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The opinion of the court was delivered by
Horton, C. J.:
Byington filed his application for a writ of''mandamus to compel J. B. Hamilton, county treasurer of Saline county, to refund certain money paid by Byington for a void tax-sale certificate, the return of which he claims under §145, chapter 107, Comp. Laws of 1885; and also to compel Hamilton, as county treasurer, to issue to him certificates of redemption of certain lands and lots which had been sold for delinquent taxes. Hamilton appeared, waived the issuance of an alternative writ, and entered into a written stipulation admitting that the application correctly stated the facts, and further agreeing that if the court should be of the opinion, on the hearing of the application, that “the law of the case was with Byington,” a peremptory writ should issue, unless he complied with the terms of the judgment within thirty days after its rendition. If an alternative writ had issued, and Hamilton had moved to quash the part referring to the refunding of money, upon the ground that mandamus would not lie, as Byington had otherwise a plain and adequate remedy at law, the motion would undoubtedly have been sustained; and the ruling would have been in accordance with The State v. McCrillus, 4 Kas. 250, and The State v. Bridgman, 8 id. 458. We think, however, under the stipulation, that the district court erred in refusing to order restitution of the money paid upon the void certificate of sale. Hamilton not only did not object to the writ of mandamus being the proper remedy, but expressly agreed that if the court found “the law of the case was with Byington” the writ should issue. The court found that Hamilton owed Byington the money mentioned in the application, and that “the law of the case was with Byington.” It seems to us, therefore, upon the application and stipulation, that the objection to the writ of mandamus, being the proper remedy, was waived. Therefore, as it appears that Byington is entitled to the money demanded from Hamilton, he should not be defeated in this action and remitted to another action against Hamilton to recover his money.
Upon the hearing concerning the issuance of certificates of redemption, the court found that Byington was entitled to have them issued and delivered to him, and allowed a peremptory writ therefor. It appears, however, from the record, that when Hamilton notified Byington of his willingness to issue the redemption certificates, no money was tendered or paid him, and on January 8, 1885, both parties being present, the court made the further order that no peremptory writ issue until Byington should tender or pay the amount of taxes, costs and interest to the date of the issuance of the certificates.
Counsel complain that the journal entry of January 8,1885, is not properly a part of the record. No motion has been made challenging or amending the record, and the proceedings in error are brought to us upon a case-made. Embraced in the case-made is this journal entry. Upon the face of the record this entry is as much a part of it as the application for the writ of mandamus, or any of the other proceedings of the trial court. We must therefore consider this journal entry. The original judgment of the court, rendered on December 14, 1883, ordered the certificates of redemption to be issued on payment of the principal, with interest at twenty-five per cent, computed to the date of the tender; but as this tender was withdrawn, and when Hamilton was willing to issue the certificates of redemption no money was tendered or paid for the redemption of the lands and lots, the court properly refused, upon motion, to order the writ issued until all the taxes, costs and interest were tendered or paid.
The judgment of the district court will therefore be modified to this extent: A peremptory writ of mandamus will issue requiring Hamilton to refund the money paid by Byington for the void tax-sale certificates, unless within thirty days after the entry of the judgment in the district court upon the mandate of this court, he fully complies with the terms thereof.
The judgment of the district court requiring Byington to tender or pay the taxes, costs and interest to the date of the issuance of the redemption certificates before the peremptory writ will be granted therefor, will be affirmed.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
Plaintiff commenced this action to recover the purchase-price of a Champion harvester and cord binder, which defendant purchased of plaintiff. The contract, or order for the machine, was as follows:
“ Order for Champion Harvester and Cord Binder. —Leona, Kansas, May 15, 1883. — Mr. Alvin Acker, Leona, Kansas: You are hereby authorized to procure for me one of the Champion harvesters with cord binder, by the first day of June, 1883, for which I agree to pay you two hundred and fifty dollars (also freight on same) in cash on delivery; or, in lieu of said cash payment, to execute notes, payable as follows: Two hundred and fifty dollars, October 1,1883, including interest at the rate of 10 per cent, per annum after maturity; payable at Leona, Kansas. The machine to be warranted as per the manufacturers’ printed warranty, a copy of which has this day been received. The machine to be shipped to Leona. Taken by L. G. Gim, agent. Anthony Kimmie.”
The manufacturers’ printed warranty referred to was as follows :
“Warranty of Whiteley’s Champion Harvester and Cord Binder. — This machine is warranted to be of good'material and well made, and if properly set up, adjusted, and operated according to the directions, will do good work under all ordinary circumstances. While it is not recommended for cutting hemp, extra-tall rye, or other very excep tional crops, it is warranted to do as good work in harvesting all ordinary crops, viz., wheat, barley, oats, flax, etc., as any other machine and binder. But it is expressly understood and agreed, that this warranty is invalid and of no effect unless the machine is properly set up and adjusted, and used in accordance with our directions. If said machine does not perform as above represented under the management of the purchaser aud agent, immediate notice must be given to us at Springfield, Ohio, advising us fully as to the name and residence of the purchaser; and that the machine is held by the purchaser, who will furnish the necessary facilities for testing same in the presence and under the direction of a competent person, to be designated and sent by us for that purpose; when if the machine does good work, it shall be kept by the purchaser, and continued use shall be considered conclusive acknowledgment that it fills the warranty. But if, upon a second trial, in the presence and under the directions of the person designated and sent by us for that purpose, after notice from the purchaser, said machine does not work as above, it may be returned to us, and the payments will be refunded.
Champion Machine Co.”
Under this contract the defendant received the machine, which was set up by the plaintiff, and an effort made to operate it. In this effort some part of the machine was broken. The plaintiff sent a mechanic with a piece and repaired the machine, and the defendant with the mechanic again tried to operate it, and was unsuccessful. Some days later the plaintiff again tried to operate it, and again sent a mechanic, a skilled man, to try to make it work. All these efforts failed to make it do the work required. The plaintiff then informed the defendant that he would notify the machine' company and request it to send a skilled person to try to make the machine work. The defendant waited several days, and again called upon the plaintiff and requested him to place the harvester in a condition to be operated. The plaintiff informed the defendant that he had three times telegraphed the machine company to send an expert to place it in working order, and had received no response therefrom. The defendant gave no notice to the Champion Machine Company at Springfield, Ohio, and no notice was given it save such as was given by the plaintiff.
The record does not contain all the testimony. The only question urged by the plaintiff in error is, that the defendant failed to give notice as required by the conditions of the printed warranty, and therefore he was obliged to pay for the machine whether it worked satisfactorily or not. This claim is founded upon the theory that the sale of this machine was made by the Champion Machine Company, and not by the plaintiff. If this claim is correct and the sale was actually made by the Champion Machine Company, then before the defendant could complain and refuse to pay for the machine, he would have to show a substantial compliance with the terms of the company’s printed directions, which he received at the time of the purchase.
The defendant, however, insists that he purchased the harvester in question, not from the Champion Machine Company, but from the plaintiff; that his contract was with the plaintiff; that he received the machine from the plaintiff, and that he is now sued by the plaintiff for the purchase-price. If the defendant’s claim is correct, then no notice to the Champion Machine Company, at Springfield, Ohio, was necessary to be given by the defendant. This question, under proper instructions by the court, was submitted to the jury, which found generally for the defendant on all the issues. In addition to this finding, we are inclined to think that the defendant’s theory of this case is correct. The transaction seems to have been with the plaintiff, not as agent for the machine company, but acting for himself. The notes were made payable to him, and he was to furnish the machine; and in bringing an action in his own name for the purchase-price, it would seem that he himself so considered the transaction. If not, why was the action not brought in the name of the Champion Machine Company, instead of in the name of the plaintiff ? There is no allegation here or evidence .tending to show the relation between the plaintiff and the machine company. This contract, then, being between the plaintiff and the defendant, the stipulation in the printed circular which accompanied the machine, was applicable and binding only upon these parties so far as the quality of the machine or the warranty was concerned, and that the same would perform the work as therein stated; and the plaintiff being present, and having full knowledge of the character of the work and the failure of the machine to perform that work, was all the notice that was necessary.
The plaintiff in his brief cites Furneaux v. Esterly & Son, 36 Kas. 539, as authority. We have carefully examined that case, and.find nothing therein that will help the plaintiff. The contract in that case was also for the sale of a harvester, but it was made with the harvester company through its agents. Notes for the purchase-price were taken by them, and suit brought on those notes by the machine^ company. Also, the warranty provided that in case the harvester failed to do good work, written notice must at once be given by the purchaser to the agent who sold the harvester, as well as to the machine company. No notice was given to the company by the purchaser. It was held that the giving of the notice was a condition precedent, which must be performed; and as no notice was given, the failure of the machine to do good work was waived. In this case the warranty provides that if the harvester does not perform the work as warranted, under the management of the agent and purchaser, notice must be given to the machine company; but it does not provide who shall give that notice, or how it shall be given. The plaintiff notified the company by telegraph at least three times, and if the sale was made by the plaintiff as the agent of the Champion Machine Company, then the agent, as well as the machine company, would be equally interested with the purchaser in the success of the machine. It was as much the duty of the agent as of the purchaser to give the notice; so, under either theory of the case, the plaintiff could not recover.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
This action was tried at the December term, 1885, in the district court of Chase county. There is but a single question to be decided here, and that is, whether the stenographer’s fee of two dollars may be taxed and col lected in an action wherein no stenographer is employed. Section 6, chapter 189, Laws of 1885, is as follows:
“A ‘stenographer’s fee’ of two dollars shall be taxed by the clerk of the court as costs in each case in the district court in any county in which a stenographer shall be appointed, which, when collected, shall be paid into the county treasury.”
There is no condition in this section itself which requires the services of a stenographer to be rendered before the fee is taxed. Plaintiff in error contends that this section is unconstitutional, being in contravention of §1, article 11, constitution of Kansas, which- is, that the legislature shall provide for a uniform and equal rate of assessment and taxation. He urges that the fee required from the suitor in each action is an arbitrary exaction to defray the salaries of public officers, which is a public matter, and should be borne by the general public by a general tax.
We have no inclination to controvert his arguments against the policy of this law. We are simply called upon to examine and pass upon the question whether the legislature had the power to enact such a law, and have nothing to do with the policy of such an enactment. It will be noticed that the two dollars to be collected is called a fee, not a tax, although it is to be taxed by the clerk. We presume it will be admitted that the word “taxed” is here used in the sense of assessing, fixing or determining the amount to be paid by the unsuccessful party in an action in court. This signification of the word tax is a familiar one in judicial proceedings. The plaintiff urges, however, that it is an arbitrary exaction for which no sei’vices have been rendered, and though it may not bear the name, it is in reality a tax, and being one, it lacks the essential elements of equality and uniformity. To support his claim he cites A. T. & S. F. Rld. Co. v. Howe, Treas., 32 Kas. 737. In that case it was decided by this court that § 4, chapter 124, Laws of 1883, is in violation of §1, article 11 of the constitution. Said section is as follows:
“To provide a fund for the payment of the salaries and current expenses of the board of commissioners and secretary, the board shall certify to the auditor of state, on or before the 20th day of May, in each year, the amount necessary to defray the same; which amount shall be divided pro rata among the several railroad companies, according to the assessed valuation of their property in the state, and the auditor shall thereupon certify to the county clerk of each county the amount due from the several railroad corporations located and operated in said county, and the county clerk shall place the same on the tax-rolls of his county, to be collected the same as other taxes upon railroad property; and the county treasurer shall account to the state for the same as provided by law for the other state funds: Provided, That in unorganized counties the amount so found due from railroad companies therein shall be included in and levied and collected with such taxes as are levied and collected by the state from railroad companies located in said unorganized counties.”
Mr. Justice Hurd, speaking for the court in that case, said:
“We think that the taxation provided for in the fourth section of chapter 124 of the Laws of 1883 is a tax upon one class or species of property, to be collected from property in the same manner as taxes on personal property are collectible within the state; and that the section aforesaid, authorizing the levy and collection of such taxes, is in conflict with § 1 of article 11 of the constitution, providing for a uniform and equal rate of taxation. . . . It is evident that the legislature regarded this tax as a property tax, and not as a license or an inspection tax, because the tax is not assessed upon all the companies, corporations and persons subject to be regulated by the provisions of the statute.”
We think' there is this difference between § 6 we are now considering and § 4 of that act which was then pronounced unconstitutional: in the law providing for the salaries of railroad commissioners the tax was to be collected from one class of property assessed upon an ad valorem basis, but not assessed upon the property of all the companies, corporations and persons subject to be regulated by the provisions of the statute. In the act now under consideration it is not proposed to tax property on any principle of valuation, but the same fee is taxed in each case, without regard # 1 ° to the number or condition of the parties to the action, the amount involved, or the time consumed in the trial of the cause. There is uo case excepted; all suitors are treated alike. In that respect, at least, the law has the elements of uniformity and equality.
The question now presents itself, What is a tax within the purview of §1, article 11 ? This section of our constitution has been repeatedly examined and discussed by this court. Mr. Justice Valentine, speaking of the construction of the clause, “ The legislature shall provide for a uniform and equal rate of assessment and taxation,” says:
“The constitution does not require that the manner or mode of assessing and taxing property, or the manner and mode of collecting the taxes, shall be equal and uniform, but it simply requires that all property shall be assessed and taxed at an equal and uniform rate. This the .legislature has provided, for. All taxable property, real and personal, within this state, must, under the statutes, be assessed at its true value in money, and the taxes levied upon said assessment must be at an equal and uniform rate. The state taxes, under the statutes, are equal and uniform throughout the state, being levied on a uniform valuation, and fixed at a uniform rate on each dollar- of the valuation throughout the state. Each county tax is equal and uniform in the same manner throughout the county, and the same may be said of the taxes of each township, district, city, and village; and this is all that is required by the constitution.” (M. R. Ft. S. & G. Rld. Co. v. Morris, 7 Kas. 221.)
Also, in Comm’rs of Ottawa Co. v. Nelson, 19 Kas. 234, it is said, arguendo:
“ Neither do we suppose that capitation taxes, or poll taxes, or requirements to work on the roads, or to train in the militia, come within said constitutional provision, although evidently they are all taxes in one sense.”
The courts in other states have also construed constitutional provisions similar to the one contained in §1, article 11 of our constitution. They have uniformly held that the words “ eq ual and uniform,” used in reference to assessment and taxation, apply only to a direct tax upon property in order to prevent arbitrary taxation from being imposed without regard- to the kind, quality or value of the property taxed. It has also been repeatedly recited that such a provision is no limitation on the power of the legislature as to the other subjects of taxatiou. (The State, ex rel., v. Lancaster Co., 4 Neb. 537; Sawyer v. City of Alton, 3 Scam. 127; Glasgow v. Rowse, 43 Mo. 479, 491; Aulanier v. Governor, 1 Tex. 653.) The power of taxation is an attribute of sovereignty, and the rule is well established that the taxing power in the legislature is without limit, except such as may be prescribed by the constitution itself; and before a statute should be pronounced unconstitutional, it must be clearly an infringement of the superior law beyond a substantial doubt. ( The State, ex rel., v. Robinson, 1 Kas. 17.) Applying the rules, so plainly laid down in the authorities cited, h) § 6 which we are now considering, it is evident sucp secf;jon js nof¡ clearly an infringement of our constitution providing for an equal rate of assessment and taxation; that a stenographer’s fee is not a tax as therein contemplated, it not being a burden imposed upon property to raise money for public purposes.
Laws similar to the one now being considered, under similar constitutional provisions, have been held valid by the courts of Tennessee, Arkansas, North Carolina, and Nebraska, and the amounts charged and collected have been pronounced legal under the different names of taxes, charges, penalties, costs, and fees. They all have virtually the same essential properties, whatever they may have been designated, and have been usually imposed for the purpose of adjusting on an equitable basis, as between a suitor and the public, the expense of the administration of justice.
Considering its nature and object, the item of two dollars provided for in § 6 may very properly be characterized as a fee to the public, as distinguishéd from a tax. It is taxed as a stenographer’s fee, and though it has some of the qualities of a tax, it is not levied, assessed or collected as taxes usually are in this state, and especially is wanting in the essential qualities of being assessed upon property in proportion to its value. We cite as authorities sustaining the views set forth in this opinion: Cooley on Taxation, 31, and note; Murphy v. The State, 38 Ark. 514; Hewlett v. Nutt, 79 N. C. 263; Harrison v. Willis, 7 Heisk. 35; and those cited, supra.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Leben, J.:
Rucker Properties, L.L.C., sued Janet and John Friday and their relatives to quiet title to a tract of land in Greenwood County and to enforce a right of first refusal to. buy the land. The Fridays filed a cross-claim that sought title to a disputed portion of land that they claimed they own through adverse possession. The district court held a bench trial and found in favor of the Fridays on all issues. Rucker Properties now appeals that ruling.
Rucker Properties argues that the district court erred in not enforcing the right of first refusal in the lease agreement between it and the Fridays. But the right of first refusal in this case was only implicated if the lessors under the lease — the Fridays and their family members — wanted to sell the property. Here, the transfer in question was a quitclaim deed executed as a gift by family members in favor of specific members of that family. As no sale existed, it did not trigger the right of first refusal.
Rucker Properties also argues that the district court erred in finding that the Fridays had acquired the disputed piece of land through adverse possession. But whether a party has acquired land through adverse possession is a question of fact, and substantial evidence supported the district court’s conclusion that the Fridays had possessed the disputed land openly, exclusively, and continuously under a good-faith belief in ownership for more than 30 years. Rucker Properties’ arguments that the district court’s decision on this issue cut off the only suitable access to its property does not defeat the adverse-possession claim, and Rucker Properties made no claim in thé district court for any sort of implied easement across the Fridays’ land. Thus, we affirm the district court’s judgment in favor of the Fridays.
The district court prepared an exceptionally thorough 18-page decision. It summarized the key evidence and its findings, and it included helpful maps and photos showing the disputed land. Because the parties are familiar with the evidence and the district court’s decision set it out so clearly, we will only summarize some of the key points related to the appeal.
As referenced in the district court’s opinion and the parties’ exhibits, three separate tracts are at issue. Tract A is owned by Rucker Properties. Tract B is owned by the Fridays. Tract C is within the legal description for Tract A and is adjacent to Tract B. The Fridays claim that they and their predecessor owners have actually been using Tract G for so long that they have acquired actual title to it by adverse possession.
I. The District Court Did Not Err in Concluding that Rucker Properties’ Right of First Refusal to Buy Tract B Had Not Been Triggered by an Intra-Family Transfer.
Rucker Properties’ first argument on appeal arises out of a lease agreement between Rucker Properties and the group of family members that owned Tract B: the Fridays, Janet Friday’s mother, Dorothy Whipple Davis, and Janet Friday’s other siblings and their spouses. Under the lease, Rucker Properties obtained the right to use Tract B. That lease agreement also gave Rucker Properties a right of first refusal to buy Tract B if the owners decided to sell it: “If, during the period of this lease, the Lessors desire to sell the property, the Lessee shall have the first and exclusive right to purchase the property at the fair market price obtainable from any other purchaser.”
While the lease was in effect, all of the other owners of Tract B except the Fridays quitclaimed their interests to the Fridays. Rucker Properties contends that this triggered its right of first refusal to purchase the property. Because this contention raises a legal issue regarding the interpretation of a written agreement, we consider the legal issue on appeal without any required deference to the district court. See McGinley v. Bank of America, N.A., 279 Kan. 426, 431, 109 P.3d 1146 (2005); Bergman v. Commerce Trust Co., 35 Kan. App. 2d 301, 304, 129 P.3d 624 (2006). To the extent that any factual findings are relevant in considering this issue, however, we must accept them so long as they are supported by substantial evidence. Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007).
Rucker Properties’ argument quickly runs into trouble with one of the district court’s factual findings: the district court found that the Fridays’ co-owners simply gifted their interests to the Fridays. Whether a transfer is a gift is a question of fact, In re Estate of Button, 17 Kan. App. 2d 11, 13, 830 P.2d 1216, rev. denied 251 Kan. 938 (1992), and the district court’s factual finding on this question is well supported by the evidence. The language contained in the lease provided only a right of first refusal if “the Lessors desire to sell the property.” But they didn’t. As the district court put it, “The difficulty with plaintiff s position is that there was no offer, no intent to sell, no seller, no buyer and no fair market price upon which the first refusal clause could operate.”
The counsel for Rucker Properties contended in oral argument that the word “sell” should be broadly construed to mean “convey.” But a sale is no mere conveyance — it is “[t]he transfer of property or title for a price.” (Emphasis added.) Black’s Law Dictionary 1364 (8th ed. 2004). Although the quitclaim deed said that title was transferred “for the sum of One Dollar and other valuable consideration,” the district court’s factual finding that there actually was no payment stands on appeal, and no one contends that $1 would have represented “the fair market price obtainable from any other purchaser” referenced in the right-of-first-refusal lease provision.
Rucker Properties attempts to liken the facts of this case to those in Anderson v. Armour & Company, 205 Kan. 801, 473 P.2d 84 (1970). In Anderson, the defendants/lessors argued that a lease provision, which applied if “the Lessor desires to sell the premises,” was not triggered because the “tract was not ‘sold’ but rather was ‘traded’ as an essential part of other related property.” 205 Kan. at 802-03. The court rejected that argument, finding that the transaction “involved an exchange of properties together with cash [and that] the deed from Armour recited ‘bargain, sell and convey’. Further, as far as the Andersons were concerned — the 13.75 acres were effectively ‘sold’ and placed beyond their reach — regardless of the details of the transaction . . . .” 205 Kan. at 806.
Rucker Properties emphasizes the “placed beyond their reach” language and argues that the quitclaim deed here did the same. But Anderson is distinguishable from this case because nothing was exchanged for Tract B. It was purely a gift. Unlike in Anderson, no property or cash was given in exchange for tire property, and unlike in Anderson, the property was not transferred to a third party to the lease agreement.
Both the Fridays and the district court cite Bergman. In that case, land subject to a first-refusal clause passed to the owner’s estate upon his death, and the estate later transferred the property to the late owner’s sister as part of a settlement among family mem bers over who would get various assets from the estate. The plaintiff claimed that this transfer triggered his right of first refusal. The court rejected that argument and concluded that the right was not triggered unless the owner or estate specifically intended to . sell and a bona fide written offer had been received. The court ruled that the transfer between the estate and the late owner s sister did not trigger the right of first refusal because there was no bona fide written offer and no evidence that the estate was willing to accept such an offer. 35 Kan. App. 2d at 307-08.
Bergman supports our conclusion because it states that the owner of a property must form an intent to sell to trigger a right of first refusal, but it is not entirely factually analogous. Although the court did hold that the transfer between the estate and the late owner’s sister did not trigger the right of first refusal, the decision was based in large part on the fact that no bona fide written offer had been received. Bergman, 35 Kan. App. 2d at 307-08. But the right of first refusal in this case has no such requirement.
We think this issue in our case is resolved simply by saying that a transfer among co-owners without payment doesn’t trigger a right of first refusal when the owner must have a “desire to sell the property” to trigger it. Other states have addressed more directly the question of whether a gift can trigger a right of first refusal that is contingent on the “sale” of a property. Those states have concluded that gifts generally do not trigger such clauses. See, e.g., Hartzheim v. Valley Land & Cattle Co., 153 Cal. App. 4th 383, 392, 62 Cal. Rptr. 3d 815 (2007) (“A gift of the property to third parties completely changes control but does not trigger a typical right of first refusal.”); Webster v. Ocean Reef Community Ass’n, Inc., 994 So. 2d 367, 370 (Fla. App. Dist. 2008) (“Were we to construe ‘sale’ or ‘purchase’ to include Ms. Sculthorpe.’s transfer and her residential trust’s transfer, the Association would have a right of first refusal to acquire the residence for nothing, nada, zero. We will not construe the documents to produce, an absurd result.”); Schroeder v. Duenke, 265 S.W.3d 843, 847 (Mo. App. 2008) (“Under Missouri law, a transfer of property by gift from one family member to another doés not trigger a right of first refusal.”); Dewey v. Dewey, 33 P.3d 1143, 1149 (Wyo. 2001) (“[A] ‘sale’ in the context of a right of first refusal is a ‘transfer for value of a significant interest in the subject property to a stranger who thereby gains substantial [ownership or] control over the subject property.’ ”).
