claim for rent even if the statute of limitations bars his claim for an accounting. John appealed.
Our review of the trial court’s conclusions of law is unlimited. Lindsey v. Miami County National Bank, 267 Kan. 685, 689-90, 984 P.2d 719 (1999).
K.S.A. 2000 Supp. 60-513(a)(4) sets a 2-year statute of limitations for an action for injury not arising under contract or not otherwise provided for. The 2-year limitation would apply for an accounting between cotenants.
John contends the limitation period was tolled. In support of his contention, John cites Lindenman v. Unscheid, 255 Kan. 610, 875 P.2d 964 (1994). In Lindenman, the Kansas Supreme Court con- eluded that the statute of limitations had been tolled because the plaintiffs could not have prosecuted their claim to a successful conclusion until after the statute of limitations had run. 255 Kan. at 623. Here, John argues that the same rationale should apply to this case. John believed his brother was taking more than his fair share from the farming operation. John states that he did not sit idly and do nothing; rather, he withheld rent under the terms of the lease until his brother provided him with an accounting. John argues that the refusal to pay the rent forced Robert to file the partition action which resulted in John’s counterclaim for a complete accounting. John’s reasoning is flawed. The situation in the instant case is unlike that in Undenman. John could have filed a motion for an accounting and received a full accounting before the statute of limitations had run. Forcing Robert to file a partition action was not necessary to receive an accounting on the farming operation. John had the ability to file a motion for an accounting before the statute of limitations had expired.
John argues that a just and equitable accounting is required because prior to the lease in 1996, there was no clear agreement between the parties upon which he could have filed suit. However, John had the ability to file for partition or file a motion for an accounting prior to 1996. He willingly entered into the lease with Robert which changed the relationship between them.
John also argues that Robert only had a one-fourth interest in the farming operation, but he was receiving one-third of the government program payments. However, this was an agreement by the parties that each person was to receive a third of the government program payments. The relationship between the parties was very informal regarding the farming operation. The parties only had an oral agreement and they contributed to the expenses and received the profits as agreed. John could have protected his interests at a prior time with a more formal agreement but failed to do so. He is now requesting that the court require an accounting for the years prior to the formal lease and impose a different agreement between the parties. If John was dissatisfied with the farming operation and relationship, he should have made the effort to formalize a written agreement. The 1996 lease was an effort to change the arrangement, but prior to that lease, John did not protect his interests.
John also contends that the statute of hmitations did not run because this is an equitable action, citing K.S.A. 60-1003(d). Although this statute gives the district court broad discretion in a partition action, it does not mention the statute of hmitations. An abuse of the district court’s discretion in applying the statute of hmitations has not been shown.
In Yeager v. National Cooperative Refinery Ass’n, 205 Kan. 504, 470 P.2d 797 (1970), the plaintiff sought an accounting for her share of oil and gas royalties. The Kansas Supreme Court noted that in an equitable action for an accounting, where there is no corresponding legal right or remedy, the statute of hmitations is not applicable, but only laches will bar or defeat the action. However, the court also noted that where there is a legal right or remedy, a court of equity by analogy will follow the statute of hmitations set by law. 205 Kan. at 509. In Yeager, the court found that the plaintiff had an identifiable cause of action and could have sued when the lease was declared void; thus, the statute of hmitations began to run at that time. 205 Kan. at 508-09. The court found that a cause of action accrues, so as to start the running of the statute of hmitations, as soon as the right to maintain a legal action arises. 205 Kan. at 512.
Here, when the cotenancy relationship changed to landlord/tenant in 1996, John’s cause of action for an accounting on the previous relationship began to accrue. His demand for an accounting filed 4 years later was barred prior to the commencement of the partition action.
Next, John argues that he is entitled to raise his claims for an accounting as a setoff against Robert’s claims for rent even if the statute of hmitations bars the claim for an accounting.
K.S.A. 2000 Supp. 60-213(d) states:
“When cross demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim or cross-claim could have been set up, neither can be deprived of the benefit thereof by the assignment or death of the other or by reason of the statute of hmitations if arising out of the contract or transaction set forth in the petition as the foundation of plaintiffs claim or connected with the subject of the action.”
In the present case, K.S.A. 2000 Supp. 60-213(d) has no application. Robert’s rent claim was founded upon the lease. John’s request for an accounting was based upon the previous cotenancy relationship as it existed prior to the lease. The lease created a new relationship between the parties. The district court found that the claims were separate and distinct and denied recovery under K.S.A. 60-213(d). We agree.
The 1996 lease changed the relationship between the brothers from cotenancy to landlord/tenant. John would only be entitled to a setoff on claims that occurred after the change in the relationship.
Affirmed. | [
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