Several other states have addressed the issue of whether a sale or transfer of property between co-owners triggers a right of first refusal, and those states have concluded that there must be a transfer for value to a third party to trigger such a clause. See Pellandini v. Valadao, 113 Cal. App. 4th 1315, 1322, 7 Cal. Rptr. 3d 413 (2003) (“[A] bona fide sale for purposes of a right of first refusal does not occur unless there is a transfer for value to a third party.”); Byron Material, Inc. v. Ashelford, 34 Ill. App. 3d 301, 305-06, 339 N.E.2d 26 (1975) (sale of an interest in leased property from one co-tenant to another did not trigger a right of first refusal); Wilson v. Grey, 560 S.W.2d 561, 561-62 (Ky. 1978) (sale from one of the lessors to another was not a sale of the premises within the meaning of the first-refusal clause of the lease because the transfer did not place any of the landlord’s reversionary interest outside the ownership of the existing lessor); Rogers v. Neiman, 187 Neb. 582, 583, 193 N.W.2d 266 (1971) (“We think the proper construction of the lease was that an option existed only if the entire property was offered for sale by all of the lessors.”); Baker v. McCarthy, 122 N.H. 171, 176 (1982) (“The reference to the grantors in the plural, in our opinion, clearly contemplates that an offer to purchase would be made by a third party to the grantors as a whole group.”); Koella v. McHargue, 976 S.W.2d 658, 660 (Tenn. App. 1998) (“Our conclusion that the transfer between co-tenants did not trigger a right of first refusal protects defendants’ rights against third-party purchases.”); Prince v. Elm Inv. Co., Inc., 649 P.2d 820, 823 (Utah 1982) (“[F]or purposes of a right of first refusal, a ‘sale’ occurs upon the transfer [a] for value [b] of a significant interest in the subject property [c] to a stranger to the lease, [d] who thereby gains substantial control over the leased property.”); McGuire v. Lowery, 2 P.3d 527, 532 (Wyo. 2000) (“We hold that for a transaction to constitute a ‘sale’ and trigger a first right of refusal, it must involve an arms-length transaction resulting in an actual change in control of the burdened property rather than simply moving it from the individual owners.to an entity controlled by them.”).
Finally, the fact that no third parties were involved in the quitclaim deed is also an important point. The right of first refusal applied if the “Lessors desired to sell” the property. It does not state that it applied if any or some of the lessors desired to sell the property. Rather, the plain language of the clause indicates that all the lessors had to agree to sell the property. The Fridays were lessors under the lease agreement, but they did not surrender or convey any interest in the property. Because the Fridays did not give up their interest in the property, the right of first refusal did not apply.
Accordingly, because the conveyance between the Whipples and the Fridays was an intra-family gift and not a sale and no ownership was transferred to anyone outside of the lease agreement, the right of first refusal was not triggered. The district court did not err in concluding as much.
II. Substantial Evidence Supported the District Court’s Conclusion That Tract C Had Been Acquired by the Fridays or Their Predecessors Through Adverse Possession.
The district court found that the Fridays (or their predecessors in ownership of Tract B) had gained title to Tract C through adverse possession under belief of ownership. Under K.S.A. 60-503, a party may obtain title to real estate through open, exclusive, and continuous possession of the property for 15 years when that possession is accompanied by a good-faith belief of ownership. See Wallace v. Magie, 214 Kan. 481, 486, 522 P.2d 989 (1974). To gain adverse possession, the party’s belief of ownership must not only be made in good faith, it also must be reasonable. Akers v. Allaire, 17 Kan. App. 2d 556, 558, 840 P.2d 547, rev. denied 252 Kan. 1091 (1992).
Unless the facts are undisputed, whether a party has acquired title to land through adverse possession is a question of fact. Chesbro v. Board of Douglas County Comm’rs, 39 Kan. App. 2d 954, 960, 186 P.3d 829, rev. denied 286 Kan. 1176 (2008). We must uphold the district court’s factual findings when substantial evi dence' supports them; appellate courts do not weigh conflicting evidence or evaluate witness credibility. In re Estate of Hjersted, 285 Kan. 559, 571, 175 P.3d 810 (2008); Thompson v. Hilltop Lodge, Inc., 34 Kan. App. 2d 908, 910, 126 P.3d 441 (2006).
The district court concluded that the Fridays had met the requirements of adverse possession with regard to Tract C. Specifically, the court found that “[s]aid land has been openly, exclusively and continuously occupied by the Fridays and their predecessors in title, the Whipples, undisputed and in good faith for more than 15 years (actually over 30 years and for almost 20 years before plaintiff became the owner of Tract A).” Substantial evidence supports this conclusion.
Before we discuss the evidence about adverse possession in detail, we need to add a few more of the background facts of the case. Tract C wraps around the top and down one side of Tract B. The section above Tract B is about 160 feet wide, while Tract B itself is only 132 feet wide; the section above Tract B is about 133 feet long. A section of smaller width, about 28 feet (160 -132), runs along one side of Tract B for the rest of its 1320 feet of length. An old stone house originally built by an ancestor of Janet Friday was built on Tract B in die 1800s, but a chicken coop behind the house is on Tract C. In addition, a new modular home placed on the land by the Fridays in the fall of 2004 is located both on Tract B and Tract C. And finally, by way of getting a bearing on possible boundaries, an old railroad tie is located toward the south end of Tract C on what the Fridays contend is the boundaiy line between Tract C and Rucker Properties’ Tract A. That railroad tie is on a north-south line that would run about 9 feet from the chicken coop; one witness said that a railroad tie used to be on that line and behind the chicken coop.
With those basic facts, let’s review some of the evidence that supports the district court’s conclusion. Several people testified at trial, including members of the Whipple-Friday family, a former lessee of Tract B, and former farmers of Tract A under both Rucker Properties and a predecessor owner; nearly all these people testified that the recognized boundary between the properties was the railroad tie. When the Whipples first moved onto the land in the early 1970s, they made use of the chicken coop located on Tract C and constructed a pole barn on Tract C. The Whipples also gardened on Tract C.
Janet Friday testified that Dorothy Whipple Davis leased the land after she moved away and had believed that the land she was leasing included Tract C. Although Rucker Properties said that it or its tenant farmers on Tract C or both regularly farmed over the line designated by the railroad tie or hunted on Tract C, there was testimony that both Dorothy Whipple Davis and her tenant farmer, Robert Stotts, gave permission to the farmers working Tract A to farm or mow across the line represented by the railroad tie. These facts support the district court’s conclusion that the Whipple-Friday family possessed Tract C openly, exclusively, and continuously under a good-faith belief in ownership for more than 30 years.
Rucker Properties makes only passing reference in its brief to the requirement that adverse possession be continuous by claiming that the Whipple-Friday family did not occupy the land after 1985. But it is undisputed that, although the family did not live on the land from 1985 until 2004, they leased the land to Stotts and Rucker Properties during that time. Certainly, a lease on the property reflects a claim of ownership in it. In Buchanan v. Rediger, 26 Kan. App. 2d 59, 63, 975 P.2d 1235 (1999), our court noted that what actions may constitute adverse possession depend upon the nature of the property, its condition, and its appropriate use: “The acts of dominion necessary to establish possession must be adapted depending on the particular land, and neither cultivation, nor residence, is necessary to establish actual possession.” Nothing in the record suggests that leasing Tract B (which the Fridays and Whipples believed included Tract C) was inappropriate, unusual, or out of character for that piece of land. Indeed, the fact that both Tracts A and B were leased at different times to different farmers suggests that it was an accepted and common use of land in the area. In Buchanan, the owners exercised their claimed ownership of the farmland by leasing the land for tenant farming, just as the Fridays and their predecessors did.
Rucker Properties also does not explicitly challenge the district court’s finding that the Whipple-Friday family’s possession of Tract C was open or that the possession extended beyond the 15-year statutory period. Thus, it appears that the gist of Rucker Properties’ argument on appeal is that the Fridays’ possession of Tract C was neither exclusive nor based on a belief of ownership.
Rucker Properties does challenge whether the Whipple-Davis family exclusively possessed Tract C. It argues that the district court “failed to consider [the Fridays’] long-standing acceptance of use of land at issue.” Rucker Properties claims that “[t]he evidence in the case showed that hunters on the [Rucker Properties] property and lessees on both the Whipple and [Rucker Properties] tracts (B and A respectively) regularly worked both sides of the boundary line.” Rucker Properties also claims that its use of a private road running across Tracts B and C to access Tract B negates any claim of exclusivity.
One initial problem with this argument is that whether adverse possession has been established is a question of fact. See Chesbro, 39 Kan. App. 2d at 960. Rucker did testify that he hunted on Tract C on a yearly basis up to the line of fruit trees. According to Rucker Properties, the fields in Tract A had always been cultivated across Tract C and onto Tract B. But several other people also testified that the boundary line was the railroad tie and that the land was not farmed across that line. And there was also testimony that when the land was farmed across that line, it was done with the permission of the Whipples or their tenant, Robert Stotts. The district court chose to give greater weight to the testimony that the recognized boundary was the railroad tie. As noted above, it is not the job of the appellate court to reweigh the evidence heard at trial. In re Estate of Hjersted, 285 Kan. at 571. Because substantial evidence supports the district court’s conclusion, it should stand.
Rucker Properties also overlooks an important point when it argues that exclusivity was compromised by its tenants farming over the railroad tie line. Biyan Marshall testified that he worked for Rucker Properties and cultivated the land east of the railroad tie (on Tract C) in 2003 and 2004. But it is important to note that during that time, Rucker Properties was leasing Tract B from the Whipple-Friday family. When use of the property was done with the permission of the party claiming adverse possession, that does not negate exclusivity because the act of obtaining permission recognizes the superior authority of possession of the party from whom permission was sought. Aylesbury v. Lawrence, 166 Kan. 8, 10, 199 P.2d 474 (1948); see also Bowles v. McKeon, 217 S.W.3d 400, 406 (Mo. App. 2007) (permissive visits by title owner do not negate adverse possession claim); Rieddle v. Buckner, 629 N.E.2d 860, 863 (Ind. App. 1994) (permissive use under easement doesn’t negate adverse possession claim). The district court found that several witnesses understood the boundary line to be based on the railroad tie well before Rucker Properties leased Tract A.
Janet Friday testified that the family always believed that the land under the lease included Tracts B and C. Thus, any actions by Rucker Properties or its employees while it was leasing the property don’t dispute the exclusive claim of ownership staked by the Whipple-Friday family. Under the lease, Rucker Properties had every right to use the land as a lessee. The same holds true for Rucker Properties’ use of the private road running east-west near the southern border of the tracts. Rucker Properties’ use of the road and its cultivation onto Tract C does not contradict the exclusive nature of the Whipple-Friday family’s possession of that tract because Rucker Properties was using it under the authority given to it by the lease.
There are also key differences between this case and the case cited by Rucker Properties in support of his argument, Thompson, 34 Kan. App. 2d 908. Rucker Properties says that, much like the facts of Thompson, in this case there was “tacit cooperation between the landowners for an extended period of time, not to say a lack of continuous or exclusive possession by either.” In Thompson, adjoining landowners both shared in the maintenance and costs of a strip of land between their properties. No discussion was ever had of what the actual boundary was. The district court rejected one party’s claim of ownership by adverse possession, and the Court of Appeals agreed after finding, in part, that the evidence showed that both sides claimed a possessory interest in the disputed tract of land through their maintenance activities. 34 Kan. App. 2d at 911.
The key difference in this case is that any cultivation or maintenance of Tract C by Rucker Properties or its tenants was done either after the initial request by Dorothy Whipple Davis or her tenant Stotts, or when Rucker Properties itself was the tenant on Tract B. Thus, unlike in Thompson, the actions of Rucker Properties were not contrary to the exclusive possessory interest that the Whipple-Friday family claimed. To the contrary, it actually supports their possessory claim on the land because any maintenance done by Rucker Properties or its tenants was done at the request of the Whipple-Friday family or under the authority of the lease.
Rucker Properties’ brief also emphasizes the traditional requirement of hostility in adverse-possession claims and argues that there must have been some sort of notice or intent on the part of the Whipple-Friday family to claim Tract C. Rucker Properties does not address, however, the portion of K.S.A. 60-503 that allows an otherwise open, exclusive, and continuous possession of land to be either “knowingly adverse or under a belief of ownership.” See Akers, 17 Kan. App. 2d at 558. As the district court noted, die facts of this case turn on a belief of ownership of Tract C by the Whipple-Friday family.
With regard to the Whipple-Friday family’s belief in ownership, Rucker Properties claims that the family never “asserted a claim against or right to Tract C or any portion of it.” He points to the lease, which included only the legal description of Tract B, as evidence of this fact. But that will be true in any adverse possession case: if the legal description matched what everyone claimed on the ground, there would be no dispute. Janet Friday testified that her family always believed that the land covered by the lease was Tracts B and C because that was the land they believed they owned. The district court concluded that the lease of the land did not contradict the family’s claim against Tract C but rather “confirms their belief in their right of possession and ownership . . . .” Nothing in the record suggests that the Whipple-Friday family’s belief in their ownership in Tract C was based on anything other than good faith. It was certainly a reasonable belief because either they or their tenants had been using Tract C since the early 1970s. Accordingly, the district court did not err in finding that the Whip ple-Friday family was operating under a good-faith belief in ownership.
Although Rucker Properties goes to great lengths in its brief to dispute the recollections and testimony about the railroad tie, the district court chose to accept that testimony. To dismiss that testimony on appeal as insufficient or unreliable would be to reweigh the credibility of the witnesses, and that’s not the duty of an appellate court. See In re Estate of Hjersted, 285 Kan. at 571. Accordingly, because substantial evidence supports the district court’s conclusion that the Whipple-Friday family adversely possessed Tract C, we must affirm the district court’s decision.
III. Rucker Properties Cannot Raise a New Claim for a Road Easement on Appeal.
Rucker Properties’ final argument is that the district court erred to his “material prejudice” by awarding all of Tract C to the Fridays. Rucker Properties claims that the decision to award all of Tract C to the Fridays allowed them to block off.access to the private east-west road that runs across Tracts B and C and onto Tract A. Rucker Properties then argues that we should reverse the judgment granting adverse possession to the southern portion of Tract C “and remand for further proceedings which take the legitimate concerns of ingress and egress into account and fashion any further action in light of it.”
But Rucker Properties did not present any claim for a road easement in this lawsuit, either in the pleadings or in the pretrial order. Nor did it make an argument after trial to the district court for some sort of easement for use of an existing road on Tract C. We note that Rucker Properties now seeks not only some sort of easement to use the road on Tract C but also on Tract B, a parcel to which it has no claim of ownership whatsoever. Such a claim may not be raised for the first time on appeal. See Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007).
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Green, J.:
Robert Blaurock appeals his jury trial convictions and sentences for rape, aggravated criminal sodomy, and sexual exploitation of a child. Blaurock raises five arguments on appeal. First, Blaurock argues that the trial court erred in admitting evidence of other crimes he allegedly committed against the victim in this case. Nevertheless, we determine that the other crimes evidence was admissible to prove plan and identity under K.S.A. 60-455. Although the trial court did not conduct the appropriate analysis under K.S.A. 60-455 before admitting the evidence,-the error was harmless. Moreover, under the particular facts of this case, the lack of a limiting instruction on plan and identity did not constitute reversible error. Accordingly, Blaurock’s argument fails.
Next, Blaurock contends that the trial court erred in allowing an unredacted videotape to be given to the jury in this case. Nevertheless, Blaurock’s failure to request redaction of the videotape precludes appellate review of this issue. Next, Blaurock maintains that the State violated his statutory right to a speedy trial by fading to bring him to trial within 90 days under K.S.A. 22-3402. Blau rock’s argument fails for two reasons: (1) Blaurock was not being held in custody solely for the subject criminal charges in his second trial; and (2) the trial court did not abuse its discretion in granting the State’s continuance and, therefore, the State had 180 days to bring Blaurock to trial under K.S.A. 22-3402. As a result, we agree with the trial court that there was no violation of Blaurock’s statutory speedy trial right under K.S.A. 22-3402.
Next, Blaurock argues that the combination of errors in this case deprived him of a fair trial. Nevertheless, because Blaurock has not established any error in this case, his argument on this issue fails. Finally, Blaurock contends that the trial court erred in using his criminal history, which was not proven to a jury beyond a reasonable doubt, to increase his penalty. Blaurock’s argument is controlled by our Supreme Court’s decision in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). As a result, his argument fails. Accordingly, we affirm.
First Trial
In November 2005, Blaurock went to trial on 10 counts of rape in violation of K.S.A. 21-3502; 1 count of aggravated kidnapping in violation of K.S.A. 21-3421; 1 count of aggravated criminal sodomy in violation of K.S.A. 21-3506 with an alternative count of criminal sodomy in violation of K.S.A. 21-3505; and 1 count of sexual exploitation of a child in violation of K.S.A. 21-3516. Each of the rape counts had an alternative count of aggravated indecent liberties with a child in violation of K.S.A. 21-3504. The counts were all based on allegations of sexual misconduct by Blaurock against his girlfriend’s 14-year-old daughter, C.S. Blaurock lived with C.S. and her mother, Tammy. The alleged acts took place after April 30, 2005, and before May 25, 2005; on May'25, 2005; and on June 1, 2005.
After a 3-day trial, the jury found Blaurock guilty of one count of aggravated indecent liberties with a child based on the June 1, 2005, incident. The jury acquitted him of seven counts of rape (with alternative counts of aggravated indecent liberties with a child), which were based on the allegations of sexual misconduct occurring after April 30, 2005, and before May 25, 2005. The jury acquitted him of aggravated kidnapping, which was based on the May 25, 2005, incident. Finally, the jury was unable to reach a verdict on two counts of rape, which were based on the May 25, 2005, incident; the count of aggravated criminal sodomy (alternative count of criminal sodomy), which was based on the June 1, 2005, incident; and one count of sexual exploitation of a child, which was based on pictures taken during the June 1, 2005, incident.
Second Trial
In April 2006, the State brought Blaurock to trial for the second time on one count of rape (alternative aggravated indecent liberties with a child), which was based on the May 25, 2005, incident; one count of aggravated criminal sodomy (alternative criminal sodomy), which was based on the June 1, 2005, incident; and one count of sexual exploitation of a child, which was based on pictures taken during the June 1, 2005, incident.
May 25, 2005, Incident
At Blaurock’s second trial, C.S. testified that on the morning of May 25, 2005, she was awakened by Blaurock flipping her over, tying her wrists behind her back, and placing duct tape over her mouth. Blaurock eventually took the duct tape off of C.S/s mouth because she was having problems breathing. Blaurock tried to lead C.S. to his bedroom, but C.S. ran into the kitchen and grabbed a knife on the counter. C.S. testified that she was going to slit her throat because she did not want to have sexual intercourse with Blaurock. Nevertheless, C.S/s hands were still tied behind her back, and she was unable to reach her throat. Blaurock took the knife away from C.S. and then dragged her to his bedroom.
According to C.S., Blaurock threw her on his bed and told her that they were going to have sex every day for a period of months. C.S. testified that she was crying and telling him no. C.S. further testified that Blaurock said that if they missed a day, then one of her friends or relatives was going to disappear. According to C.S., Blaurock had her cousins’ and friends’ pictures and their addresses on a piece of paper that he showed to her.
C.S. testified that Blaurock undressed her and forced her to have sex with him that morning while her hands were still tied. Moreover, after he untied her hands, Blaurock told C.S. that they were going to take sexual pictures. C.S. testified that she unwillingly sat on Blaurock’s face, and Blaurock took a picture of them through the mirror on the headboard of the bed.
C.S. testified that as Blaurock was dragging her to the bedroom during the May 25 incident, he hit her in the eye. Tammy later noticed a bruise on C.S.’s face. When Tammy asked about the bruise, C.S. told Tammy that she did not know what had happened. Tammy tried to question C.S. further, but C.S. became irritated and asked Tammy to drop the matter. Blaurock’s brother, Marty Blaurock, testified that he had noticed C.S.’s black eye between May 25 and June 1, 2005. Nevertheless, Marty testified that Blaurock, Blaurock’s son Johnathan, and Mike Wertacet had told him that Tammy had become angry and had hit C.S. in the eye.
May 1, 2005, through May 24, 2005, Incidents
C.S. testified that Blaurock had abused her ealier in May 2005 before the May 25 incident. C.S. could not remember the number of times the abuse had occurred before May 25. C.S. testified that Blaurock would wake her up every other morning as soon as her mother left for work around 6:45 a.m. and would sexually abuse her. According to C.S., the incidents happened between when her mother left for work and when C.S. left the house around 7:25 a.m. to catch the bus for school. One morning at school after the sexual abuse happened a couple of times, C.S. told her friend, D.P. D.P. testified that she told C.S. to report the incident.
C.S. recounted a particular incident in May 2005, where Blaurock had told her that she was pregnant and that he needed to put a little white pill in her vagina and have sexual intercourse with her three times that day. Blaurock told C.S. that if they did that, she would not be pregnant anymore. According to C.S., Blaurock placed the pills in her vagina three times on that particular day, and she and Blaurock had sexual intercourse each time. C.S. testified that on that particular day, she was out of school due to either a teacher in-service day or to her being ill.
C.S. testified that during the month of May, Blaurock had given her bellybutton rings and shirts. In addition, Blaurock and Tammy had given C.S. tickets to two concerts. C.S. testified that she felt like Blaurock was buying these items so she would have sex with him.
June 1, 2005, Incident
C.S. testified that no sexual abuse occurred after May 25, 2005, and before June 1, 2005. On June 1, 2005, however, C.S. was at the dining room table on the telephone with D.P. when Blaurock told her to get off the telephone. When C.S. got off the telephone, Blaurock told her to go to the bedroom. According to C.S., she told Blaurock “no” and began to argue with him. Blaurock then pulled her to his bedroom and told her to take off her pants. C.S. testified that she curled up in a ball on the bed because she did not want any sexual abuse to occur.
C.S. testified that Blaurock undressed himself, pulled C.S.’s shorts off, and forced her to have sexual intercourse with him. C.S. further testified that after they had sexual intercourse, Blaurock forced his penis into her mouth and then photographed her. According to C.S., she was upset and crying and kept telling Blaurock “no,” but she eventually complied with his request because she wanted to end the incident. C.S. testified that Blaurock then made her sit on his penis, and he took another picture.
C.S. testified that after the incident was over, she got up and ran to the bathroom. Blaurock then went outside. C.S. called D.P. and told her that Blaurock had raped her. D.P. encouraged C.S. to get help. C.S. then went to see her neighbor, M.T., who lived two houses away, and asked to use her telephone. C.S. called the police and told them that she. had been raped by Blaurock. C.S. then called Tammy at work and told her that Blaurock had raped her.
When Officer Miguel Pena arrived at M.T.’s home, he was met outside by C.S. and Tammy. Both C.S. and Tammy told Pena that C.S.’s stepfather had raped her. Although Blaurock and Tammy were never married, Blaurock had lived with C.S. and Tammy since 1996. Blaurock’s son, Johnathan, who was 20 years old when the incidents occurred in this case, had lived with C.S. and Tammy since he was 11 years old.
While Pena was talking to C.S. and her mother outside of M.T.’s home, Blaurock pulled into the driveway of his home.- Pena and Officer Ronald Sutton began walking toward Blaurock, and Sutton yelled at Blaurock to stop. Nevertheless, Blaurock failed to acknowledge the officers and hurriedly went into the house. Sutton knocked on the door and attempted to open it, but the door was locked. A few minutes later, Blaurock came out of the side door and was met by Pena. Blaurock was taken into custody. After Blaurock was in custody, he spontaneously asked Sutton, “Do you have any suggestions for life after this?”
After Blaurock was arrested, C.S. was taken to the University of Kansas Medical Center, where she had a rape examination performed. C.S.’s underwear was collected at the hospital. With Tammy’s permission, crime scene investigators searched the house for evidence of sexual abuse. A Polaroid camera was collected during the search, but no pictures of the sexual abuse were found at that time. The next day, C.S. was interviewed by a social worker at the Sunflower House about the alleged sexual abuse. Her interview was videotaped and played for the jury at trial. While at Sunflower House, C.S. revealed that she had changed her underwear right after the sexual assault that occurred on June 1. After the interview, a detective followed C.S. and Tammy back to their house and collected the underwear, which Tammy had placed in a bag.
Three days after the June 1 incident, while searching for the pictures that Blaurock had taken of the incidents, Tammy saw something sticking out above the garage door. Tammy got up on a step stool and pulled down a plastic bag that contained loose condoms and sexual lubricant, a package of unopened Polaroid film, and an opened package of Polaroid film. Inside the opened package of film, Tammy found a picture of C.S. in which C.S. was visibly upset and had a penis in her mouth.
Michael, C.S.’s natural father, who was also searching for the pictures, then reached up into the area where Tammy had been searching and found two more pictures of two individuals engaged in sexual conduct. Michael testified that one of the individuals in the pictures appeared to be C.S. Michael’s wife called the police, and the crime scene investigation unit recovered the items found. In addition to the items previously mentioned, the crime scene investigation officer recovered two empty boxes of condoms and a sex toy.
Blaurock’s Letters
While Blaurock was in jail, he sent several letters to his mother. In one of the letters, Blaurock told his mother to call C.S.’s mother and make clear that he was “not exactly defenseless.” Blaurock stated that C.S. was “not really very innocent,” that C.S. had M.T. as a coconspirator, and that every act with C.S. was consensual. Blaurock asserted that if the real truth were made known, C.S. would be in trouble and Tammy would lose custody of her.
Blaurock further asserted in one of his letters that on days when some of the alleged incidents had occurred, C.S. either had slapped school or had called him to come get her from school so that she could spend time with him. In addition, alleging that C.S. had behaved in a sexually explicit manner towards him, Blaurock gave reasons for his behavior: (1) that C.S. would peek through the bedroom door to watch him while he was naked; (2) that C.S, would come into his room while he was getting dressed; (3) that after Tammy left in the morning, C.S. would barge into the bathroom while Blaurock was naked; (4) that C.S. would call Blaurock’s name and fully expose herself to him while she was in the shower; (5) that C.S. had showed him how she shaved her pubic area; (6) that C.S. would call Blaurock into her room while she was naked or changing underclothes; (7) that C.S. wanted head-to-toe massages while she was naked; (8) that C.S. had used her body to get gifts and money from Blaurock; (9) that C.S. would get into bed with him once Tammy left in the morning; and (10) that C.S. would jump up and down on his bed while she was naked until Blaurock eventually joined in with her.
Moreover, Blaurock alleged that he had suspected C.S. was having sex with “Derek” or another boy after examining her underwear; that C.S. was using drugs; that he had helped C.S. pass drug tests by buying her over-the-counter cleansing agents; that C.S. had repeatedly asked him to kill her natural father; and that C.S. had threatened to tell Tammy about C.S. and Blaurock if he did not kill her father.
In one of his letters, Blaurock admitted to having sexual intercourse with C.S. on June 1, 2005. Blaurock asserted that after they had sexual intercourse, C.S. stated that Blaurock was just like her natural father and that she wanted him dead, and then she ran out of the room. Blaurock alleged that C.S. and M.T. had devised a plan to get rid of him so that they could have their summer vacation without any interruptions.
Blaurock wrote several letters in which he encouraged C.S.’s mother to get C.S. to change her report. Blaurock went so far as to outline what C.S. could say in a sworn affidavit to show that he had not done what she had alleged. Blaurock threatened that if the case went to trial, eveiything about C.S.’s and Tammy’s lives would be exposed.
Blaurock’s mother sent Blaurock’s letters to Tammy. After receiving the letters, Tammy wrote to Blaurock and told him that she and C.S. were not going to testify. Tammy testified that she was angry when she had received the letters and had written Blaurock because she did not want him to enter into a plea agreement.
Blaurock’s Testimony and Evidence
At trial, Blaurock admitted that he wrote the letters but testified that he had falsified the information. Blaurock denied that it was him depicted in the three photos admitted into evidence at trial. In denying that it was his penis shown in one of the pictures, Blaurock testified that he had a hernia approximately half the size of a bar of soap in his pelvic area. Moreover, Blaurock testified that he had never used the Polaroid camera to take pictures of C.S. while she was engaged in' sexual acts.
Blaurock testified about his work activities on May 25,2005, and denied that he had committed any of the acts that allegedly occurred that day. Moreover, Blaurock’s testimony was that he was busy with job estimations and other activities on June 1, 2005. Blaurock’s son, Johnathan, testified that he had gotten home around 10:30 on the morning of June 1, 2005, and gone to sleep in his room in the basement. Nevertheless, he did not hear any “commotion” upstairs until the police began searching the house that afternoon.
During the first part of May, Blaurock’s friend, Mike Wertacet, was also living at the house. According to Blaurock, both Johnathan and Mike would be up and getting ready in the mornings. Blaurock testified that he usually left the house around 6:45 or 7 a.m. at the same time as Johnathan, who was going to heating and air conditioning school. Blaurock’s brother, Marty Blaurock, testified that he was at Blaurock’s house every morning because he and Blaurock worked together. According to Marty, he never noticed any tension or problems between C.S. and Blaurock during May 2005.
According to Blaurock, C.S. had asked him several times about having her natural father murdered. Johnathan testified that C.S. had also asked him many times if he would kill her father. Marty Blaurock testified that he had overheard C.S. say that she wanted her father dead. C.S. testified, however, that she had never asked Blaurock or Johnathan to kill her father.
Blaurock further testified that he and Tammy had been having problems in their relationship during April and the first part of May 2005. Blaurock stated that he and Tammy were in the process of ending their relationship in May 2005. Nevertheless, Blaurock testified that he and Tammy had been having sex nearly every day between May 25 and June 1, 2005, and that he had never used a condom. Marty testified that Blaurock and Tammy were not getting along and that Tammy understood Blaurock was going to leave her.
Blaurock testified that his relationship with C.S. had been rough. According to Blaurock, C.S. had a lot of friends of which he did not approve, including her friend Derek. Blaurock testified that he had thrown Derek out of the house during April or the first part of May 2005 when C.S. did not want Derek to leave. Blaurock stated that he had tapped Derek on the shoulder and head with his foot and that he had verbally insulted Derek. Blaurock testified that he had been to Derek’s house before June 1, 2005, asking Derek’s mother and grandmother to keep Derek away from C.S. According to Johnathan, C.S. said she hated Blaurock because he would not let her see Derek anymore.
Blaurock testified that when the police came to the house on June 1, 2005, he thought they were there based on the incident with Derek. Blaurock testified that when he arrived home on the afternoon of June 1,2005, he saw the police at the end of the street but did not hear anything as he was walking into the house or after he was inside the house. Blaurock testified that he has hearing loss in both ears. According to Blaurock, he walked out of the side door because he had noticed Tammy’s car in the driveway, and he was going to look for her in the backyard. Blaurock testified that his statement to police, “Do you have any suggestions for life after this?” was made because he thought he was being arrested for assaulting Derek.
DNA Evidence
Barbara Crim-Swanson, a forensic biologist with the Kansas Bureau of Investigation (KBI) lab, testified that semen was identified on the vaginal swabs taken from C.S. during her exam at the University of Kansas Medical Center. The level of semen on the swabs indicated that sexual intercourse had taken place within 24 to 36 hours. Crim-Swanson testified that the major component of the mixed DNA profile on the vaginal swab was consistent with the DNA profile of Blaurock. The estimated frequency of that major component of the mixed DNA profile obtained from biological material occurring at random in the unrelated general Caucasian population was 1 in 67 quadrillion. As a result, Blaurock could not be excluded as a possible contributor of the major component of the mixed DNA profile.
Moreover, Crim-Swanson examined the DNA found in die two pairs of underwear collected from C.S. The DNA found in the underwear recovered from C.S.’s house on June 2, 2005, matched Blaurock’s DNA in all 13 areas of DNA that were typed. In addition, the major component of the mixed DNA profile found in the underwear that C.S. wore to the hospital on June 1, 2005, was consistent with Blaurock’s DNA profile.
After a 5-day trial, the jury found Blaurock guilty of rape from the May 25, 2005, incident; aggravated criminal sodomy from the June 1, 2005, incident; and sexual exploitation of a child from the June 1, 2005, incident.
I. Did the trial court err in admitting evidence of Blaurock’s prior crimesP
First, Blaurock argues that the trial court erred in admitting evidence of his prior crimes, which consisted of both the conviction and the acquittals from his first trial.
When reviewing a trial court’s decision to admit evidence, an appellate court first determines whether the evidence is relevant. Relevant evidence is “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). Thus, the evidence, to be relevant, also must be material. State v. Reid, 286 Kan. 494, Syl. ¶ 1, 186 P.3d 713 (2008). The standard of review of whether evidence is material is de novo. Reid, 286 Kan. at 505. The standard of review of whether the evidence is probative in the particular cases is reviewed under the abuse of discretion standard. Reid, 286 Kan. at 509. Finally, even if evidence is material and probative, the trial court must determine whether the evidence is unduly prejudicial. The appellate court reviews the determination of whether evidence is unduly prejudicial under the abuse of discretion standard. Reid, 286 Kan. at 509.
Here, before his second trial, Blaurock moved to exclude evidence of his conviction in the first trial for aggravated indecent liberties and evidence relating to the alleged sexual acts that occurred after April 30, 2005, and before May 25, 2005, of which he had been acquitted. Concerning the June 1, 2005, incident, Blaurock moved to prohibit the State’s witnesses from testifying to any alleged sexual acts other than those encompassed in the aggravated criminal sodomy count. On the morning of his second trial, Blaurock also moved to exclude the DNA evidence from the alleged June 1, 2005, incident. This last motion was argued at the beginning of the second day of trial. The trial court denied Blaurock’s motions in limine and allowed the evidence to be admitted.
At trial, the State presented testimony from C.S. about the sexual intercourse that occurred between her and Blaurock on June 1, 2005. In addition, Officer Pena, as well as the nurse and doctor at the hospital, testified about C.S.’s description of the June 1, 2005, sexual intercourse. Moreover, Officer Pena and D.P. testified that C.S. had said that Blaurock had “raped” her on June 1, 2005. Further, the State introduced the results of the DNA evidence recovered from the vaginal swabs and C.S.’s underwear after the June 1, 2005, incident.
Concerning the May 25, 2005, incident, the State presented a photograph of an adult male performing sodomy on a young female, which was not part of the subject criminal charges. Concerning the sexual acts that occurred after April 30, 2005, and before May 25, 2005, the State presented testimony from C.S. C.S.’s testimony about the sexual acts occurring during that time period was vague, with C.S. recounting only one specific incident when she and Blaurock had had sexual intercourse three times in 1 day after Blaurock had told her that she was pregnant. Even concerning that particular incident, C.S.’s testimony was very brief and did not include where the incident took place or whether Blaurock used any violence during the incident. The State also presented a videotape of C.S.’s interview at the Sunflower House in which C.S. referred to the alleged sexual acts that occurred after April 30, 2005, and before May 25, 2005.
A. Failure to make contemporaneous objection
When the other crimes evidence was presented to the jury, Blaurock-failed to make a contemporaneous objection to the admission of the evidence. Moreover, Blaurock has failed to point to anywhere in the record where he made a continuing objection to the other crimes evidence. To preserve an issue relating to the admissibility of evidence for appeal, a party must make a timely and specific objection. K.S.A. 60-404. Even if there is an in limine ruling that the evidence is admissible, where an objection to the evidence is not made when it is introduced at trial, the defendant is generally precluded from challenging its admissibility on appeal. See State v. Carapezza, 286 Kan. 992, Syl. ¶ 7, 191 P.3d 256 (2008) (where defendant objected to evidence only on hearsay grounds, she failed to preserve for appeal the issue of the inadmissibility of the evidence under K.S.A. 60-455); State v. Francis, 282 Kan. 120, 138, 145 P.3d 48 (2006) (where defendant failed to object at trial to the admission of evidence under K.S.A. 60-455, he was precluded from raising the issue on appeal); State v. Young, 14 Kan. App. 2d 21, 37, 784 P.2d 366, rev. denied 245 Kan. 788 (1989) (To preserve a K.S.A. 60-455 issue for appeal, a defendant must object on that ground at trial.). Blaurock, by failing to object, waived any challenge to the trial court’s admission of the other crimes evidence. As a result, consideration of Blaurock’s argument concerning the erroneous admission of evidence is precluded by his failure to make a contemporaneous objection. Nevertheless, even if Blaurock had preserved this issue for appeal, his argument would still fail based on the following analysis.
B. Admissibility of other crimes evidence under State v. McHenry
In denying Blaurock’s motions in limine to exclude the prior crimes evidence, the trial court held that the evidence was relevant to show a continuing course of conduct between Blaurock and C.S. In State v. McHenry, 276 Kan. 513, 78 P.3d 403 (2003), our Supreme Court held that the admission of other crimes and civil wrongs evidence could be admitted independent of K.S.A. 60-455 to show a continuing course of conduct between an adult defendant and a child victim. Citing State v. Crossman, 229 Kan. 384, 387, 624 P.2d 461 (1981), our Supreme Court stated:
“ ‘In cases of crimes involving illicit sexual relations or acts between an adult and a child, evidence of prior acts of similar nature between the same parties is admissible independent of K.S.A. 60-455 where the evidence is not offered for the purpose of proving distinct offenses, but rather to establish the relationship of the parties, the existence of a continuing course of conduct between the parties, or to corroborate the testimony of the complaining witness to the act charged.’ ” 276 Kan. at 520.
C. Analysis under State v. Gunby
Nevertheless, in State v. Gunby, 282 Kan. 39, 57, 144 P.3d 647 (2006), our Supreme Court held that “any and all other crimes and civil wrongs” evidence would be subject to K.S.A. 60-455. K.S.A. 60-455 states:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit [a] crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
Under the plain and unambiguous language of K.S.A. 60-455, evidence of prior crimes or civil wrongs cannot be admitted to prove a criminal defendant’s propensity to commit the charged crime, but it can be “admissible when relevant to prove some other material fact.” Gunby, 282 Kan. at 48.
One of our Supreme Court’s most recent cases focusing on K.S.A. 60-455 evidence is Reid, 286 Kan. 494. In Reid, our Supreme Court clarified the analysis to be applied to K.S.A. 60-455 evidence:
“[T]he K.S.A. 60-455 analysis requires several steps. . . . [T]he court must determine that the evidence is relevant to prove a material fact, e.g., motive, knowledge, and identity. The court must also determine that the material fact is disputed. Additionally, the court must determine that the probative value of the evidence outweighs the potential for producing undue prejudice. Finally, the court must give a limiting instruction informing the jury of the specific purpose for admission whenever 60-455 evidence comes in. [Citations omitted.] As we explained in [State v.] Gunby, [282 Kan. 39, 48, 144 P.3d 647 (2006)]: ‘These safeguards are designed to eliminate the danger that the evidence will be considered to prove the defendant’s mere propensity to commit the charged crime.’ [Citation omitted.]” 286 Kan. at 503.
In Gunby, our Supreme Court, citing McHenry, recognized that it had previously approved of the admission of other crimes and civil wrongs evidence, involving illicit sexual relations between an adult and a child, independent of K.S.A. 60-455 to show a continuing course of conduct on a defendant’s part. 282 Kan. at 56. The Gunby court also discussed other bases on which it had previously admitted other crimes and civil wrongs evidence independent of K.S.A. 60-455. Determining that other crimes and civil wrongs ev idence would no longer be admissible independent of K.S.A. 60-455, however, our Supreme Court stated:
“Our increasingly elastic approach to the admission of evidence of other crimes and civil wrongs is overdue for correction, as are the two problems that gave rise to the practice of admitting such evidence independent of K.S.A. 60-455.
“We hereby state unequivocally that the list of material facts in K.S.A. 60-455 is exemplary rather than exclusive. It may be that other crimes and civil .wrongs evidence is relevant and admissible to prove a material fact other than the eight listed. Should this be a district judge’s determination; however, the evidence must be subjected to the same sort of explicit relevance inquiries, particularized weighing of probative value and prejudicial effect, and prophylactic limiting instruction we have required when any other K.S.A. 60-455 evidence is admitted.
“This enables our return to sensible application of K.S.A. 60-455 and puts an end to the practice of admission of other crimes and civil wrongs evidence independent of it. It recognizes that the list in the statute has always been inclusive rather than exclusive, and that the several ways around application of and safeguards attendant to K.S.A. 60-455 must be abandoned, not only because they lack reliable precedent but because drey were never necessary in the first place. Other crimes and civil wrongs evidence that passes the relevance and prejudice tests we have set up and is accompanied by an appropriate limiting instruction should always have been admissible, even if the particular material fact on which it was probative was not explicitly set forth in the statute. It never actually required a specially designed rule to admit it independent of the statute. Rather, such evidence, if permitted to do so, would have fallen squarely within it. We disapprove any language to the contrary in our previous opinions. Henceforth, admissibility of any and all other crimes and civil wrongs evidence will be governed by K.S.A. 60-455.” (Emphasis added.) 282 Kan. at 56-57.
Thus, under Gunby, all other crimes evidence must be analyzed under K.S.A. 60-455 to determine whether the evidence is admissible.
Recently, in State v. Vasquez, 287 Kan. 40, 50, 194 P.3d 563 (2008), our Supreme Court held that Gunby applies to a case that was on direct appeal when Gunby was filed. Gunby was filed on October 17, 2006. Because the instant case was on direct appeal when Gunby was filed, the analysis in Gunby applies here.
Although Gunby might have ended the type of analysis independent of K.S.A. 60-455 that was done in previous cases, it did not necessarily change the result as long as the proper analysis is performed. As set forth previously, this analysis requires a court to determine that the evidence is relevant to prove a material fact; that the fact is disputed; that the evidence is more probative than prejudicial; and that an appropriate limiting instruction is given. Here, the trial court never performed that particular analysis in admitting the other crimes evidence. Nevertheless, the Gunby court recognized that even if those steps are not performed, the error may be harmless: “We explicitly recognize that the admission of K.S.A. 60-455 evidence without the explicit relevance inquiries, particularized weighing of probative value and prejudicial effect, or prophylactic limiting instruction is not inevitably so prejudicial as to require automatic reversal. On the contrary it may be harmless.” 282 Kan. at 57.
Our analysis now shifts to whether the other crimes evidence was relevant to prove a material fact under K.S.A. 60-455. In this case, the trial court held the evidence was admissible to prove a continuing course of conduct and the relationship of the parties. Neither of those factors are explicitly listed in K.S.A. 60-455. Gunby clarified, however, that the list of material facts in K.S.A. 60-455 is exemplary rather than exclusive.
Nevertheless, the State does not argue that “continuing course of conduct” and “relationship of the parties” are still viable material facts under a K.S.A. 60-455 analysis. Moreover, since Gunby, our Supreme Court has not recognized “continuing course of conduct” and “relationship of the parties” as material facts under a K.S.A. 60-455 analysis. In fact, in State v. Warledo, 286 Kan. 927, 941, 190 P.3d 937 (2008), our Supreme Court recently recognized that the trial court’s rationale for admitting other crimes evidence to show “relationship of the parties” was improper:
“At the time of Warledo’s trial, evidence was admissible independent of K.S.A. 60-455 for the purpose of showing the relationship of the parties and did not require a limiting instruction. [Citations omitted.] In Gunby, 282 Kan. at 57, this court explicitly abolished this exception, holding that the admission of all evidence of other crimes and civil wrongs must be analyzed under K.S.A. 60-455. Hence, to the extent the trial court reasoned the [other crimes] evidence . . . [was] admissible to show the relationship between Warledo and his mother, such rationale was improper.” 286 Kan. at 942.
Importantly, Warledo is factually distinguishable from this case in that the other crimes evidence in Warledo related to violence by the defendant against his mother (the victim), which involved discordant relationship-type evidence. On the other hand, the other crimes evidence in this case related to illicit sexual relations between an adult defendant and a child victim. Nevertheless, under the broad statement in Warledo, it would seem that this type of evidence is no longer admissible to show “relationship of the parties.”
Currently, there appears to be no case by our Supreme Court that has yet recognized the admission of other crimes evidence based on a material fact not explicitly set forth in K.S.A. 60-455. In State v. Warledo, 286 Kan. at 941 (2008), our Supreme Court stated: “[Application of K.S.A. 60-455 requires determination of whether the evidence relates to a prior crime or civil wrong and, if so, whether it is admitted solely to prove propensity or whether it is relevant to prove some material fact other than propensity. See Gunby, 282 Kan. at 48.” (Emphasis added.) In McHenry, our Supreme Court explained why the nonpropensity uses of ongoing sexual misconduct were relevant in crimes involving illicit sexual relations or acts between an adult and child. Because the evidence regarded the same victim in McHenry, it did not rely on the general propensity inference prohibited by K.S.A. 60-455. Instead, the evidence was relevant to show the timing of the past complaint in the context of other family dynamics at the time and was also relevant to show why the child victim had not come forward and why past complaints had not resulted in action by those in authority. 276 Kan. at 521. See 3 Barbara, Kansas Law and Practice, Lawyer’s Guide to Evidence § 5:6 (5th ed. 2007) (recognizing that the McHenry court explained the “nonpropensity” uses of other crimes evidence between an adult defendant and a child victim).
It would be an interesting question whether other crimes evidence, in cases involving illicit sexual relations between an adult defendant and a child victim, would be admissible to show corroboration of the child victim. One of the reasons given by the McHenry court for admission of other crimes evidence in cases involving illicit sexual relations or acts between an adult and a child was “ ‘to corroborate the testimony of the complaining witness to the act charged.’ ” 276 Kan. at 520. In cases where the adult de fendant challenges the child victim’s failure to immediately report as part of the defense that the child victim made up the allegations, it seems that the State should be able to counteract this defense by presenting evidence showing why the victim would not have immediately reported and corroborating the child victim’s testimony. It appears that such evidence would more appropriately come in during rebuttal, once the defendant has challenged the child victim’s credibility and failure to immediately report.
In the instant case, part of Blaurock’s defense was to challenge the veracity of C.S. During cross-examination of the State’s witnesses at trial, Blaurock highlighted the fact that C.S. had not immediately reported the alleged sexual abuse. Blaurock’s defense was that C.S. had made up the allegations, possibly with Tammy’s help, for spite or to get him out of the picture. By presenting evidence that C.S. had failed to report the sexual acts immediately, Blaurock was arguing either directly or indirectly that the crime never occurred or that C.S. should not be believed in some or all of her testimony. Based on Blaurock’s defense, the other crimes evidence, particularly the DNA evidence and the picture depicting an adult male, would corroborate C.S.’s testimony. Nevertheless, because our Supreme Court since Gunby has never approved the admission of K.S.A. 60-455 evidence on the ground that it is relevant to show corroboration of the child victim, we make no decision on this basis.
D. Identity
1. Other Crimes Evidence From the May 25, 2005, and June 1, 2005, Incidents
a. Relevance, Probativeness, and Materiality
Nevertheless, it is unnecessary to determine whether the other crimes evidence in this case was admissible to prove a fact not specifically listed under K.S.A. 60-455. That is because the trial court easily could have found a legal basis for admitting the evidence to show “identity” under K.S.A. 60-455. Although the trial court did not rely on identity under K.S.A. 60-455 in admitting the other crimes evidence, this court can affirm the trial court’s decision on that ground. If a trial court reaches the right result, its decision will be upheld even though the trial court relied upon the wrong ground or assigned erroneous reasons for its decision. The reason given by the trial court for its ruling is immaterial if the result is correct. State v. Murray, 285 Kan. 503, 533, 174 P.3d 407 (2008). In Reid, 286 Kan. 494, Syl. ¶ 7, our Supreme Court recognized that a trial court’s decision to admit evidence under K.S.A. 60-455 will not be reversed if it was right, but for the wrong reason.
Blaurock’s identity as the perpetrator of the crimes and as the man depicted in the pictures from the June 1, 2005, incident was crucial to the State’s case in the second trial. Blaurock placed his identity in issue when he took the stand at both trials and denied that he was the perpetrator of the sexual acts. The State had presented testimony from C.S. about the alleged sexual acts. In addition, the State had presented the jury with pictures of C.S. and a male engaged in sexual misconduct. C.S. had identified Blaurock as the perpetrator of the crimes and as the man in the pictures. In addition, C.S.’s mother had identified Blaurock as the man in the pictures. During his testimony, however, Blaurock denied that he had engaged in sexual misconduct with C.S. and that he was the man in the pictures with C..S. Blaurock went so far as to testify about a hernia in his pelvic area, which the man in the pictures did not appear to have. Moreover, much of Blaurock’s testimony indicated that he had not even been home when the alleged sexual misconduct acts had occurred. Finally, Blaurock testified that he was lying when he admitted in his letters that he had had sexual intercourse with C.S. As a result, Blaurock’s identity as the perpetrator of the crimes was a disputed material fact in the case.
The other crimes evidence from the May 25, 2005, incident and the June 1, 2005, incidents that was introduced by the State was relevant to prove Blaurock’s identity as the perpetrator of the crimes. Specifically, the sodomy picture from the May 25, 2005, incident showed a portion of a man’s face and hair, which would have been relevant to the jury’s determination as to whether Blaurock was the person depicted in the picture committing the alleged sexual misconduct with C.S. Additionally, the DNA evidence recovered from C.S. and the underwear she wore on June 1, 2005, were also relevant to prove Blaurock’s identity as the perpetrator of the alleged crimes. Consequently, the other crimes evidence was relevant and had a logical connection to a material disputed fact in the case: Was it Blaurock or some other male engaged in sexual misconduct with C.S.?
The instant case is analogous to State v. Johnson, 222 Kan. 465, 469, 565 P.2d 993 (1977), and State v. Henson, 221 Kan. 635, 562 P.2d 51 (1977). In Johnson, the appellant contended that the identity of the murderer was not an issue in the case. As a result, a witness’ testimony was inadmissible under K.S.A. 60-455. The witness’ testimony had been offered and admitted to prove identity. The appellant argued that identity was not at issue because he admitted being at the scene and saw another man attacking the victim.
In addressing the appellant’s argument, our Supreme Court looked to its earlier decision in Henson, where it had considered the same issue. In Henson, the defendant admitted being in the apartment when the female victim was murdered and testified that he went to the apartment to sell drugs to someone else. The defendant testified that when he arrived, the individual to whom he was selling drugs was not there, and the naked body of the victim was lying on a bed in the apartment. Identity was held to be substantially at issue in Henson. Our Supreme Court similarly held that identity was in issue in Johnson where the appellant identified someone else as the murderer and denied the charges by the State. 222 Kan. at 469-70.
What our Supreme Court said in Johnson and Henson applies equally to this case. Although Blaurock had been present in C.S.’s home on May 25, 2005, and June 1, 2005, he maintained that he was not the one who had engaged in sexual misconduct with C.S. Blaurock alleged that he had suspected C.S. was having sex with “Derek” or another boy after examining her underwear. Analogizing Johnson and Henson to this case, we determine that identity was substantially in issue here where Blaurock identified someone else as engaging in sexual intercourse with C.S. and denied the charges filed against him.
Important to this analysis, our Supreme Court has held that in order for other crimes evidence to be admitted to show identity, the crimes must be similar in nature. Citing State v. Blackmore, 249 Kan. 668, Syl. ¶ 4, 822 P.2d 49 (1991), our Supreme Court in State v. Higgenbotham, 271 Kan. 582, 589, 23 P.3d 874 (2001), stated:
“ “Where a prior conviction is offered for the purpose of proving identity, the evidence should disclose sufficient facts and circumstances of the offense to raise a reasonable inference that the defendant committed both offenses. Similarity must be shown in order to establish relevancy. It is not sufficient simply to show that the offenses were violations of the same or similar statutes; there should be some evidence of the underlying facts showing the manner in which the other offense was committed so as to raise a reasonable inference that the same person committed both offenses. However, die prior offenses need only be similar, not identical, in nature.’ ”
The other crimes evidence was sufficiently similar to the charged crimes to be admissible. All of the crimes were between Blaurock and C.S. The crimes always occurred during the week, and Blaurock waited to commit the crimes until after Tammy left for work in the morning. Moreover, part of the other crimes evidence was from the incidents on May 25, 2005, and June 1, 2005. The crimes that occurred on May 25, 2005, and June 1, 2005, involved sexual intercourse and then sodomy, took place in Blaurock’s bedroom, and involved photographing the sexual acts. Due to the similar nature of the crimes, the evidence was relevant to show identity.
b. Probative v. Prejudicial
There is no question that the other crimes evidence from May 25, 2005, and June 1, 2005, was prejudicial to Blaurock. The other crimes evidence established his identity as the perpetrator of the crimes against C.S. Recently, in State v. Prine, 287 Kan. 713, 200 P.3d 1 (2009), our Supreme Court stated that it is not concerned “with the garden-variety prejudice necessary for any successful prosecution. We are concerned only with undue or unfair prejudice. [Citation omitted.]” The record in this case demonstrates that no undue prejudice resulted from the admission of the other crimes evidence.
As set forth previously, the other crimes evidence from May 25, 2005, and June 1, 2005, was probative to establish identity. Part of Blaurock’s defense in the case was that C.S., along with possibly her mother s help, had set him up and had falsely implicated him as the peipetrator of the alleged crimes. Moreover, Blaurock denied that he was the man in the pictures engaged in sexual misconduct with C.S. With this defense, the DNA evidence from the June 1, 2005, incident and the picture from the May 25, 2005, incident became key to establishing that Blaurock was the person who had committed the alleged crimes in this case. Any prejudicial effect was outweighed by the probative value of the other crimes evidence.
c. Limiting Instruction
The trial court did give a Hmiting instruction to the jury in this case. Although there was no specific limiting instruction given on identity, it is apparent that the trial court’s failure to anticipate and utilize the Gunby analysis was harmless error. The evidence against Blaurock was substantial, including his own admission in the letters that he had engaged in sexual misconduct with C.S. and the pictures that were hidden in C.S.’s garage. The juiy was instructed to limit its consideration of the evidence. We conclude that any error in the introduction of the other crimes evidence was harmless.
2. Other Crimes Evidence From Incidents Occurring After April 30, 2005, and Before May 25, 2005
We acknowledge that the State also introduced testimony from C.S. about the incidents that occurred after April 30, 2005, and before May 25,2005, which does not appear to be relevant to show identity. Nevertheless, this evidence was limited and vague. C.S. provided very few details about those incidents and only discussed one particular incident when Blaurock had told her that she was pregnant. Even regarding the one particular incident, C.S. did not testify about where the incident occurred or on what day the incident occurred. Based on the overwhelming evidence against Blaurock, which included the DNA evidence, the pictures, and his admissions in his letters, any erroneous introduction of the other crimes evidence that occurred after April 30, 2005, and before May 25, 2005, was harmless.
E. Plan
Finally, the trial court could have also found a legal basis for admitting the other crimes evidence to show “plan” under K.S.A. 60-455. As discussed in State v. Damewood, 245 Kan. 676, 681-83, 783 P.2d 1249 (1989), the concept of plan under K.S.A. 60-455 may relate to one of two theories. Under the first theory, the other crimes evidence is admissible “to show the modus operandi or general method used by a defendant to perpetrate similar but totally unrelated crimes.” 245 Kan. at 681-82. The rationale for admitting other crimes evidence to show plan under K.S.A. 60-455 is that “the method of committing the prior acts is so similar to that utilized in the case being tried that it is reasonable to conclude the same individual committed both acts.” 245 Kan. at 682. Our Supreme Court recently held that before a trial court admits evidence of prior bad acts to prove plan or modus operandi under K.S.A. 60-455, “the evidence must be so strikingly similar in pattern or so distinct in method of operation to the current allegations as to be a signature.” Prine, 287 Kan. 713, Syl. ¶ 6.
Our Supreme Court in Prine recognized that it has consistently recited two theories for the admission of K.S.A. 60-455 evidence to prove plan. Our Supreme Court has previously recognized that under the second theory, the other crimes evidence is admissible to show plan under K.S.A. 60-455 “where there is some direct or causal connection between the prior conduct and the crimes charged. [Citations omitted.]” 245 Kan. at 682-83. In other words, the other crimes evidence must show “some causal connection between the two offenses, so that proof of the prior offense could be said to evidence a preexisting design, plan or scheme directed toward the doing of the offense charged.” State v. Marquez, 222 Kan. 441, 446-47, 565 P.2d 245 (1977).
1. Relevance, Probativeness, and Materiality
Under the first theory, the other crimes evidence from the May 25, 2005, incident and the June 1, 2005, incidents was relevant to show the general method used by Blaurock to commit the crimes. As set forth in our discussion on “identity” earlier, the May 25, 2005, and June 1, 2005, crimes were strikingly similar in that they were between Blaurock and C.Sthey occurred on a weekday after Tammy had gone to work; they involved sexual intercourse and then sodomy; they were committed in Blaurock’s bedroom; and they involved photographing the sexual acts. Based on the record in this case, we determine that the method of committing the crimes was so strikingly similar in pattern to that utilized in the charged crimes that it constituted a signature. As a result, it was reasonable to conclude that the same individual committed all of the acts.
Moreover, the other crimes evidence from the sexual acts occurring after April 30, 2005, and before May 25, 2005, and the evidence from the particular incidents occurring on May 25, 2005, and June 1, 2005, would also be admissible to show plan under the second theory set forth previously. The only particular incident occurring between April 30, 2005, and before May 25, 2005, was the incident with the little white pills when Blaurock had told C.S. that she was pregnant. This evidence, along with the rest of the other crimes evidence, showed that Blaurock had developed a scheme to gain control over C.S. through progression: by isolating her from her friends and family, by developing a system of threats and rewards, by gradually introducing sodomy to the sexual acts committed, and by later taking pictures of the sexual misconduct. See State v. Fabian, 204 Kan. 237, 238, 461 P.2d 799 (1969) (Evidence of previous crimes was properly admitted to show a preconceived “creeping” plan to steal from a series of stores.). Stated another way, the other crimes evidence showed a step-by-step plan by Blaurock to break down C.S.’s resistance to engage in acts of sodomy and to allow the sexual acts to be photographed.
Blaurock placed this material fact of “plan” in issue when he denied sexually abusing C.S. Moreover, Blaurock’s testimony indicated that he did not have the opportunity to commit the alleged acts, that he had not threatened or isolated C.S. but had tried to be a good father figure to her, and that the gifts he had given her were done out of fatherly affection. Based on the appellate record in this case, we determine that the other crimes evidence was relevant to prove the disputed, material fact of plan under K.S.A. 60-455.
2. Probative v. Prejudicial
We move next to the balancing of probative value versus prejudicial effect. Under this part of the test, it is not enough that the evidence was prejudicial to Blaurock. In any criminal case, evidence introduced by the State will usually be prejudicial to a defendant. In order to be excluded under this step of the test, the unfair or undue prejudice arising from the admission of the evidence must substantially outweigh its probative value. See State v. Vasquez, 287 Kan. 40, 49, 194 P.3d 563 (2008). As set forth previously, the other crimes evidence introduced in this case was probative to show plan. Based on Blaurock"s defense of challenging C.S.’s veracity in this case, the evidence was necessary to show that Blaurock committed the acts in question and also to show Blaurock’s preexisting scheme to get C.S. to engage in the ongoing sexual abuse.
Moreover, even without the facts of the other crimes, the evidence against Blaurock was substantial. The facts submitted to the jury included the Sunflower House videotaped interview and testimony from C.S., C.S.’s mother, the examining nurse, and the interviewing detective. C.S. consistently identified Blaurock as the perpetrator of the sexual abuse and described the incidents that occurred between her and Blaurock. When the police attempted to contact Blaurock after C.S. reported the June 1, 2005, incident, Blaurock ran inside the house, locked the door, and attempted to leave out of a side door. After he was arrested, Blaurock asked whether the officer had any suggestions for life after this. Later, pictures of C.S. engaged in the sexual acts that she described were found hidden in the garage. In light of the substantial evidence against Blaurock and of the relevance of the evidence to show plan, any prejudicial effect of the other crimes evidence was outweighed by its probative value.
3. Limiting Instruction
As discussed previously, the trial court did give a limiting instruction to the jury in this case. .Here, the trial court instructed the jury that it could consider the other crimes evidence only “for the purpose of estabhshing the relationship of the parties and the existence of a continuing course of conduct.” This same instruction was given in State v. Elrod, 38 Kan. App. 2d 453, 462, 166 P.3d 1067 (2007), rev. denied 285 Kan. 1175 (2008), where this court stated that generally, “we believe limiting instructions such as this cure any error in the admission of the evidence.”
Although there was no specific hmiting instruction given on plan, the trial court’s failure to anticipate and utilize the State v. Gunby, 282 Kan. 39, 57, 144 P.3d 647 (2006), analysis was harmless error under the facts of this case. The evidence against Blaurock was substantial, including his own admission in the letters that he had engaged in sexual misconduct with C.S. and the pictures that were hidden in C.S.’s garage. The jury was instructed to limit its consideration of the evidence. We conclude that any error in the introduction of the other crimes evidence was harmless.
II. Did the trial court err in allowing an unredacted videotape to be given to the jury?
Next, Blaurock argues that the trial court erred in allowing the videotape of C.S.’s Sunflower House interview to be sent into the jury room without redacting the reference to Blaurock’s federal parole status.
When the Sunflower House interview videotape was introduced into evidence at the first trial, Blaurock failed to make a contemporaneous objection requesting redaction of the reference to his federal parole status. Moreover, Blaurock points to nowhere in the record where he requested redaction of the videotape to remove the reference to his federal parole status before the jury retired for deliberations.
Before his second trial, Blaurock filed a motion in Hmine in which he pointed out that he was currently on parole for possession of counterfeit cash, that he had previously been convicted of conspiracy to distribute marijuana, and that he had been found guilty of indecent liberties with a child at his first trial. Blaurock requested that the trial court exclude evidence of his prior convictions and his criminal history. Blaurock, however, failed to point out that the Sunflower House interview videotape contained a reference to his federal parole status. Moreover, he did not request redaction of the videotape to remove the reference to his federal parole status.
Blaurock later filed a second motion in limine in which he asked the trial court to order that the Sunflower House interview videotape be redacted to remove any mention of the alleged acts that occurred after April 30, 2005, and before May 25, 2005. Again, Blaurock failed to argue that the videotape should be redacted to remove reference to his federal parole status. Similarly, at the hearing on Blaurock’s motions in Hmine, Blaurock never requested redaction of the videotape to remove any reference to his federal parole status. Instead, Blaurock maintained that the videotape should be redacted to ehminate reference to the alleged acts that occurred after April 30, 2005, and before May 25, 2005.
In rejecting Blaurock’s argument concerning redaction of the alleged acts that occurred after April 30, 2005, and before May 25, 2005, the trial judge stated “I don’t think we can go into the videotape and cut everything out, and then all of a sudden, the first time there was ever anything between us was on May 25. I don’t know how you can do that.” The trial judge further stated that “I don’t really think that we can be slicing it up to take out individual things.” The trial court then asked whether there was anything in the videotape that had to be excluded in the first trial. The State responded that there was a reference to his federal parole status at the end of the videotape and that the videotape had been stopped at the first trial before the reference had been made. There was no objection at that point to the procedure used by the State in stopping the videotape.
Apparently, when the videotape was played to the jury at the second trial, it appears that the State did not play the portion of the videotape where reference was made to Blaurock’s federal parole status. Indeed, the parties acknowledge that the portion of the videotape in which reference was made to Blaurock’s federal parole status was never played to the jury at trial. Blaurock did not object to the State’s procedure in stopping the tape before reference was made to his federal parole status. Blaurock made no contemporaneous objection that the tape be redacted to remove reference to his federal parole status. Moreover, no such objection was made before the jury retired for deliberations in the second trial.
Although Blaurock alleges that the trial court allowed the entire videotape to go into the jury room, the record on appeal does not support his assertion. Blaurock has not come forward with any evidence to show that the Sunflower House videotape was taken into the jury room during deliberations. On the other hand, the record contains a court reporter’s exhibit list that was created at the time of the second trial in this case. The exhibit list contains a handwritten note “did not go to jury room” beside the listing for the Sunflower House videotape. Blaurock has provided nothing in the record that would show otherwise. As the appellant, Blaurock had the burden to designate a record sufficient to show his claimed error. Without such a record, his claim of alleged error fails. See State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008).
More important, Blaurock’s failure to ask the trial court for redaction of the videotape precludes appellate review of this issue. See State v. Anthony, 282 Kan. 201, 212-14, 145 P.3d 1 (2006) (holding that challenge to trial court’s failure to redact interrogation videotape to remove references to defendant’s lack of veracity requires preservation of issue at trial). “A party must make a timely and specific objection to the admission of evidence-at trial in order to preserve the issue for appeal. [Citation omitted.] Issues not raised before the trial court may not be raised on appeal. [Citation omitted.]” Anthony, 282 Kan. at 206. As a result, Blaurock’s argument that the tape should have been redacted before it was admitted into evidence and given to the jury is not properly before this court.
Because Blaurock failed to request redaction of the videotape at the trial court level, it is unnecessary to address Blaurock’s alternative argument that the trial court erred in failing to give a limiting instruction to the jury concerning his federal parole status.
111. Was Blaurock’s statutory right to a speedy trial violated?
Next, Blaurock asserts that the State violated his right to a speedy trial when it failed to bring him to trial within 90 days under K.S.A. 22-3402. The question of whether there was a violation of a de fendant’s statutory right to a speedy trial is a matter of law over which an appellate court exercises a de novo standard of review. State v. Mitchell, 285 Kan. 1070, 1080, 179 P.3d 394 (2008).
Moreover, Blaurock’s argument requires interpretation of K.S.A. 22-3402. Interpretation of a statute presents a question of law over which an appellate court has unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). An appellate court’s first task is to “ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007).
The statutory right to a speedy trial is set forth in K.S.A. 22-3402, which states in pertinent part:
“(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within 90 days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (5).
“(2) If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on die charge, such person shall be entided to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (5).
“(5) The time for trial may be extended beyond the limitations of subsections (1) and (2) for any of the following reasons:
(c) There is material evidence which is unavailable; that reasonable efforts have been made to procure such evidence; and that there are reasonable grounds to believe such evidence can be obtained and trial commenced within the next succeeding 90 days. Not more than one continuance may be granted the state on this ground, unless for good cause shown, where the original continuance was for less than 90 days, and the trial is commenced within 120 days from the original trial date;
“(6) In the event a mistrial is declared or a conviction is reversed on appeal to the supreme court or court of appeals, the time limitations provided for herein shall commence to run from the date the mistrial is declared or the date the mandate of the supreme court or court of appeals is filed in the district court.”
The State bears the burden of ensuring that the defendant is provided with a speedy trial under K.S.A. 22-3402. A defendant is not required to take any affirmative action to ensure that the defendant’s right to a speedy trial is observed. The defendant waives his or her statutory right to a speedy trial by requesting or acquiescing in the grant of a continuance. State v. Adams, 283 Kan. 365, 369, 153 P.3d 512 (2007).
The first trial in this case resulted in a mistrial on four counts due to a hung jury on December 2, 2005. See State v. McClain, 224 Kan. 464, 580 P.2d 1334 (1978) (applying K.S.A. 22-3402 and recognizing that mistrial occurs when jury fails to agree on verdict). The second trial was scheduled for February 13, 2006. The time between the mistrial and the scheduled second trial was 73 days. The State, however, moved to continue the case and argued that it needed additional time for analysis of the DNA evidence. The trial court granted the State’s motion to continue and set the case for April 3, 2006. The second trial in this case began on April 3, 2006. The time between the mistrial and the second trial was 122 days.
Before the second trial, Blaurock moved to dismiss the charges against him due to the State’s failure to bring him to trial within 90 days of the mistrial as required by K.S.A. 22-3402. At a hearing on Blaurock’s motion to dismiss, the trial court noted that it had granted the State’s motion for continuance due to the unavailability of the DNA evidence in time for trial. The trial court further noted that it also had considered the fact that Blaurock had already been convicted of one charge and was facing a 5-year prison sentence. Further explaining why it had granted the State’s motion to continue, the trial judge stated:
“If ail of these [current charges] had been dismissed, if they had been tried back there in Februaty when they were set and the Defendant was acquitted, that would have no effect on the tiling that he was still serving. He was not being held solely on these pending charges, as is required for the 90-day speedy trial to kick in. And certainly that played a part in whether or not I granted the State’s motion. It was for tile basis of getting evidence that they did not have readily available, but the fact that the Defendant was going to be with us for a number of months on the odier conviction very much played a part in that ruling.”
Accordingly, the trial court denied Blaurock’s motion to dismiss.
A. Did the trial court erroneously consider Blaurock’s conviction from his first trial?
Blaurock argues that the trial court, in finding no statutoiy speedy trial violation, erroneously looked to the fact that he had been convicted of one charge at the first trial. Blaurock cites State v. Thuko, No. 94,228, unpublished opinion filed January 12, 2007, rev. denied 284 Kan. 951 (2007), to support his argument. In Thuko, the State filed charges against the defendant in two criminal cases. The two cases were ultimately consolidated for trial. On appeal, this court rejected the defendant’s argument that his statutory right to a speedy trial had been violated. This court held that the defendant’s claim failed because the State had charged him with additional crimes in the second criminal case before the expiration of the 90-day period in K.S.A. 2005 Supp. 22-3402(1). Citing State v. Mann, 274 Kan. 670, 699, 56 P.3d 212 (2002), this court set forth the familiar rule that the statutory right to a speedy trial does not apply to defendants held in custody for any reason other than the subject criminal charge.
Blaurock contends that the Thuko panel’s reliance on the separate cases pending indicates that those cases triggered the 180-day time period under K.S.A. 22-3402. Blaurock suggests that because he had no other pending cases, the State was required to bring him to trial within the 90-day period of K.S.A. 22-3402.
Thuko does not support Blaurock’s argument. Blaurock has cited no authority to establish that the rule from Mann does not apply to the situation that is present in this case. Under the plain language of K.S.A. 22-3402(1), the 90-day statutory speedy trial requirement applies in those situations where a defendant is being held in jail “solely by reason” of the charge for which he or she is awaiting trial. Our Supreme Court in Mann clearly held “that the statutoiy right to a speedy trial does not apply to criminal defendants who are held in custody for any reason other than the subject criminal charge. [Citation omitted.]” (Emphasis added.) 274 Kan. at 699-700. In listing the circumstances under which the statutory speedy trial right had been found to apply, the Mann court cited State v. Ruff, 266 Kan. 27, 31, 967 P.2d 742 (1998), where the defendant was incarcerated on a prior conviction at the time of arraignment and until trial. Mann also cited State v. Strong, 8 Kan. App. 2d 589, 593, 663 P.2d 668 (1983), where there were numerous other charges against the defendant and the defendant was convicted of a felony between arraignment and trial and was being held in custody pending his sentencing. Here, Blaurock had been convicted of the felony crime of aggravated indecent liberties with a child at his first trial and was facing a presumptive prison sentence. Blaurock was awaiting sentencing when die second trial occurred in this case. Because Blaurock was not being held in custody solely for the subject criminal charges in his second trial, he fell within the rule announced in Mann. As a result, Blaurock’s statutory speedy trial rights were not violated.
The State maintains that Blaurock was also being held on a federal detainer from the District of Kansas for a parole violation. In State v. Smith, 271 Kan. 666, 682, 24 P.3d 727 (2001), our Supreme Court found that the statutory right to a speedy trial did not apply when the defendant was also being held on federal detainer. Moreover, in State v. Abel, 261 Kan. 331, 334, 932 P.2d 952 (1997), the statutoiy right to a speedy trial was found not to apply when the defendant was being held in jail for a parole violation. Nevertheless, while the record on appeal indicates that Blaurock was on federal parole, there is no evidence establishing that he was being held in jail for violation of his parole. At the hearing on Blaurock’s motion to dismiss, the trial court noted that there was nothing in the record to support the State’s assertion that Blaurock was being held in jail on a federal detainer. Without any evidence in the record showing that Blaurock was being held in jail for his parole violation between his first and second trial, this court cannot accept the State’s argument.
B. Did the trial court err in granting the State’s motion for a continuanceP
Next, Blaurock contends that the trial court erred in granting the State’s motion for a continuance between the first trial and the second trial to test DNA evidence. “K.S.A. 22-3401 provides a district court may grant a continuance ‘for good cause shown,’ and its refusal to grant a continuance will not be disturbed on appeal absent a showing of an abuse of discretion.” State v. Carter, 284 Kan. 312, 318, 160 P.3d 457 (2007).
Blaurock argues that the continuance granted to the State in this case violated his statutory right to a speedy trial Under K.S.A. 22-3402 because he was not brought to trial within 90 days. Nevertheless, as discussed previously, there was no violation of Blaurock’s right to a speedy trial because he was also in custody awaiting sentencing for his felony conviction of aggravated indecent liberties with a child.
Moreover, under K.S.A. 22-3402(5)(c), the 90-day statutory speedy trial period of K.S.A. 22-3402(1) can be extended to 180 days when material evidence is unavailable; reasonable efforts have been made to, procure such evidence; and there are reasonable grounds to believe the evidence can be obtained and the trial commenced within 90 days.
Here, in January 2006, the State moved to continue the trial set for February 6, 2006, and requested that it be given time to have the DNA .evidence that was collected as part of the sexual exam kit analyzed. The State maintained that it had not had the DNA evidence analyzed before the first trial because it had recovered pictures of the crimes while they were being committed and letters that Blaurock had written about his behavior. The State contended that it was reasonable not to have the DNA analyzed before the first trial when there was significant additional evidence, including Blaurock’s admission in his letters that he had-been engaged in sexual intercourse with C.S.
Further, the State asserted that it had not intentionally delayed having the DNA analysis completed. According to the State, the Kansas Bureau of Investigation (KBI) lab in Wyandotte County had only one individual to complete all of the DNA testing. The State maintained that it had been notified by the KBI that the vaginal swabs from C.S. had tested positive for seminal fluid and that the DNA analysis for the case could be completed by mid-March. The trial court granted the State a continuance in order to have the DNA evidence analyzed.
Blaurock argues that the State failed to prove that it had made reasonable efforts to procure the DNA evidence. Blaurock focuses on the fact that the State had possessed the DNA evidence before the first trial but had not had it analyzed until just before the scheduled second trial. Nevertheless, the trial court properly pointed out that the State had no obligation to bring DNA evidence forward at the first trial. Moreover, based on the pictures recovered from C.S.’s residence and Blaurock’s letters in which he admitted to sexual misconduct with C.S., it was reasonable for the State to conserve its time and resources in not immediately pursuing DNA analysis.
Once Blaurock denied any sexual misconduct with C.S. and testified that he lied in his letters, it became apparent that the DNA evidence was needed to corroborate C.S.’s testimony. Nevertheless, it was too late to obtain the DNA evidence for the first trial. Blaurock maintains that the State made no attempt to process the DNA evidence immediately after the first trial. When the State moved for a continuance of the second trial, however, only 7 weeks had elapsed since the jury rendered its verdict in tire first trial, and the State had already had some of the DNA evidence analyzed. This was in spite of the KBI lab having only one DNA analyst. Moreover, the State had ascertained that the analysis of the DNA evidence could be completed by mid-March and requested a continuance of less than 90 days.
Because the factors under K.S.A. 22-3402(5)(c) were met, the trial court was well within its discretion in granting the State’s request for a continuance. There was no abuse of discretion in the trial court’s decision. Accordingly, there was no speedy trial violation, and Blaurock’s argument fails.
TV. Was there cumulative errorP
Next, Blaurock argues that the combination of errors in this case deprived him of his right to a fair trial. Cumulative trial errors, when considered collectively, may be so great as to require reversal of a defendant’s conviction. The test to be used is whether the totality of the circumstances prejudiced the defendant and denied him or her the right to a fair trial. No prejudicial error may be found under the cumulative effect rule when the evidence is overwhelming against a defendant. State v. Nguyen, 285 Kan. 418, 437, 172 P.3d 1165 (2007).
Here, because Blaurock has failed to show that error occurred in this case, his cumulative error argument-fails. See State v. Davis, 283 Kan. 569, 583, 158 P.3d 317 (2007) (Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant.).
V. Did the trial court err in using Blaurock’s criminal history to increase his penalty?
Finally, Blaurock argues that the trial court erred in using his criminal history to increase his penalty when the State failed prove his criminal history to a jury beyond a reasonable doubt. Blaurock concedes that our Supreme Court has decided this issue adversely to his position in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). Further, more recent decisions by our Supreme Court have affirmed Ivory. See State v. Gonzalez, 282 Kan. 73, 145 P.3d 18 (2006). This court is duty bound to follow our Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Merrills, 37 Kan. App. 2d 81, 83, 149 P.3d 869, rev. denied 284 Kan. 949 (2007). Because there has been no indication that our Supreme Court is departing from its position in Ivory, we determine that the sentencing court properly considered BÍaurock’s criminal history in determining his sentence.
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Hill, J.:
In America, anyone accused of a crime has a constitutional right to confront those who accuse that person in court. Here, in a prosecution for rape and aggravated indecent liberties with a child, a victim under the age of 13 testified by closed-circuit television rather than in person before the defendant in the courtroom. Because the trial court made all the findings required by law before admitting this televised testimony, we hold the defendant’s right to confront his accuser was not compromised and uphold his convictions. Also, the prosecutor’s comment in closing argument suggesting that the victim’s testimony was consistent did not go beyond the limits of fair argument and was not misconduct compelling reversal. Therefore, we affirm.
This jury trial was the defendant’s second for these crimes.
The State charged Jorge Bejarano with one count of rape and one count of aggravated indecent liberties with B.G. His first trial resulted in a hung jury. During the first trial, the State called B.G. to testify. After she took her seat at the witness stand in the courtroom, B.G. was unable to testify and gave no oral responses to most of the questions about the sexual abuse allegations.
Before the second trial, the State asked the court to allow B.G. to testify by closed-circuit television under K.S.A. 22-3434. After inquiry and making various important findings, the court approved that request, and B.G. was able to effectively testify. In this second trial, the evidence revealed that starting when B.G. was 7 and through the time she was 9 years old, Bejarano often fondled her and on at least one occasion raped B.G. From her testimony, the jury convicted Bejarano of both rape and aggravated indecent liberties with a child.
In this appeal, asking us to overturn his convictions, Bejarano makes two arguments. First, he contends that the trial court denied his constitutional right to confront his accuser in court when it allowed the State to present B.G.’s testimony to the jury through the medium of closed-circuit television. Next, Bejarano argues his prosecutor improperly cross-examined him in an attempt to inflame the jury against him and that during the closing argument the State’s attorney flagrantly bolstered B.G.’s testimony to the extent that the remarks amounted to misconduct. We will address these two issues in that order.
We state the appropriate standard of review and discuss the statute concerning trial testimony via television.
Dealing with the legal propriety of televised testimony concerns the United States Constitution guaranty of the right to confront those who testify against a defendant, as well as an interpretation of the Kansas statute that serves as the exception to the right of face-to-face confrontation. The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him or her. This Sixth Amendment guarantee was made applicable to the States through the Fourteenth Amendment to the United States Constitution. See Pointer v. Texas, 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965); see also State v. Brown, 285 Kan. 261, 282, 173 P.3d 612 (2007). For criminal defendants in Kansas, the state constitution has preserved a similar right, where it provides: “In all prosecutions, the accused shall be allowed ... to meet the witnesses face to face.” Kansas Const. Bill of Rights, § 10; see Brown, 285 Kan. at 282.
Nevertheless, Kansas law recognizes some unique circumstances where the testimony of a child victim is admissible even though the defendant and the child victim witness are not in the same room when the testimony is given. K.S.A. 22-3434 affords the trial court an opportunity to use closed-circuit televison in certain cases:
“(a) On motion of the attorney for any party to a criminal proceeding in which a child less than 13 years of age is alleged to be a victim of tire crime, subject to the conditions of subsection (b), the court may order that' the testimony of the child be taken:
(1) In a room other than the courtroom and be televised By closed-circuit equipment in the courtroom to be viewed by the court and the finder of fact in the proceeding; . . .
“(b) The state must establish by clear and convincing evidence that to require the child who is the alleged victim to testify in open court will so traumatize the child as to prevent the child from reasonably communicating to the jury or render the child unavailable to testify. The court shall make such an individualized finding before the state is permitted to proceed under this section.”
Obviously, these are questions of law, and we will employ an unlimited review over them. “Issues related to confrontation under the Sixth Amendment to the United States Constitution or the Kansas Constitution Bill of Rights, § 10 raise questions of law over which [an appellate] court exercises de novo review.” Brown, 285 Kan. at 282.
The trial court made all of the required findings.
There are three foundational findings a trial court must make before allowing a child victim witness to testily by closed-circuit television:
“(1) hear evidence and determine use of [the] one-way closed circuit television procedure is necessaiy to protect the welfare of the particular child witness who seeks to testify; (2) find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant; and (3) find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than mere nervousness or excitement or some reluctance to testify.” State v. Blanchette, 35 Kan. App. 2d 686, 700, 134 P.3d 19, rev. denied 282 Kan. 792 (2006), cert. denied 549 U.S. 1229 (2007) (citing State v. Chisholm, 250 Kan. 153, 166, 825 P.2d 147 [1992]).
The trial court entertained testimony in support of the State’s motion to permit closed-circuit televised testimony. The judge heard from a psychotherapist, a social worker, and a victim/witness assistant from the District Attorney’s office on the point. Their testimony, when weighed with the judge’s own observations of B.G.’s conduct in the first trial, impelled the court to reach the conclusion that this procedure was appropriate in this case.
First, B.G.’s psychotherapist, Annette Rasmussen, testified it was difficult for B.G. to talk about the sexual abuse and that she was often unable to do so and “closed down” when the topic of the sexual abuse was raised. Rasmussen diagnosed B.G. with posttraumatic stress disorder as a result of the sexual abuse and explained that people diagnosed with this disorder often have intense psychological distress regarding anything that symbolizes or resembles the trauma that was suffered. Rasmussen said she tried to talk to B.G. following her testimony in the first trial, but whenever she brought up the courtroom, B.G. would become completely silent. The psychotherapist went on to say that if B.G. had to again testily in court before Bejarano and the juiy, it “could very possibly be traumatizing.” Further, Rasmussen testified such testimony would cause B.G. intense psychological distress and would increase her distrust of the world as a safe place. While she indicated B.G.’s progress in therapy regressed after the first trial, on cross-examination Rasmussen agreed that she could not say with any degree of medical certainty that it was B.G.’s testimony in the first trial that had the negative impact on her progress in therapy.
Then B.G.’s social worker, Amanda Staci, testified. Staci was assigned by the Wyandotte Center for Community Behavioral Health to work with B.G. on improving B.G.’s communication skills. Staci testified that anytime she tried to talk with B.G. about the sexual abuse, B.G. broke down and was unable to communicate. She also testified that when she tried to prompt B.G. to talk about the sexual abuse, B.G.’s psychological well-being deteriorated and she would withdraw, often cry, and appear very uncomfortable. When asked whether B.G.’s trauma would be increased if she was compelled to testify in open court again, Staci responded, “I think that there is a possibility that it can traumatize her. She’s been through a lot — I can’t even get her to communicate to me even one-on-one. I don’t know.”
After that, a victim/witness assistant from the District Attorney’s office, Angela Kolenda, testified. She told the court that B.G. spoke to her openly about the sexual abuse, but in the courtroom during the first trial, B.G. would not respond to questions about the sexual abuse. During that first trial, Kolenda asked B.G. why she was not answering questions in court and B.G. said it was because she could see Bejarano.
Additionally, the judge was able to use his own eyes and ears. Because this was the second trial of this matter, the judge had the benefit of observing B.G.’s terror on the witness stand. “The Court recalls vividly the difficulty the child had at the first trial,- and the marked difference between her demeanor in court and how it was at the time of the [videotaped] statement given to the Sunflower House.”
Finally, the judge made meticulous findings and concluded:
“Taking everything into consideration, this Court finds that the evidence presented, coupled with the observations by this Court at tire first jury trial, establishes by clear and convincing evidence that to require the child, the alleged victim in this case, to testify in open court in the presence of the defendant will traumatize the child to the extent as to prevent her from reasonably communicating to the jury or would render the child unavailable to testify. This Court further finds that the evidence establishes by clear and convincing evidence that the child witness will be traumatized by die presence of the defendant and not just the courtroom generally. The trauma to the child in this case is more than mere nervousness, and die evidence shows diat die child witness has suffered and will suffer trauma to a degree she will be unable to testify in the presence of the defendant, and that to force her to do so will cause long-lasting negative effects.”
We do not hesitate to say the trial court’s findings here are supported by substantial competent evidence. The court correctly followed the statutory procedure of entertaining evidence and making the required findings. The trial court here had compelling reasons to employ closed-circuit testimony of the child victim, and there is no good reason to reverse the court’s ruling. There is no reversible error here.
We find no misconduct by the prosecutor.
Initially, Bejarano complains about the State’s attorney asking him questions about the use of his home computer to view pornography. He argues “the State attempted to elicit testimony about pornography which may have been on Mr. Bejarano’s computer.” Bejarano’s trial counsel objected to this line of questions, and the trial court sustained the objection. We point out the obvious: Any potentially irrelevant material was never admitted to the jury. A mere attempt by the State to ask questions about the use of the computer, under the circumstances here, does not rise to the level of prosecutorial misconduct.
Next, Bejarano contends the prosecutor made improper comments during closing argument by bolstering B.G.’s veracity:
“[B.G.] was able to remember that detail. ‘I told him to stop because it hurt.’ She’s given us a lot of details. She’s been consistent with those core details.
“Have tiiey changed a littie bit from time to time? Yeah. A year later now she didn’t tell us yesterday about the touches on the back.
“She didn’t tell us about the touches on the chest, but the core details about touching with his hands to her private parts and with his private part to her private part have remained consistent.
“Consistency is a key. Because if a child is lying, if tire child like [B.G.], as young as she is, is lying about the core details, then you usually can’t keep them all straight. They forget what they told somebody, and they’ll tell somebody something completely different next time.”
Here we follow our normal procedure when ruling on such an issue. Appellate review of an allegation of prosecutorial misconduct requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007).
For support, Bejarano cites State v. Pabst, 268 Kan. 501, 505, 996 P.2d 321 (2000), where the court examined a case where the prosecutor repeatedly called the defendant a liar during closing arguments while also maintaining that the prosecution was telling the truth. That case certainly differs from the facts here. The prosecutor did not personally interject her belief of B.G.’s veracity. Rather, she pointed out to the juiy why it should believe B.G. She pointed out the consistencies in B.G.’s testimony but clearly left the ultimate determination of credibility to the juiy. We view the prosecutor’s comments to be within the wide latitude allowed in discussing the evidence. Therefore, we need not take up the second step in the misconduct analysis. There is no reversible error here.
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Opinion by
Clogston, C.:
The first question is, what errors are presented by the record? The motion for a new trial presents but two grounds therefor: First, “the judgment is contrary to law, and is not sustained by sufficient evidence.” Second, “in the amount of recovery, the same being too large.” Was the judgment contrary to law? It was founded, first, upon the promissory notes executed by the defendant Cooper, which is pot denied; second, upon the guaranty bonds of all the defendants, which bonds guaranteed that Cooper would pay for all merchandise, machines and goods received by him from the plaintiff. The defendants did not claim that the conditions of these bonds were complied with; and upon a breach of the conditions thereof plaintiff had a cause of action. So by the admission of the indebtedness the liability on the bonds was admitted. But plaintiffs in error insist that, as the amended answer to the first suit was not denied by a reply, it must be taken as true. This is the general rule, and if a reply was necessary, then the plaintiffs in error are correct aud no judgment should have been rendered upon the bond in the first suit. This answer alleges the taking up of the first bond and the giving of a new one in its stead, which left but one guaranty bond in force upon which the defendants would be liable, and that bond being for only $600. But we think the plaintiffs in error are in error in this claim. The amended answer was denied by the reply filed to the first answer, and in the new answer only such things were admitted as were not included in the first. The allegations in the first answer were the same in regard to the giving of the new bond and the taking up of the old one as in the second. This was controverted by a general denial, which was not withdrawn. This left admitted only that certain notes were held by the plaintiff upon which it had made some collections, and asked for an accounting. This new matter must be taken as true unless denied. (Brookover v. Esterly, 12 Kas. 149; Kuhuke v. Wright, 22 id. 467.) The new matter contained in this answer is very indefinite; no description of the notes was given; how many, by whom given, the amount of each, when due, or the probable amount collected thereon; nothing but a general allegation that some notes were held by the plaintiff as collateral security, and that upon these notes some amount had been received. If a reply was necessary, (which we think doubtful,) then such a reply was waived, for no objection was made on the trial to such failure. An accounting was then had as if a reply had been filed. (Nettcott v. Porter, 19 Kas. 131, and cases therein cited.)
This leaves but one question: Were the findings and judgment sustained by sufficient evidence, and is the amount of the recovery too large ? This question involves a review of the evidence, and after a careful examination we find evidence tending to sustain the judgment of the court upon each and every item set out in plaintiff’s petition. This court has often decided that if there is any evidence which tends to sustain the findings and judgment it will not review or reverse a case because a judgment is not sustained by the weight or preponderance of the evidence.
The question, whether a new bond had been given by the defendants on the agreement that the old one was to be taken up and canceled, was a disputed question, and there was strong evidence offered tending to show this fact, and some evidence by the plaintiff to show that it was given to secure plaintiff against loss on the further sales and advances to be made by it to the defendant E. Cooper, and that his indebtedness was largely increased after the giving of this new bond, tending to show that the defendant Cooper, as well as the plaintiff, regarded it as a security for these new advances and new indebtedness; but this question was one of fact, to be determined by the court or jury trying the cause, and we cannot say that the amount of recovery was too large under this evidence. "
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
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Green, J.:
Charles Hunter appeals from his jury trial conviction and sentence for battery of a law enforcement officer in violation of K.S.A. 21-3413(a)(3). First, Hunter contends that the trial court committed clear error based on the verdict form used in instructing the jury to consider Hunter’s defense of his mental disease or defect. We disagree. Based on the record in this case and under our Supreme Court’s decision in State v. White, 284 Kan. 333, 346-47, 161 P.3d 208 (2007), we find no clear error committed by the trial court in taking the verdict form in part directly from K.S.A. 22-3221.
Next, Hunter argues that the trial court violated his constitutional rights by not instructing the jury on the lesser included offense of battery. We again disagree. Because the evidence introduced at trial excluded a theory of guilt on the lesser included offense of battery, an instruction on battery would have been improper in this case. Finally, Hunter contends that the trial court erred in using his criminal history to increase his sentence. Nevertheless, Hunter concedes that this issue has been decided adversely to his position in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). Accordingly, we affirm.
Hunter has been incarcerated in various correctional facilities since 1978. When the incident occurred in this case, Hunter was incarcerated at Lamed State Correctional Facility. Hunter had been diagnosed with schizophrenia paranoid type and had suffered for many years from delusions that the devil was after him. Hunter had also been diagnosed with antisocial personality disorder and had a history of violence during his incarceration. Before the incident, Hunter had taken several different medications for his mental health issues.
On the afternoon of March 23, 2005, Eric Fox, an activity therapist at Lamed, was closing down activities for the day when Hunter took off his shoes and threw them in the equipment room. One of Hunter’s shoes struck Fox in the leg. Fox asked Hunter to pick up his shoes, but Hunter would not move. When Corrections Officer Shannon Herdt saw what had happened, Herdt came down the hallway and asked Hunter several times to put away his shoes to no avail. Herdt then ordered Hunter to put away his shoes. Nevertheless, Hunter refused to comply with Herdt’s order.
Corrections Officer Robert Witt, who was the yard officer that day, came inside, got close to Hunter, and told him that activities were over and that he needed to pick up his shoes. Hunter responded to Witt’s request by calling him names. Witt testified that Hunter was in a provoked state and that he had never seen Hunter so angry. At that point, a call for officer assistance was made. Hunter removed his belt and hit Witt between his eyes with the metal end of his belt. Witt immediately began bleeding. Witt attempted to wipe the blood from his eyes and hold Hunter off of him, but Hunter was able to hit him several times on the side of his head. Witt fell to the floor, and Hunter tried to kick him in the head. Witt was able to block Hunter’s kick with the back of his shoulder. The officers took Hunter to the ground. Hunter was handcuffed and taken immediately to the segregation unit.
Kimberly Ramsey was a corrections officer who delivered property to Hunter approximately 1 hour after the incident. According to Ramsey, Hunter was very calm and stated that he hoped he was taken downtown and charged for hitting Witt. Hunter told Ramsey that he was tired of dealing with people at Lamed and that he did not want it to end up as a disciplinary report.
Timothy Easley, an investigator at Lamed, was in the segregation unit approximately 1 week after the incident when Hunter stopped him and asked to talk with him. Easley testified that Hunter stated that he threw his shoes on March 23, 2005, because he was angry that the activities department was closing. According to Easley, Hunter stated that he refused to pick up his shoes to show he was rebelling because the activities time had ended. Hunter told Easley that he became more and more angry and that he snapped when the call for officer assistance was made. Hunter further told Easley that he was working with the mental health staff on his anger issues.
Hunter was charged with battery of a law enforcement officer in violation of K.S.A. 2004 Supp. 21-3413(a)(2); see K.S.A. 21-3413(a)(3). The trial court entered an order for evaluation of competency and mental examination under K.S.A. 22-3219 and K.S.A. 22-3302. After the evaluation had been completed, the trial court found that Hunter was competent to stand trial.
Hunter s defense at trial was that he suffered from a mental disease or defect that rendered him incapable to form the requisite intent to commit the crime of battery of a law enforcement officer. Hunter testified at trial that before the March 23, 2005, incident, he was very paranoid because he thought that Satan was going to try to kill him because he had turned against Satan. When questioned further, Hunter explained as follows:
“[B]efore I came to prison, I was speaking to some witches and this smoke come down and they read my palm, it said I was the chosen one. And later on I went to a little park and sat on the merry-go-round and saw a little tiny man, of small stature talking to me and he made the merry-go-round go around and around and around. And I liked it turning. And we went up into the sky and the spirit and we started talking and I met God in such a way that I saw angels. He had no head, but I, you know, it was not a face, but actually] a body and as he let me read a bible certain scriptures and things were actually happened as I was reading. For example, I saw a beast. And when I looked there was a beast coming up out of the top of the water, but to make a long story short, me and Satan was talking and he knew I was going to go to prison.
“So, he asked me what would my number be and I told him 37366. He mumbled real soft 666. I said no, 37366. So, they arranged for me to have a prison number and Satan read the scripture. And then there was a serpent and the serpent said I would turn on him. Then I said what do you mean? He said it is going to turn on you. He said what’s going to turn on me. I said I don’t know. I didn’t know.
“And later on I find out that before I went to prison, I read a scripture and as to when I left, in the end sayeth the Lord, and more on that day, in that moment if I was to turn over and over and over again. And should be no mortal till he comes. I would give him — he was talking about this situation in my life, like prison and so on and so forth.”
Hunter testified that before the incident on March 23, 2005, he was having problems with “the devil” and with people that he sensed were the devil’s “servants.” Just before the incident, Fox had noticed that Hunter was walking rapidly around the activities square. According to Hunter, when he was pacing in the square just before the incident, he was having thoughts of the devil’s force. Hunter testified that when Fox was talking to him about his shoes, he was talking to someone else in his head and could not understand what Fox and the officers wanted him to do. According to Hunter, when Witt appeared real close to him, he thought it was the devil. Moreover, when the call for officer assistance was made, he thought “they” were finally going to come get him, and so he took off his belt and tried to keep “him” back by using his belt. Hunter testified that he thought it was the devil coming at him and fighting him.
The day following the incident, Hunter wrote a letter in which he stated: “I am the one omen illuminati and I love you but I need to be appropriated. Sorry, but I am a god man a son of man.” Hunter signed the letter: “To Wit: Kiss, the rock group Kiss, signed the Lord our righteousness. Dr. Rock.” When asked what was “illuminati,” Hunter explained that “[i]t has to do with the symbol on the back of a dollar, sometimes refer to that as the Eye of Ra, that’s my birthmark and so on and so forth.”
Jan Kolb is a mental professional who had worked with Hunter at Lamed and had evaluated Hunter 4 hours after the March 23, 2005, incident. Kolb testified that before the incident happened on March 23, 2005, she had noticed that Hunter was beginning to struggle. In her written evaluation, Kolb wrote that Hunter had recently been acutely psychotic and had not returned to his pre vious level of functioning. Kolb also noted that Hunter appeared to be angry due to not being released by the parole board.
Psychologist William Albott evaluated Hunter on September 29, 2006, at Lamed. At trial, Albott testified that in his professional opinion when the March 23, 2005, incident occurred, Hunter was functioning in an acute psychotic state. The eyidence at trial showed that several days before the March 23, 2005, incident, .one. of Hunter’s medications had been discontinued. Moreover,, the dosage of one of Hunter’s psychotropic medications had been doubled. The medication was increased because; Hunter had been hearing voices, had been more delusional, and had experienced increased agitation. Albott testified that this medication change,indicated that Hunter had been deteriorating for days preceding the incident. •
Albott noted that there was a convergence of several things leading up to the March 23, 2005, incident, including the distress of his parole hearing, Hunter’s deteriorating state, one of his medications being discontinued, and Hunter’s lack of sleep. Albott testified that it took very little to push Hunter over the edge and that he had acted in a psychotic manner. Albott testified that all of the testimony he had heard and the evidence he had reviewed supported that Hunter had experienced a psychotic breakdown rather than a deliberate willful act on his part.
Kathy Spade testified that she had known Hunter for a long time and had worked on Hunter’s unit at the Lamed State Security Hospital in the 2 months leading up to the trial. Spade testified that Hunter was currently on 10 medications and-that he was stabilized and functioning well. Moreover, Spade testified that Hunter had not exhibited any antisocial behavior. Nevertheless, Spade testified that even with all his medications,. Hunter has a fixed delusional process that he discusses daily. Spade explained that Hunter equates many of life’s events with good and evil and Satan and demonic delusions. According to Spade, when Hunter gets in a paranoid state, he equates people with demons and thinks that they are out to get him.
Dr. J.L.L. Femando, a psychiatrist who conducted Hunter’s evaluation at the Larned State Security Hospital in the last part of 2005, testified that, in his professional opinion, Hunter was not suffering from a mental defect when the March 23, 2005, incident occurred. Dr. Fernando explained in his evaluation report that “[although becoming angry and being of impaired judgment could be part of a schizophrenic process, there is no indication in the description of the incident Mr. Hunter behaved in a psychotic or demented manner although he may have had his judgment processes compensated.” Dr. Fernando concluded that Hunter did not lack the required mental state as an element of the offense charged.
The jury found Hunter guilty of battery of a law enforcement officer. Hunter was sentenced to a prison term of 130 months, which was to run consecutive to the prison sentence he was currently serving. The trial court ordered Hunter to be committed to the Lamed State Security Hospital for psychiatric care, treatment, and maintenance under K.S.A. 22-3430.
I. Did the trial court err in instructing the jury on the verdict formP
First, Hunter argues that the trial court committed clear error when it instmcted the jury on the verdict form to refrain from considering his mental state during its deliberation on his guilt. Because Hunter did not object to the verdict form, this court applies a clearly erroneous standard. See K.S.A. 22-3414(3); State v. Cooperwood, 282 Kan. 572, 581, 147 P.3d 125 (2006). “ Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the juiy would have rendered a different verdict if the trial error had not occurred.’ [Citations omitted.]” State v. Carter, 284 Kan. 312, 324, 160 P.3d 457 (2007).
Under K.S.A. 22-3220, mental disease or defect can be asserted as a defense to show that the defendant lacked the mental state required for the crime charged:
“It is a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the mental state required as an element of the offense charged. Mental disease or defect is not otherwise a defense. The provisions of this section shall be in force and take effect on and after January 1, 1996.”
Thus, a defendant may raise a defense based on mental disease or defect “if the disease or defect was such that it could negate the mens rea element of the crime.” State v. Bolden, 28 Kan. App. 2d 879, 885, 24 P.3d 163, rev. denied 271 Kan. 1038 (2001). Here, Hunter’s entire defense was based on the mental disease or defect defense.
The jury in this case was instructed concerning evidence of mental disease or defect as it related to the issue of whether Hunter was able to form the necessaiy intent to commit the charged crime. Instruction No. 5 provided:
“Evidence has been presented that die defendant was afflicted by mental disease or defect at the time of the alleged crime. Such evidence is to be considered only in determining whether the defendant had the state of mind required to commit the crime. You are instructed the defendant is not criminally responsible for Iris acts if because of mental disease or defect the defendant lacked the intent to engage in the conduct.”
This instruction mirrors the language of PIK Grim. 3d 54.10.
In addition, Instruction No. 6 instructed the jury where Hunter would be committed if he was found not guilty based on his defense of mental disease or defect:
“If you find the defendant not guilty solely because the defendant at the time of the alleged crime, was suffering from mental disease or defect which rendered the defendant incapable of possessing the required criminal intent, then the defendant is committed to the State Security Hospital for safe-keeping and treatment until discharged according to law.”
Instruction No. 6 mirrors the language of PIK Crim. 3d 54.10-A.
Although Instruction Nos. 5 and 6 properly instructed the jury on Hunter’s defense of mental disease or defect, Hunter focuses on the verdict form that was given to the jury. The verdict form, provided as follows:
“We the jury find the defendant guilty ofbattery of a law enforcement officer.
Presiding Juror
‘We the jury find the defendant not guilty of battery of a law enforcement officer.
Presiding Juror
“If your verdict was not guilty, please answer the following special question: Do you find the defendant not guilty solely because the defendant, at the time of the alleged crime, was suffering from a mental disease or defect which rendered the defendant incapable of possessing the required criminal intent?
Yes_ No_
Presiding Juror”
This verdict form differs from that in the prior version of PIK Crim. 3d 68.06 (1996 Supp.), which recommended providing the following language to the juiy concerning a not guilty verdict:
“We, the jury, find the defendant not guilty solely because the defendant, at the time of the crime, was suffering from a mental disease or defect which rendered the defendant incapable of possessing the intent required as an element of the crime.
Presiding Juror”
PIK Crim. 3d 68.06 (1996 Supp.) followed the language of PIK Crim. 3d 54.10 (instruction No. 5 in this case) and made clear to the jury that the defendant is not guilty if it finds that the defendant was suffering from a mental disease or defect which rendered the defendant incapable of possessing the intent required for the charged crime.
Nevertheless, the 2007 supplement to PIK Crim. 3d 68.06 changed the recommended language in the verdict form to the exact same language that was provided to the jury on the verdict form in this case. Specifically, PIK Crim. 3d 68.06 (2007 Supp.) outlines the verdict form, when a defendant claims mental disease or defect, as follows:
“We, the jury, find the defendant guilty of__
Presiding Juror
“We, the jury, find the defendant not guilty of_
Presiding Juror
“If your verdict was not guilty, answer the following special question:
“Do you find the defendant was not guilty solely because the defendant, at the time of the alleged crime, was suffering from a mental disease or defect which rendered the defendant incapable of possessing the required criminal intent?
Yes_ No_
Presiding Juror’
In his appellate brief, Hunter fails to recognize the recently changed version of PIK Crim. 3d 68.06 (2007 Supp.). In accordance with PIK Crim. 3d 68.06 (2007 Supp.), the verdict form in this case focused the jury on Hunter s mental disease or defect defense if it found Hunter not guilty of the charged crime. Hunter maintains that the trial court’s erroneous ordering of the options on the verdict form deprived the jury of the opportunity to consider his mental disease or defect while it was determining whether he was guilty of the charged crime. Hunter maintains that the State further compounded die problem by its comments during closing argument.
Specifically, towards the end of its closing argument, the prosecutor told the jury that it did not need to reach the second question unless it found him not guilty of the charged crime:
“Ladies and Gendemen, the final thing I would like to point out to you, Ladies and Gendemen, is the verdict form. It is some what unique. You haven’t seen this yet, but you’re going to get it in a litde bit.
“Ladies and Gendemen, I want to point out to you, that you don’t even need to get to the second part of that question. You know, you’re asked the first question, did he do it or did he not do it. And only if you find that he did not do it, do you ever get to the second question. I would ask that you look at the form.”
Hunter argues that the prosecutor’s comments, along with the verdict form, essentially instructed the jury that it should not consider Hunter’s mental state unless and until it found him not guilty of the crime charged. The structure of the prosecutor’s closing argument and the verdict form used could be reconstructed into the following conditional syllogism:
If the jury finds the defendant not guilty of the crime charged (P), then it should consider whether the defendant was suffering from a mental disease or defect which rendered him incapable of possessing the required intent (Q).
If the jury finds the defendant guilty (not P),
Then, the jury does not have to consider whether the defendant was suffering from a mental disease or defect which rendered him incapable of possessing the required intent (not Q).
This conditional syllogism commits the classical fallacy known as denying the antecedent of a conditional statement. This fallacy is committed when a statement in the conditional form “if P, then Q” is taken to imply “if not P, then not Q.” This violates the rules of deduction. See Aldisert, Logic for Lawyers, pp. 160-63 (3d ed. 1997).
Although Hunter points out this fallacy, there are two problems with Hunter s argument — one based on precedent and one based on the record. State v. White, 284 Kan. 333, 346-47, 161 P.3d 208 (2007), controls the outcome of this case. In White, the juiy had been given a special question nearly identical to the one given in the instant case. The special question was on the second page of the verdict form. The first page of the verdict form instructed the jury that it could find the defendant guilty of murder in the first degree, guilty of murder in the second degree, or not guilty. The appellant in White raised a similar argument to that raised here— that the trial court reversed the necessary inquiiy and improperly instructed the juiy on the verdict form that it only needed to consider mental disease or defect if it found the defendant “not guilty.” Because the defendant in White did not object to the instructions or verdict form at trial, our Supreme Court applied a clearly erroneous standard of review. 284 Kan. at 346.
In addressing the appellant’s argument, our Supreme Court in White looked to K.S.A. 22-3221, which requires a special question to be asked of the jury if it returns a “not guilty” verdict. K.S.A. 22-3221 provides as follows:
“In any case in which the defense has offered substantial evidence of a mental disease or defect excluding the mental state required as an element of the offense charged, and the jury returns a verdict of not guilty,’ the jury shall also answer a special question in the following form: ‘Do you find the defendant not guilty solely because the defendant, at the time of the alleged crime, was suffering from a mental disease or defect which rendered the defendant incapable of possessing the required criminal intent?’ The provisions of this section shall be in force and take effect on and after January 1, 1996.”
Our Supreme Court pointed out that the complained-of verdict form was taken directly from K.S.A. 22-3221. Noting that the jury had been properly instructed on mental disease or defect, our Supreme Court further stated:
“The jury was instructed about mental disease and defect and how that could result in its determination of not guilty. The jury was also instructed to decide on guilt: if it found White not guilty, then it was instructed to designate whether it found him not guilty solely because of mental disease or defect, or not, i.e., for some other, unspecified reason such as the prosecution failed to prove guilt beyond a reasonable doubt.” 284 Kan. at 347.
Our Supreme Court held that the trial court did not err in taking its verdict form in part directly from K.S.A. 22-3221. 284 Kan. at 347.
Hunter maintains that this case is distinguishable from White due to the prosecutor’s comments in closing arguments and the fact that the special question to the jury was on the same page as the jury’s verdict. Nevertheless, the prosecutor was technically correct in telling the jury that it reached the second question on the verdict form only if it found Hunter not guilty of the charged crime. This is exactly what the special question, which was taken from K.S.A. 22-3221, instructed the jury to do: “If your verdict was not guilty, please answer the following special question . . . .”
Further, Hunter takes an isolated view of the prosecutor’s comments. It was clear from the closing arguments of both the prosecutor and defense counsel that the central issue for the jury’s determination was whether Hunter suffered from a mental disease or defect that rendered him incapable of possessing the intent to commit the charged crime. In closing arguments, the prosecutor specifically pointed the jury to the instruction regarding mental disease or defect and then proceeded to argue that it had proved that Hunter indeed had the requisite intent to commit the charged crime. In light of the fact that the jury had been specifically instructed on mental disease or defect in Instruction No. 5, there should have been no jury confusion by the prosecutor’s comments.
Hunter attempts to compare this case to State v. Graham, 275 Kan. 831, 69 P.3d 563 (2003), and State v. Cribbs, 29 Kan. App. 2d 919, 34 P.3d 76 (2001). Those cases, however, are distinguishable. Both of those cases involved instructions on lesser included offenses. The verdict forms in Graham and Cribbs instructed each jury that if it did not find the defendant guilty of attempted second-degree murder, it should then consider the lesser included offense of attempted voluntary manslaughter. Essentially, the juries in Graham and Cribbs were both told that it did not need to consider attempted voluntary manslaughter unless and until it agreed on whether the defendant was guilty of attempted second-degree murder. See Graham, 275 Kan. at 386-37; Cribbs, 29 Kan. App. 2d at 924. Different from both Graham and Cribbs, the juiy in the present case was correctly instructed on the defense of mental disease and defect and how to use it in determining Hunter s guilt.
Finally, the fact that the special question was present on the same page as the jury’s verdict does not change the result here. PIK Crim. 3d 58.06 (2007 Supp.) now contains the same format as that used here. Further, as in White, Hunter had no objection to the verdict form at trial. In fact, the trial judge specifically pointed out the special question to the jury on the verdict form and asked if defense counsel had any objection:
“THE COURT: Now, the other thing I want to address for the record, and I’m sure counsel is aware, and I know [the prosecutor] submitted a full set of instructions to the Court for review, is the verdict form.
“[Defense counsel:] I reviewed that with the [prosecutor], Your Honor, and we have no objection to that.
“THE COURT: I want to cover that with [the prosecutor] as well, because there is a P.I.K. instruction that — or actually a P.I.K. verdict form that is identified in P.I.K., but the problem is the statute which I believe to be controlling says that in the event a juiy returns a verdict of not guilty then a special question must be responded to by the juiy to the effect of do you find the Defendant not guilty solely because of mental defect or disease and the reason for that. Then that’s a determination as to whether or not an individual goes to State Security Hospital.
“[Defense counsel:] I want that in there. I want that instruction in there.
“THE COURT: Okay. I’m talking about the verdict form.
“[Defense counsel:] Oh.
“THE COURT: It is the last page.
“[Defense counsel:] Okay.
“THE COURT: Do you have any objection to the verdict form?
“[Defense counsel:] No.”
This colloquy between the trial judge and defense counsel demonstrates that the trial judge made a special effort to make defense counsel aware of the special question on the verdict form and that defense counsel had no objection. The special question to the jury on the verdict form came directly from K.S.A. 22-3221. Further, just like the facts of White, the record demonstrates that the juiy was accurately instructed about mental disease and defect and how that could result in its determination of not guilty (Instruction No. 5). Under White, there was no clear error committed by the trial court in taking its verdict form in part directly from K.S.A. 22-3221. See White, 284 Kan. at 346-47.
Moreover, as stated earlier, the trial court specifically asked defense counsel if he had “any objection to the verdict form?” Defense counsel said, “No.” Because Hunter told the trial court that he had no objection to the verdict form when the trial court brought the matter to his attention, Hunter actively contributed to what he now asserts was trial error. His action is akin to the doctrine of invited error. “A litigant may not invite and lead a trial court into error and then complain of the trial court’s action on appeal.” Hebert, 277 Kan. at 78. As a result, Hunter’s argument fails.
II. Did the trial court violate Hunters constitutional rights by not instructing the jury on the lesser included offense of battery?
Next, Hunter contends that the trial court violated his right to a jury trial under the Sixth Amendment to the United States Constitution and his right to due process under the Fifth and Fourteenth Amendments to the United States Constitution by failing to instruct the jury on the lesser included offense of battery.
Because Hunter never requested an instruction on battery, this court reviews for clear error. See K.S.A. 22-3414(3); State v. Engelhardt, 280 Kan. 113, 134, 119 P.3d 1148 (2005). When the defendant fails to request a lesser included offense instruction, the failure to give the instruction “is clearly erroneous only if the appellate court reaches a firm conviction that, had the instruction been given, there was a real possibility the jury would have returned a different verdict. [Citation omitted.]” State v. Simmons, 282 Kan. 728, 741, 148 P.3d 525 (2006).
With the exception of a felony-murder case, a criminal defendant has a right to an instruction on all lesser included offenses supported by the evidence at trial as long as (1) the evidence, when viewed in the light most favorable to the defendant’s theoiy, would justify a jury verdict in accord with the defendant’s theoiy and (2) the evidence at trial does not exclude a theoiy of guilt on any lesser offense. If, however, from the evidence the jury could not have reasonably convicted the accused of the lesser offense, then an instruction on a lesser included offense is not proper. Simmons, 282 Kan. at 741-42.
A lesser included offense is “a crime where all elements of the lesser crime are identical to some of the elements of the crime charged.” K.S.A. 21-3107(2)(b). K.S.A. 21-3413(a)(3) requires the State to prove a batteiy under K.S.A. 21-3412 in order for the defendant to be convicted of battery of a correctional officer. The additional requirements to prove battery of a correctional officer are that the State must show that the batteiy was committed against “[a] state correctional officer or employee by a person in custody of the secretary of corrections, which such officer or employee is engaged in the performance of such officer’s or employee’s duty.” K.S.A. 21-3413(a)(3)(A).
Hunter’s argument on this issue is similar to that presented in State v. Trujillo, 225 Kan. 320, 590 P.2d 1027 (1979). There, the trial court instructed the juiy on battery of a law enforcement officer under K.S.A. 21-3413 (Weeks). The appellant argued that the juiy should also have been instructed on the lesser included offense of battery under K.S.A. 21-3412 (Weeks). Nevertheless, our Supreme Court stated that there was no issue raised at the trial concerning the victim’s identification as a police officer. The victim had been in uniform and had identified himself to the appellant. Our Supreme Court recited the familiar rule that “[a] trial court is not required to instruct on a lesser offense of the crime charged if the evidence at the trial excludes a theory of guilt on the lesser offense. [Citations omitted.]” 225 Kan. at 322. As a result, our Supreme Court found no error in the trial court’s failure to instruct on the lesser included offense of battery. 225 Kan. at 322; see also State v. Whiters, No. 89,631, unpublished opinion filed November 7, 2003 (where evidence at trial excluded appellant of being found guilty of only batteiy, no error in failing to instruct on lesser included offense of battery).
In this case, there was no issue raised at trial concerning Witt’s status as a correctional officer engaged in the performance of his duties when he was hit by Hunter. The evidence showed that Witt was a correctional officer at Lamed. Hunter was incarcerated at Lamed when the incident occurred. Witt was on duty on March 23, 2005, and was engaged in the performance of his duties when he was hit by Hunter. Because the evidence at trial excluded a theory of guilt on the lesser included offense of battery, an instruction on battery would not have been proper in this case. As a result, Hunter s argument on this issue fails.
III. Did the trial court err in using Hunters criminal history to increase his sentenceP
Finally, Hunter argues that the trial court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), when it used his criminal histoiy that had not been put before a jury and proven beyond a reasonable doubt to increase his sentence. Hunter concedes that this issue is controlled by our Supreme Courtis decision in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Singleton, 33 Kan. App. 2d 478, 488, 104 P.3d 424 (2005). Because our Supreme Court has consistently followed its position in Ivory, we are unable to grant relief to Hunter on this issue. See State v. Fewell, 286 Kan. 370, 394-96, 184 P.3d 903 (2008).
Affirmed. | [
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The opinion of the court was delivered by
Horton, C. J.:
In the case of The State v. Brayman, it was held that the jurisdiction of a justice of the peace is limited in civil .actions to the county in which he resides, and for which he has been elected; and where an action is brought before him, and service obtained upon one defendant, he has no authority to issue a summons in such action to an officer of another county, there to be served upon another defendant; and that the provisions of the civil code authorizing the issuance of a summons to a county other than the one in which the action is brought, are not applicable to proceedings before a justice of the peace. (35 Kas. 714.) This disposes of the alleged error of the district court in reversing the decision of the justice of the peace.
After the defendants obtained a judgment of reversal, the court retained the case for trial and final judgment, as in cases of appeal. (Civil Code, § 566.) To this the defendants took no exception, and subsequently both parties appeared and announced themselves ready for trial. By agreement of the parties a jury was waived, and the case was submitted to the court for trial. It is now too late for the defendants to question the jurisdiction of the district court. That court is one of original general jurisdiction, and if parties come voluntarily into that court to litigate a matter of which it could take cognizance, and which is within the scope of its jurisdiction, and make no objection to the form of the proceedings, they will not be heard to say that the court had no jurisdiction, or that its judgment is not binding. (Reedy v. Gift, 2 Kas. 392; Jones v. School District, 8 id. 362; Haas v. Lees, 18 id. 449; Miller v. Bogart, 19 id. 117; Shuster v. Finan, 19 id. 114.)
On the part of the defendants, it is contended that the payment of the premium installments mentioned in the note was optional with the insured; and that as he made default, the insurance company cannot recover upon the note; that its' only remedy is the avoidance of the policy. ( Yost v. Insurance Co., 39 Mich. 531; Insurance Co. v. Stoy, 41 id. 385.) We do not think that we are called upon in this case, as it is now presented, to determine whether the condition of forfeiture for non-payment inserted in the note was a condition precedent to' a further continuance of the policy, or a condition-subsequent and merely voidable at the option of the company. The insurance policy for which the note was executed was not offered in evidence, and is not contained in the record. If this is a test case, which has been brought here to determine the rights of parties in a great number of claims awaiting the result of this one, we ought to have before us the written policy as well as the note given by the assured. These instruments are all parts of one and the same transaction; they must be resorted to and treated as but one instrument for the purpose of ascertaining the rights of the parties.
Again, there is nothing upon the face of the note, or in the record, showing, or tending to show, that the first year’s premium was paid in cash, or otherwise than by the note in controversy, or that the installments therein named are for advance insurance. As the insurance policy is dated April 7,1882, and the first installment of the note was not due until April 1, 1883, it would seem to us that this installment, when it became due, was for an earned premium. Then again, the note states that “in the event of non-settlement for time expired, as per terms on short rates, the whole amount of installments remaining unpaid on said policy, may be collected.” If there was no cash, or other actual payment made upon the policy for the year commencing April 7,1882, and ending in April, 1883, and the installment payable April 1,1883, was not an advance payment, then, ,as the risk began to run April 7, 1882, a part of the premium therefor was earned prior to April 1,1883. From April 7,1882, to April 1,1883, the policy was neither null, nor void, nor suspended. During all that time it protected the assured. The neglect or default of the assured did not occur until after April 1, 1883; therefore, under any circumstances, the insurance company would be entitled to collect for the earned premium, even if we concede to the fullest extent that'the policy was void during the subsequent period of default in payment. (May on Ins., § 341a.)
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
In the latter part of the year 1878, Samuel N. Simpson, "William C. Tenney, and M. Shepard Bolles — the latter representing himself and Henry Shepard and Richard F. Bolles — formed a copartnership to purchase and sell on speculation, a certain piece of real estate consisting of 30 and t673q-acres, situated near Wyandotte city, in Wyandotte county, Kansas, and belonging to Matthias Splitlog. Simpson at that time and prior thereto, by a written contract with Splitlog, had the exclusive right to purchase the property, but he did not have the money with which to do so; and for this reason he entered into the copartnership aforesaid. The price to be paid for the land was $200 per acre. Under this partnership arrangement, and in pursuance thereof, M. Shepard Bolles furnished the money with which to pay for the property, and also furnished some other money to pay, incidental expenses, amounting in the aggregate to $6,300. He took a promissory note from Tenney to himself for this amount, and also took two other notes from Tenney to himself for $1,000 each, for guaranteed profits on the property, and also took two other notes from Tenney to M. Bolles & Co. for $500 each, for the services of M. Bolles & Co. in procuring the foregoing money. The entire notes in the aggregate amounted to $9,300. By agreement of the partners the deed for the land was executed by Splitlog to M. Shepard Bolles, for the purpose, first, of transferring the title to the property from Splitlog to one of the partners in interest, to wit, M. Shepard Bolles; and second, to secure the payment of the aforesaid promissory notes. The deed was executed on December 3,1878. The profits of this speculation, or transaction, after paying the purchase-money and all the costs and expenses connected with or concerning the partnership, were to be divided as follows: Four-tenths to Simpson; three-tenths to Tenney; and three-tenths to M. Shepard Bolles, for himself and those whom he represented. All these matters are set forth in much greater detail in the special findings made by the referee and reported to the court below. Bolles, and the parties whom he represented, resided in Boston, Mass., while Tenney and Simpson resided in Kansas.
After the purchase of the foregoing land, a portion of the same was platted into lots, streets, alleys, etc., and a large number of the lots were sold under the special supervision of Simpson; and Bolles then executed quitclaim deeds therefor to Tenney, and Tenney executed warranty deeds to the purchasers. All this was in accordance with their previous partnership agreement. From the proceeds of these sales, all the foregoing notes to M. Shepard Bolles, and all the expenses connected with the partnership business, were paid; and Simp son and Tenney paid the two five-hundred-dollar notes to M. Bolles & Co., each paying one-half thereof. After this, and after June 15,1883, and not before, but before this action was commenced, Tenney, acting for himself and the Boston parties, refused to permit any further sales, or to permit Simpson to have any further connection with the property.
This action was commenced on January 17,1884, by Simpson against the other parties, to wit, William C. Tenney, M. Shepard Bolles, Henry Shepard, and Richard F. Bolles, to have Simpson’s interest in the property declared, and for partition of the property. Upon the findings of the referee, the court below rendered judgment in favor of Simpson, and that the property be partitioned, giving to Simpson four-tenths thereof; and to reverse this judgment the defendants, as plaintiffs in error, bring the case to this court for review. They claim that Simpson has no interest whatever in the property. They claim that by virtue of the deed from Splitlog to M. Shepard Bolles, the entire title to the property was transferred and is vested in M. Shepard Bolles alone; that no legal or valid express trust has ever been created in favor of Simpson, for the reason that no writing creating the same has ever been executed; and that no resulting trust has ever been created in favor of Simpson, for the reason that Simpson did not make any actual payment of the purchase-money for the property ■to Splitlog, nor agree to pay the same, nor incur any absolute obligation therefor, but that the same was wholly and entirely paid by the other parties. And they further claim that no trust of any kind has ever been created or has arisen by operation of law, in favor of Simpson — no constructive trust, no implied trust.
We think the plaintiffs in error (defendants below) misconceive the law of this case. It may be true that no valid express trust has ever been created in this case; and it is certainly true that no resulting trust nor any implied trust can be created except upon a sufficient consideration; but the consideration need not in any case pass directly from the eestui qui trust, or beneficiary, to the grantor of the land. (Rose v. Hay den, 35 Kas. 106; Kendall v. Mann, 93 Mass. [11 Allen] 15; Runnels v. Jackson, 2 Miss. [1 How.] 358; Soggins v. Heard, 31 Miss. 426; Honore v. Hutchings, 8 Bush, 687; Page v. Page, 8 N. H. 187; Kelly v. Johnson, 28 Mo. 249; Millard v. Hathaway, 27 Cal. 140, 141; Sandfoss v. Jones, 35 id. 481; Buck v. Pike, 11 Me. 9; Lounsbury v. Purdy, 18 N. Y. 515; and other cases hereafter ci'ted.) Besides, the transaction in the present case was a partnership transaction, and in such cases real property may usually be considered in nearly the same manner as personal property, and the real intention of the parties with reference thereto, their contracts, promises or mutual understandings will govern, without reference to whether they have been reduced to writing, or not. (Marsh v. Davis, 33 Kas. 326; Morrill v. Colehour, 82 Ill. 619; Knott v. Knott, 6 Ore. 142; Collins v. Decker, 70 Me. 23; York v. Clemens, 41 Iowa, 95; Clark’s Appeal, 72 Pa. St. 142.) In such cases the statute of frauds and kindred statutes have no application. In 2 Story Eq. Jur., § 1207, the following language is used:
“In cases, therefore, where real estate is purchased for partnership purposes and on partnership account, it is wholly immaterial, in the view of a court of equity, in whose name or names the purchase is made and the conveyance is taken, whether in the name of one partner or of all the partners, whether in the name of a stranger alone or of a stranger jointly with one partner. In all these cases, let the legal title be vested in whom it may, it is in equity deemed partnership property not subject to survivorship, and the partners are deemed the cestuis que trust thereof.”
In the case of Morrill v. Colehour, 82 Ill. 619, it is held as follows:
“Where land is purchased by several for the purpose of sale and the acquisition of profits only, and not for permanent use, it will be regarded in equity as personal property among the partners in the speculation; and one of the parties may release his interest in the same verbally, and the same will not be within the statute of frauds.”
Turning our attention for the present to pure resulting trusts, without reference to partnership transactions, we have the following. Mr. Pomeroy, in his work on Equity Jurisprudence, uses the following language:
“ Kesulting trusts, therefore, are those which arise where the legal estate in property is disposed of, conveyed, or transferred; but the intent appears, or is inferred, from the terms of the disposition, or from the accompanying facts and circumstances, that the beneficial interest is not to go or be enjoyed with the legal title. In such a case a trust is implied or results in favor of the person for whom the equitable interest is assumed to have been intended, and whom equity deems to be the real owner. This person is the one from whom the consideration actually comes, or who represents or is identified in right with the consideration; the resulting trust follows or goes with the real consideration.” (2 Pomeroy’s Eq. Jur., §1031.)
Also, in the following cases it has been held as follows:
“A resulting trust in land in favor of a third person may be established by parol evidence, although the deed recites that the consideration was paid by the grantee, and it was in fact paid by him, provided that it was distinctly agreed before the purchase that the sum paid should be considered as a loan from the grantee to such third person; but the proof upon this point must be full and clear.” (Kendall v. Mann, 93 Mass. 15.)
“G. advanced a sum of money to purchase land for the benefit of J., with an agreement that the titles should be taken in the name of G., and the land conveyed to J. upon the payment of the money within a certain time, which J. failed to perform: Held, The facts constitute a resulting trust in favor of J. Payment of the money and conveyance of the land decreed.” (Runnels v. Jackson, 2 Miss. 358.)
“Where P. bought land and took a deed in the name of L., and L. advanced the purchase-money and took the notes of P. for the same, and agreed to convey the land to P. on being repaid the money advanced, and interest — it was held that the money thus advanced by L. might be considered as a loan to P.,and the land as purchased with the money of P.,so as to raise a resulting trust.” (Page v.Page, 8 N. H. 187.)
“Hutchings and Honoré, in 1861, jointly purchased thirty acres of land near Chicago, 111. Hutchings advanced the entire purchase-price, took a conveyance to himself, and executed a writing in which, among other things, ‘it is agreed between said parties, that when said land is sold said Hutchings is to have first his six thousand dollars so advanced, and ten per cent, interest, and the profits over and above said sum are to be equally divided between said parties. . . . This arrangement is to continue eighteen months, when, if the property has not been sold, said Honoré is to pay one-half the sum so advanced, with the accrued interest, or said Hutchings is to be the sole owner of the same.’ The land was not sold within the eighteen months, and Honoré failed to pay any part of the sum so advanced. In 1869 Hutchings sold the land for one hundred thousand dollars, and refused to pay any part thereof to Honoré. Honoré sued Hutchings for one-half of the net profits, after deducting purchase-price, interest, etc. Held, That a trust resulted in favor of Honoré to the extent of one-half of the land jointly purchased. This interest he pledged to Hutchings to secure the repayment to him of one-half the purchase-price advanced, etc.; and Hutchings held the legal title to one-half of the land in trust for Honoré, and the latter is entitled to one-half of the net profits realized upon the resale of the same.” (Honore v. Hutchings, 8 Bush, 687.)
“An oral agreement under which the defendant advanced money for the plaintiff to pay certain installments under a contract for the purchase of land, the defendant being named in the contract as the purchaser, but really acting for the plaintiff in pursuance of the agreement, held, to be valid, and not within the statute of frauds.” (Walton v. Karnes, 67 Cal. 255; same case, 7 Pac. Rep. 676.)
See also the cases of Millard v. Hathaway, 27 Cal. 140, et seq.; Barroilhet v. Anspacher, 68 id. 116; same case, 8 Pac. Rep. 814; Ward v. Matthews, (Cal.) 14 Pac. Rep. 614; Soggins v. Heard, 31 Miss. 426: Boyd v. McLean, 1 Johns. Ch. 590 to 593; Jenkins v. Eldridge, 3 Story, U. S. C. C. 181, 284.
Mr. Pomeroy, in his work on Equity Jurisprudence, also uses the following language:
“Where two or more persons together advance the price, and the title is taken in the name of one of them, a trust will result in favor of the other with respect to an undivided share of the property, proportioned to his share of the price.” (2 Pomeroy’s Eq. Jur., §1038.)
• In this present case, the partnership consisted of Simpson, Tenney, and M. Shepard Bolles; and the property was really purchased by and for the partnership, and for the purpose of surveying and platting it into town lots, and making it an addition to the city of Wyandotte, and selling the lots for profit; and there was no intention or understanding on the part of any one of the partners that the property should be purchased for the permanent use of any one of them, or for permanent use at all. Bolles, it is true, furnished the purchase-money, but he really furnished it to and for the partnership, and as a loan to the partnership, and it was really paid to Splitlog by and for the partnership, and the deed was executed to Bolles because he was one of the partners, and as a security for the repayment of the purchase-money to him. The deed answers as an absolute conveyance for the purpose of transferring the property from Splitlog to the partnership; but so far as it was intended as a security for the money loaned, it was only a mortgage. (McDonald v. Kellogg, 30 Kas. 170, and cases there cited.) At this time Simpson was the only person who had any right to purchase the property, and he did not release this right or consent that the deed should be executed to any other person than himself until all the partnership arrangements were perfected and consummated. And these partnership arrangements and this release were certainly a sufficient consideration on the part of Simpson for all the rights or interests in the property which he has at any time claimed. His right to the exclusion of all others to purchase the property was of itself and alone a thing of value and a sufficient consideration for all that followed. (C. B. Rld. Co. v. Wilcox, 14 Kas. 259, 268.) But that was not the only consideration. There were the partnership agreements on the part of Simpson; the contemplated personal services on his part to be performed in the future; and the further fact that Simpson was to pay one of the five-hundred-dollar notes, which he did in fact pay.
On December 11,1878, M. Shepard Bolles admittedin a letter to Tenney that he held the property “ as trustee; ” that he held it “ to secure those who have furnished money; ” and that when “the purchase-money and all other liens against the property have been satisfied,” he would then hold it “ for the benefit of all concerned,” and the profits would then go as follows; Seven-tenths to Tenney and his “associate,” meaning Simpson, and the other three-tenths to himself and his Boston associates. Also, the written stipulation furnished by the Boston parties and signed by Tenney on November 23, 1878, before the deed from Splitlog to M. Shepard Bolles was executed, shows that “Mr. S.,” whom the oral evidence shows was Simpson, was to have four-tenths of the profits after paying the aforesaid purchase-money, costs, expenses, etc. And the evidence shows that Simpson was permitted to deal with the property and expend time, labor, and money with reference thereto for nearly five years before his said interest in the property was questioned. Among other things, he was actually permitted to pay $500, one-half of the commission to procure the purchase-money. Therefore did not Simpson have an interest in the purchase-money, and has not an implied trust arisen in his favor? Valid express trusts are such, and such only, as are created by the express terms of a written instrument. Implied trusts are such as arise by implication or operation of law. The interests which have arisen or been created in favor of Simpson .in the present case, come very nearly being a written express trust; but holding that they are not, then they are clearly an implied trust. Implied trusts include a vast number of trusts not included in Mr. Pomeroy’s definition of resulting trusts; for instance, such trusts as Mr. Pomeroy himself designates as constructive trusts. In the present case we think that the trust which has arisen in favor of Simpson is both a resulting trust and a constructive trust. It is true that by § 6 of the act relating to trusts and powers, such trusts as formerly resulted where one person paid the purchase-money and the property was conveyed to another, have been abolished except in certain cases, designated in §§ 7 and 8 of said act, among which are, “where it shall be made to appear that, by agreement, and without any fraudulent intent, the party to whom the conveyance was made, or in whom the title shall vest, was to hold the land, or some interest therein, in trust for the party paying the purchase-money, or some part thereof.” The trust in favor of the partnership and in favor of Simpson may be upheld under this clause just quoted. It is claimed, however, that it was not “made to appear” in the court below that the mode of purchase and conveyance in the present case was “without any fraudulent intent.” We think it was; or at least it was as far as Simpson is concerned. He had no intention of defrauding any person, and certainly not of defrauding the other parties. The evidence shows that the deed was executed to M. Shepard Bolles instead of to all the parties, or to either of the others, for the purpose that it might be a security to Bolles for the money advanced by him, and not with any fraudulent intent.
The plaintiffs in error (defendants below) have urged as a controlling matter the fact that Tenney gave his individual notes for the purchase-money. But when we come to consider the entire facts of the case, this should make no difference. It was not understood that Tenney should pay these notes individually, and he did not do so. On the contrary, it was understood that these notes should be paid out of the proceeds of the partnership property, and they were so paid. As to to the two $500 notes given as a commission to M. Bolles & Co. for procuring the purchase-money, Tenney paid half, and Simpson paid the other half.
It is further urged that Simpson was not to have any interest in the land, but only an interest in the proceeds of the sale of lots. This is very technical, but giving it all the force to which it may be entitled, and still it can make no difference under the further facts of the case; for before the commencement of this action, the sale of the lots was discontinued and the partnership dissolved at the instance of the other parties, and the partnership debts paid; and always, upon the dissolution of a partnership and the full payment of the partnership debts, the partners become tenants in common with regard to any and all real estate still belonging to the copartnership. (1 Washburn on Real Property, 423, sub. 4.) Viewing this case in any light we may, it is clear that M. Shepard Bolles holds four-tenths of the property in controversy In trust for Simpson. When the deed was first executed to him he held the property in trust for the partnership, Simpson’s interest therein after paying the debts being four-tenths. "When the partnership was terminated he then held the property in trust for the individual partners in proportion to their respective interests in the partnership. He now holds four-tenths for Simpson.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The only question involved in this case is as follows: Where a judgment is rendered by a justice of the peace in favor of the plaintiff and against the defendant, and the defendant appeals to the district court, and afterward dismisses his appeal, are the sureties- on the appeal bond liable for the amount of the judgment rendered in the justice’s court, or only for the amount of the judgment for costs rendered in the district court ? This question is purely one of statutory construction. The statutes applicable to the case, to wit, §§121, 124, and 129, of the justices code, provide among other things as follows:
“Sec. 121. . . . [The condition of the appeal bond or undertaking must be as follows:] First, That the appellant will prosecute his appeal to effect, and without unnecessary delay. Second, That if judgment be rendered against him on the appeal, he will satisfy such judgment and costs.”
“Sec. 124. . . . If the appeal be dismissed, the cause shall be remanded to the justice of the peace, to be thereafter proceeded in as if no appeal had been taken.”
“Sec. 129. When any appeal shall be dismissed, or when judgment shall be entered in the district court against the appellant, the surety in the undertaking shall be liable to the appellee for the whole amount of the debt, costs, and damages recovered against the appellant.”
We think the foregoing question must be answered that the sureties are liable for the judgment rendered in the justice’s court. The statutes provide that the condition of the appeal bond must be “that the appellant will prosecute his appeal to effect, and without unnecessary delay; ” and also that “ when any appeal shall be dismissed, . . . the surety in the undertaking shall be liable to the appellee for the whole amount of the debt,- costs and damages recovered against the appellant.” Now when the appeal is dismissed from the district court, no judgment for any “debt” or “damages” is ever rendered in that court, but only a judgment that the appeal be dismissed, and in favor of the appellee for the costs which have accrued in the district court; hence we think that the debt and damages for which the sureties on the appeal bond are to be held liable in such cases, are the debt and damages recovered by the appellee against the appellant in the justice’s court.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The questions in this case arise on the defendant’s (Sweet’s) demurrer to the petition, which the court below sustained. The plaintiff, assigning this ruling as error, brings the case here.
The material statements in the petition are as follows:
First — The Plaintiff’s Demands: (1) That he is an unsatisfied bona fide creditor of the Topeka Rolling-Mill Company, who sues for himself and all other bona fide unsatisfied creditors of said company; (2) that on the 12th day of May, 1874, the said company made its promissory note to the plaintiff for the sum of $5,000, with interest at 12 per cent, per annum from date (said note maturing in eight months), in consideration of so much money advanced by him for the company; that on the 24th day of September following, the company executed a mortgage to secure this note on the real estate and mills of said company; (3) that on the 11th day of December, 1874, he recovered against said company judgments before a justice of the peace, aggregating $852.85, and $31.50 costs; (4) that on the 30th day of December, 1874, judgments were recovered against the company in his favor, amounting to $171.10; and that proper abstracts of these judgments were duly filed in the office of the clerk of the district court of Shawnee county; (5) that on the 22d day of August, 1874, for the accommodation of said company and its surety, the defendant, Timothy B. Sweet, he indorsed the promissory note of said company of that date for $1,000, due thirty days after date, with interest at 12 per cent, per annum; that said note was discounted at the bank of Black & Sons, in the city of Topeka, and said company having failed to pay the same when it became due and payable, he was compelled to pay it, and did pay it; that, to indemnify him as indorser on said note, the company delivered to him one of its first-mortgage bonds for $1,000, dated Jauuary 1, 1874, payable five years after date, with semi-annual interest according to coupons attached, which said bond was taken by plaintiff in good faith, and without knowledge or notice of any of the transactions connected with said bonds, as hereinafter set forth; (6) that the plaintiff has at all times remained and is now the owner and holder of all said indebtedness, and has never been paid any part thereof, nor of the interest thereon.
Second — The Rolling-Mill Company: (1) That said Topeka Rolling-Mill Company is a corporation, and was duly incorporated under the laws of the state of Kansas, on the 31st day of December, 1873, for the purpose of rolling and manufacturing railroad and merchants’ iron, and carrying on the general business of manufacturing iron castings, etc., at Topeka, Kansas; (2) that at its original organization, Timothy B. Sweet, Reuben D. Coldren and E. L. Derby became, and have ever since continued to be, the board of directors of said company; that Timothy B. Sweet became, and has continued to be, vice president and treasurer thereof, Reuben D. Coldren its president, and E. L. Derby its secretary — no election for directors or officers ever having been called or held since its original organization, and the said Timothy B. Sweet has during all this time been its chief and controlling officer; (3) that, immediately upon the organization of said company, it purchased from the Topeka Iron and Steel Company a tract of real estate in the city of Topeka, upon which rolling-mills had been partially erected, and it at once com pleted said mills, and on the 15th day of April, 1874, they were fully provided with machinery, tools, implements, and fixtures, and were ready for operation; (4) that said mills were operated by said company until the 31st day of December, 1874, at which time they were placed in charge and under the control of a receiver of the Shawnee county district court, as hereinafter stated, and from the operation of said mills large profits were derived, which were retained and converted to his own use aud benefit by the said Timothy B. Sweet, and applied by him to the payment of certain pretended indebtedness of said company to him.
Third — The First-Mortgage Bonds: (1) That immediately after the organization of the Topeka Boiling-Mill Company, it issued and sold to the Shawnee County Bank its first-mGrtgage bonds to the amount of $60,000 in bonds of $1,000 each, dated the 1st day of January, 1874, payable five years after date, with semi-annual interest coupons attached, secured by a first mortgage on the real estate and mills of the company; (2) that said bank was to pay $58,000 therefor, in payments as follows: $10,000 cash at date; $10,000 February 1st, 1874; $10,000 March 1st; and $8,000 April 1st, 1874, in cash; the remaining $20,000 thereof to be paid in paid-up stock of the Topeka Iron and Steel Company, from which the Topeka Boiling-Mill Company had purchased its real estate and a partially completed mill; (3) that said bonds were to be placed in escrow in the hands of George F. Parmelee, who was the cashier of the Shawnee County Bank, and were to be delivered by him to said bank as fast as they were paid for; (4) that the bonds were issued and delivered in escrow, and said mortgage was made and recorded; that the bank paid the first $10,000 payment and about $600 additional, and then refused to further perform its contract of purchase, and thereupon eleven of said bonds were delivered to said bank in full satisfaction of the $10,000 it had paid; (5) that twenty-nine of said bonds were surrendered to Sweet, Coldren and Derby for said company; (6) that Arthur C. Huidekoper was the president of the Shawnee County Bank during this time, and he wrongfully obtained possession of the remaining twenty of said bonds, and with them and the eleven bonds delivered to the bank, left the state of Kansas, and has never returned; (7) that all these things occurred with the knowledge of Timothy B. Sweet, who made no effort to prevent them; (8) that of the twenty-nine bonds returned to said company, one was delivered to the plaintiff as heretofore stated; (9) that by an agreement made by and between Sweet, Coldren and Derby with intent to cheat, wrong and defraud the bona fide creditors of said company, thirteen of said bonds were delivered to Coldren to be held by him as security for certain obligations and indebtedness of said company to him; (10) that the remaining fifteen of said bonds were taken possession of by E. L. Derby, who fled from the state with them, and has never returned; (11) that all these things were done with the knowledge of Sweet, who made no effort to prevent them.
Fourth — The Second Mortgage: (1) That on the 25th day of September, 1874, the Topeka Boiling-Mill Company executed to Timothy B. Sweet a second mortgage on all of its real estate and mills to secure payment to Sweet of a large sum of money claimed to be due Sweet from the company, and to secure him as surety and indorser for the company, and that this mortgage was recorded the same day it was executed; (2) that on the 19th day of October, 1874, Sweet and Coldren entered into a written agreement, by the terms of which the thirteen mortgage bonds were to be turned over to Sweet, and Sweet assigned to Coldren an interest in said mortgage, and the proceeds of the mills were first to be applied to the reduction of the indebtedness of the company to Sweet, until the amount should be reduced to a sum equal to that of the indebtedness of the company to Coldren, and then Coldren and Sweet should hold the mortgage equally.
Fifth — The Huidekoper Suit: (1) That on the 21st day of December, 1874, Arthur C. Huidekoper, claiming to be rightful owner and holder of said thirty-one bonds, commenced his action in the Shawnee county district court against the company, Sweet and others, alleging the insolvency of the company; that Sweet, Coldreu, and Derby had fraudulently obtained possession of said twenty-nine bonds, praying a judgment for the amount of his bonds with interest, and asking the appointment of a receiver, and an injunction against Sweet, Coldreu, and Derby, to prevent them from disposing of the twenty-nine bonds, or withdrawing them from the jurisdiction of the court, and for a foreclosure of a first mortgage given to secure said first-mortgage bonds; (2) that Sweet, well knowing that but eleven of said bonds had ever been rightfully issued, and there being then in his hands rightfully belonging to said company, and derived from the profits of its business, sufficient funds to pay off all then due on said bonds, and well knowing that the coupons on the said eleven bonds were overdue, because he had misappropriated the funds of said company, which should háve been applied to their payment, colluded with said Coldren and the said Huidekoper for the purpose of procuring a fraudulent judicial sale and disposition of said real estate aud mills; (3) that on the 31st day of December, 1874, without any showing therefor required of said Huidekoper, and said showing being impossible if required, Sweet consented in open court, on behalf of said company, to the appointment of a receiver for said real estate and mills, as prayed for by said Huidekoper, and said receiver was thereupon appointed by the court, aud on that day took possession of said real estate and mills, and all the assets of said company; (4) that Sweet answered to said action as a defendant therein, without controverting the right of Huidekoper to recover in any manner whatever, but set up a large indebtedness of said company to him, and liability incurred for said company, aggregating the sum of $27,433.77, all of which was covered and secured by said mortgage executed to him on the 23d day of September, 1874, which was also set up in said answer; and said Sweet prayed judgment for said sum, and foreclosure of said mortgage, and a sale of the real estate and mills to satisfy his judgment; (5) that at the same time the said Sweet caused an answer to be filed in said action by A. H. Hentig, A. W. Strong, and the Citizens’ Bank, each setting up a portion of the first thirteen mortgage bonds, so as aforesaid wrongfully taken by said Coldren, and obtained from him by said Sweet, to wit, bonds Nos. 32, 33,34, 35, and 36, were set up in the pretended answer of the said A. H. Hentig as owner and holder; that bonds Nos. 37, 38, 39, 40, 41, and 42, were set up in the pretended answer of the Citizens’ Bank; that bonds Nos. 43 and 44 were set up in the pretended answer of A. W. Strong — the said bonds and coupons being then and there all the time in the possession and under the control of the said Sweet, under his arrangement with said Coldren, and neither Hentig, Strong, nor the Citizens’ Bank having ever had any interest in the same; but said answers were prepared and filed without the knowledge, consent, or authority of either said Strong, Hentig, or the Citizens’ Bank, but by the sole procurement and direction of said Sweet, for the purpose of having it appear to the court, and the adverse parties in said action, that said bonds had been negotiated and were held by innocent holders, to the end that he might more easily obtain judgment thereon against said company, and share in the proceeds of the sale of the said real estate and mills to a greater extent; (6) that all but a small portion of the pretended indebtedness set up by said Sweet in his answers as due him from said company, was wholly fictitious and without consideration, and all the pretended promissory notes alleged in said answer to have been given by said company, were made and delivered without authority therefor, were not the obligations of said company, and most of them did not purport to be the obligations of said company ; (7) that all of said pretended indebtedness was made and incurred during the time the said Sweet, Coldren and Derby were operating said mills for their own exclusive use and profit, and while they were in exclusive receipt of all revenues and income of said company, and were appropriating the same to their own exclusive use and benefit as hereinbefore alleged; and any money actually advanced by said Sweet procured on said indorsements, was so advanced and procured to pay the current running expenses of said mills while so operated, in- eluding large salaries to the said Sweet, Coldren, and Derby, and for the private use of Sweet, Coldren and Derby while operating said mills for their own benefit, and none of said money was received by or went to the benefit of said company, and the profits secured by Sweet exceeded all of said pretended indebtedness by many thousands of dollars; (8) that at the time said answer was filed by said Sweet, the said company did not owe him a single dollar, but that he was indebted to said company in a large sum for the receipt and use of the income and revenue of said mills, all of which the said Sweet well knew; (9) that, before the filing of said answers, the Birmingham iron foundry, a defendant in said action, had filed its answer setting forth the frauds of Huidekoper, Sweet, Coldren and Derby in obtaining among them forty-nine of said first-mortgage bonds, as heretofore stated, praying the cancellation of said illegal bonds, and setting up on its own account a pretended mechanics’ lien on said real estate and mills, to the amount of $32,317.47 with interest, and $2,000 attorney-fees for foreclosing said lien, which said lien so set up was constituted solely by two certain writings, (attached and marked as exhibits C and D;) (10) that said pretended lien was wholly invalid upon its face, as the said Sweet well knew, and the said Birmingham iron foundry had no claim whatever in law or equity against said company or its property; (11) that said Sweet caused an answer to be filed by said rolling-mill company, which was filed on the same day as the answers of Sweet, Hentig, Strong and the Citizens’ Bank, and they were all prepared by the same attorney, and all by the directions and retainers of said Sweet, and from data and information supplied by him for the purpose, and he well knew the contents of said answer, as well as the answers of the said Birmingham iron foundry; and, regardless of his duty in the premises to the bona fide creditors of the company, he caused the answer of the rolling-mill company to omit all notice of said Coldren bonds, said indebtedness set up by the said Sweet, and the pretended demand and lien of the said Birmingham iron foundry, and utterly and purposely neglected to make any defense whatever for or by said rolling-mill company against said claims or either of them, although he took sole management and charge, as vice president, of the litigation for said company — the president of said company having left the state of Kansas, and being then in the state of California; (12) that the claim of the Birmingham iron foundry was solely on the mechanics’ lien as aforesaid; the indebtedness by said' foundry alleged, if any there was, being the personal indebtedness of Derby & Coldren, a partnership consisting of Reuben D. Coldren and E. L. Derby, and not the indebtedness of said company; and Coldren & Derby had long before been paid by said company for the identical items set up by said foundry, and the whole of said demand; and the said Coldren & Derby, and the said Reuben D. Coldren and E. L. Derby, were each of them indebted then to the said rolling-mill company for large amounts, in excess of said demand as contractors, and all other demands held or claimed by them or either of them against said company; all of which the said Timothy B. Sweet, when said answer was filed by said iron foundry, well knew, and had long known, and knew that equitably and justly said company should not pay any portion of said alleged indebtedness.
Sixth — A Secret Agreement: (1) That while said action was pending, to wit, in the month of July, 1875, the said Huidekoper and said Sweet met and mutually agreed not to controvert each other’s claims set up in said action, but to act together for their mutual benefit secretly, while pretending to controvert each other’s claims, and keep up the semblance in said action of adversary proceedings between them, and mutually labor to defeat all other claims set up or to be set up in said action; (2) that thereupon the said Sweet bought up divers judgments against said company at sums greatly less than the amounts due thereon, and in his answer set them up at their full value against the company, instead of giving said company the benefit of the discounts thereon obtained by him; he, the said Sweet, having then in his hands, as treasurer as aforesaid, funds enough of said company to have fully paid off each and every of said judgments.
Seventh — A Second Secret Agreement: (1) That on the 30th day of August, 1876, the said Huidekoper, Royal M. Bassett, for the Birmingham iron foundry, and said Sweet, entered into an agreement in writing, by which they agreed with each other not to contest each other’s claims, but to have judgment obtained upon them as soon as possible, and that each one of them should share equally in whatever decree might be rendered in favor of either of them in said action; and, if they should succeed in buying in said mills and real estate at the sale under such decree, each therein should own in his own right one-third interest therein, (a copy of the agreement is attached and made a part of the petition;) (2) that, in pursuance of said agreement, each of said parties instructed his attorneys to act secretly in concert with the attorneys of each of the other parties, while remaining apparently adverse, so that such agreement might not be known to, or suspected by, the plaintiff, or any other of the bona fide creditors who were defendants in said action; and in pursuance thereof, said action was thereafter, on the 21st day of September, 1876, brought to trial, and was tried by the attorneys of said parties as if the said Sweet, Huidekoper, and the Birmingham iron foundry were hostile to each other, by. which means said plaintiff was deceived, as were also all the other bona fide creditors who were defendants in said action, and believed that an honest trial and contest was being carried on by the parties apparently the most interested therein; (3) that said agreement was by said Sweet and the other parties thereto fully understood to include the agreement on the part of Sweet that no defense should be made by or for the said rolling-mill company against the said claims of Sweet, Huidekoper, or the Birmingham iron foundry, and that no obstacle should by or for said company be thrown in the way of the consummation of said agreement.
Eigkhth — The Plaintiff in Error a Party Defendant: (1) That the plaintiff was made a party defendant to said claims and filed his answer therein, setting up his claims hereinbefore set forth, but said plaintiff knew nothing whatever, nor had he any notice or suspicion at that time, nor until long afterward, of the existence of any of the doings of fraudulent acts and schemes hereinbefore alleged on the part of or by the said Sweet, or by him and Coldren and Derby, or either of them, or by said Sweet, Huidekoper, and the Birmingham iron foundry; nor had he any means at that time, or until recently, of ascertaining anything concerning said doings, schemes, acts and agreements, but filed his answer in said action in the utmost good faith on his part, supposing and believing said action to be an honest adversary proceeding on the part of the said Huidekoper, the Birmingham iron foundry, said Sweet, and the rolling-mill company, and supposing and believing that a due and proper defense to all claims set up would be made by and on behalf of said rolling-mill company; (2) but in fact said action was not an adversary action, so far as said Sweet, Huidekoper and the Birmingham iron foundry were concerned, but was simply carried on by them as a scheme whereby, under the forms of legal proceedings, they might, by obtaining a decree for a large aggregate debt which should be made to appear prior in time to all other claims against said i’olling-mill company, be able to buy in said mills and real estate, without other payment than of their said decree in whole or in part, and shut off and bar the claims of all the bona fide creditors of said rolling-mill company, and thus cheat and defraud the bona fide creditors out of their demands ; (3) that a large number of bona fide creditors answered in said action, most of whom set up mechanics' liens on said premises and mills; none of the bona fide creditors being aware of said attempted and contemplated frauds upon their rights, through the abuse of the process of this court.
Ninth — The Decree in the Huidekoper Suit: (1) That said trial resulted in a decree by the court, which decreed that the Birmingham iron foundry recover $37,596, and that its de maud was the first lien on the premises; (2) that the said Huidekoper,recover on his thirty-one bonds of said company, and that his demand, together with the said Coldren bonds, so far as aforesaid set up by said Hentig, the Citizens’ Bank, and Strong, and the said bond held by the plaintiff, constitute the second lien on said premises and mills; (3) That the said Sweet recover $36,599.40 on the claims and mortgage set up by him as aforesaid, and that his demand was the third lien on said premises and mills; (4) that all the other claims set up by said plaintiff, and the other bona fide creditors of said company in said action, were declared to be subordinate to these in various.degrees; (5) that under that decree the sum of $37,596, to said Birmingham iron foundry, and the sum of $72,313.80 in said first-mortgage bonds, and the sum of $36,599.40 on said Sweet’s demand, were to be first paid, before any of the bona fide creditors should share in the proceeds of any sale that might be made, as will more fully appear from said decree on the record of this court; (6) that the said decree ordered the sale of said premises and mills as an entirety, upon the application of said colluding parties.
Tenth — The Sale of the Rolling-Mills: (1) That said premises and mills were appraised at the sum of $90,000, and were sold by the sheriff of Shawnee county, under said decree so procured, for the sum of $60,000, to said Sweet, Bassett, and Huidekoper, and said sale was confirmed, and said premises deeded to them by said sheriff without other payment thereof than mere credit on the amount of said decree.
Eleventh — Money in the Hands of the Receiver: (1) That at the termination of said proceedings a large amount of money, to wit, the sum of $10,000 or more, was in the hands of said receiver’, to be paid over by him as the court should direct, and the said Sweet, Huidekoper, and Bassett, for the Birmingham iron foundry, under the said secret agreement, by consent obtained an order of the court for said fund to be paid over to said Birmingham iron foundry, to reimburse it for pretended costs and expenses paid out by it, and said fund was paid over by said receiver, and equally divided betwee said Sjveet, Huidekoper, and Bassett, in pursuance of said secret agreement.
Twelfth — Assets of the Mill Company: (1) That said premises and mills were the sole and entire assets and property of said Rolling-Mill Company, and said company has not since had any property or assets whatever; (2) that said premises and mills were of the actual value of $200,000, and the good-will of the business of said company was well worth $25,000; (3) that the said mills and premises were afterward sold and conveyed by said parties to the Union Pacific Railroad Company, which purchased in good faith, as the plaintiff is informed and believes.
Thirteenth — Discovery by Plaintiff in Error: (1) that none of said doings or fraudulent acts or schemes or agreements, hereinbefore set forth or alleged, were discovered by said plaintiff until within less than two years next before the filing of this petition; (2) that neither the plaintiff, nor any of the bona fide creditors who were parties to said action, received any sum whatever, but their several demands remain still unpaid, both principal and interest.
Fourteenth — Receipts of Sweet: (1) That Sweet in fact received one-third of the amount due the Birmingham iron foundry, one-third found due said Huidekoper, the whole of the amount found due A. H. Hentig, A. W. Strong, and the Citizens’ Bank, on said Coldren’s bonds, and one-third of the amount received by the Birmingham iron foundry from said receiver, which amounts, even had said amount due him been just and valid, and said proceedings bona fide, as they purported to be, should have been credited on the amount found due the said Sweet, and the benefit thus given to the said rolling-mill company and its creditors; but the said Sweet claims and pretends that the whole amount so found due him is still due, and has issued executions thereon from time to time; (2) that in a certain action now pending in this court by the said plaintiff against said Sweet, to enforce payment upon plaintiff’s demands of the individual liability of said Sweet as a stockholder in said rolling-mill company, being action No. 4952 in this court, said Sweet has pleaded the said amount found due him by said decree, without credit of said sum received by him as a defense, set-off aud counter-claim against said plaintiff's just demands; (3) that said rolling-mill company is, and ever since said frauds were perpetrated, and since the organization of said company, has been under the control of said Sweet and said Reuben I). Coldren, and no effort has ever been made by said company, for that reason, to discover said bonds, or compel said Sweet, Derby and Coldren to restore to said company the sum of which it had by them so as aforesaid defrauded.
Fifteenth — Judgment for Plaintiff in Error: (1) That there was adjudged to be due to said plaintiff on his six several judgments the sum of $1,184.80, and on his note the sum $6,400, and as matured interest on the said bond held by him, the sum of $256.80; (2) that an execution on plaintiff's judgment was duly issued on the 19th day of May, 1881, and duly returned by the sheriff of Shawnee county, wholly unsatisfied for want of any property, real or personal, of said rolling-mill company whereon to levy; all of which fully appears by the records of said court, therein still remaining; (3) that the whole of said plaintiff's demands, with interest, remains unpaid and unsatisfied.
Sixteenth — Sweet's Receipts: (1) That, after said sale, Sweet, under execution, caused all the machinery and fixtures to be sold; and a portion thereof was sold to third parties for the sum of about $1,000, which the said Sweet received and still retains, and the remainder thereof was bought in by said Sweet, aud has since been resold by him at a large profit; (2) that there is now in the hands of said Sweet, as treasurer of said company aud as trustee for the creditors of said company, including the plaintiff, derived from the income and proceeds of said mills, and for which he ought to account with said company and its creditors, including the plaintiff, a large sum of money, to wit, the sum of over $100,000, which he unjustly and fraudulently refuses to apply to the payment of said creditors.
Seventeenth — The Prayer for Relief: The plaintiff prays that the said Timothy B. Sweet may be required to account: (1) For the actual value of said mills and real estate, and all other property and assets of said company; (2) for all sums received by him for the operation of said mills, or in any wise belonging to or derived from said company; (3) for all amounts that came into the hands of the receiver while in possession of said mills; and that he be required to make good and restore, by money compensation, all things as they would have been had he procured the cancellation of said forty-nine first-mortgage bonds, the defeat of the pretended lien of the Birmingham iron foundry, and refrain from setting up his said answer; and that an account may be taken of the assets of said company, thus derived and restored, and of all of the bona fide debts and demands due from said company, and that all such debts may be decreed to be paid of equal right out of said assets; (4) that said Timothy B. Sweet may be ordered to bring and pay iuto court in the meantime the funds of said company, which have not been paid out upon bona fide demands due from said company, without regard to any demand due him, or by him as surety or indorser for said company, the sum received by him of the amount paid over by said receiver to said iron foundry, and the sum received by him on the re-sale of said mills and real estate, or anything pertaining thereto, and for such other aud further relief as may be meet and in accordance with law and equity.
These statements, extracted from the body of a long petition, present in chronological order all the material facts alleged, and also the prayer for the relief which the plaintiff in error thinks he is entitled to. The record also contains many exhibits, and among them exhibit “A,” a contract between the Shawnee County Bank and the Topeka Rolling-Mill Company, for the purchase and sale of the first mortgage bonds of the company; exhibit “B,” a contract between Coldren and Sweet as to money advanced, and liabilities incurred by them, on behalf of the rolling-mill company, and as to the interest of each in securities given them by the company in the shape of a second mortgage; exhibits "C” and “D,” copies of a mechanics’ lien filed by the Birmingham iron foundry against the Topeka Rolling-Mill Company for the material furnished in its construction; exhibit “E” is a copy of the agreement made on the 30th day of August, 1876, by the Birmingham iron foundry, Arthur C. Huidekoper, of Mead-ville, Penn., and Timothy B. Sweet, about their respective claims, then being litigated, against the Topeka Rolling-Mill Company, in which they agreed not to resist each other’s claims, to press the action of Huidekoper against the company to a speedy trial, and to each have one-third interest in the proceeds of the result of that litigation. In the view (we shall hereafter state it) which we take of this petition, all of these exhibits are not important, and we shall not incumber the opinion with copies of them.
The defendant in error, Timothy B. Sweet, assigned the following causes for demurrer: (1) The plaintiff has no legal capacity to sue; (2) there is a defect of parties plaintiff; (3) there is a defect of parties defendant; (4) several causes of action are improperly joined; (5) the petition does not state facts sufficient to constitute a cause of action.
On the argument of the cause in this court, the most of the assigned causes have been abandoned, or at least they are not referred to. in the brief of counsel for the defendant in error, but their contention is: First, That the action should not be maintained because the plaintiff in error has been guilty of such negligence and laches as to deprive him of the interposition of the court in this behalf; in other word's, his action is barred by the statutes of limitation; second, that all matters and things asserted in the petition against Sweet have been adjudicated against the plaintiff in error, as appears by the petition in a suit to which he Was a party.
The contention of the defendant in error amounts to the assertion that the petition shows on its face that the supposed cause of action is not only barred, but it also recites a former adjudication against the claim of the plaintiff in error, and therefore that the petition does not state a cause of action against Sweet. The inquiry that we shall make, then, is: Does the petition state any cause of action against the defendant in error, Sweet ? It may be that, under the elastic provisions of the code of civil procedure of this state, and the generic form of action in all cases prescribed by it, any number of preexisting forms of action may be blended in the civil action of its creation; but in an attempted classification of this action, made either from the general tenor or the specific allegations of the petition, uncertainty results as to whether it was intended to be in the nature of a judgment creditor’s bill, or is one of that class of cases in which a court of equity is asked to set aside a judgment on the ground that it was obtained by fraud. The petition contains elements of both, so blended and interwoven that, in the consideration of the questions arising under it, constant recurrence must be had to the rules governing each, in order to determine them. This form of pleading will not be permitted, and in this case, the pleading being attacked by demurrer, the rule is that its language is to be construed against the pleader; and the operation of this rule leads to the conclusion that we shall treat this action as one in the nature of a creditor’s bill, seeking to charge Sweet, as a trustee for the creditors of the rolling-mill company, with the proceeds of the sale of the property under the decree of the district court, rendered in the action brought by Huidekoper. We do this because we believe the allegations of the petition amply justify such a conclusion, and for the additional reason that, if any cause of action is stated in this petition, under all the facts recited therein, this is probably the only one that is now available to the plaintiff in error. If it is possible to do so, we shall now endeavor to extract from the body of this petition the exact specific charges made against Sweet, upon which the plaintiff in error, as a creditor of the rolling-mill company, relies as statements of causes of action against him.
The petition charges very many transactions of Sweet, as the agent of the company, with its business affairs, as fraudu lent, and among them are: (1) The disposition of a part of the first-mortgage bonds of the company; (2) the procurement of a second mortgage on all the property of the company to secure a pretended indebtedness to him; (3) the retention and use of the daily receipts of the corporation, being a sum vastly in excess of all bona fide indebtedness by the company to him; (4) the assignment of Sweet to Coldren of an interest in the second mortgage, and the delivery by Coldren, the president of the company, to Sweet of thirteen of the first-mortgage bonds; (5) the procurement by Sweet from the other officers of the company of an agreement whereby the total receipts of the company were to be turned over and retained by him, and to his exclusive benefit, under the pretense that this was done to reimburse him for money advanced for the use of the company; (6) that Sweet, being the controlling officer of the corporation, and the management of all the litigation of the company being intrusted to him, fraudulently conspired with Huidekoper to place the property of the corporation in the hands of a receiver, the better to carry out his plans to wieck it; (7) that the action brought by Huidekoper against the company, Sweet, and others, was, so far as Huidekoper, the Birmingham, iron foundry and Sweet were concerned, a collusive suit, the main object of which was to sell and get control of all the property of the company, and to prevent all other creditors from securing payment of their just demands; (8) that he caused divers persons to file answers in that action setting up claims and demands against the Topeka Boiling-Mill Company in their own names, when in truth and in fact these demands and claims were the property of Sweet, bought by the funds, of the company, and used by Sweet for the purpose; (9) that many of the claims and demands set up by Sweet in his answer in that action against the company were false and fictitious, and made with the intent to so largely increase the amount of the first liens on the property of the company that the rest of the creditors of the company would not be able to bid successfully at the sale thereof; (10) that the claims of the Birmingham iron foundry had in fact been paid, but were used by Huidekoper and Sweet for the purpose of largely increasing the amount of the first lien, and to enable them to control more successfully the sale of the property; (11) that the agreement made by Huidekoper, the Birmingham iron foundry and Sweet, on the 30th day of August, 1876, to press the trial of the Huidekoper suit, and to share in its results, was made to more effectually carry out the understanding between the parties at the time of the commencement of that action; (12) that by reason of this agreement, and protected by it, Sweet was enabled to buy up many claims against the mill company at a large discount, by reason of the fact that those to whom the company was indebted had become tired of the long litigation, and hopeless of any satisfactory results therefrom; and that these claims were set up in an answer by Sweet in the action, and a decree rendered in his favor for them at their face value.
There are many other allegations, but these are among the principal ones. It is true that many of them are stated in the most general terms, and some of them partake more of the nature of legal conclusions than of specific allegations of facts. There is no reason why we should discuss at length all these allegations; for it practically makes no difference how many causes of action may be stated, or how many attempts there have been to state causes of action. The question is: Hoes the petition state one cause of action against the defendant in error, Timothy B. Sweet ? If it does, then we have reached the end of our inquiry.
Having determined that this suit is in the nature of a creditor’s bill, seeking to make the defendant in error, Timothy B. Sweet, as an officer and a director of the mill company, and heuce by operation of law a trustee for the creditors and stockholders of said mill company, responsible for his management of the business of said company, and that all acts of his as such officer about the business management and litigation resulted to the benefit of the creditors, and not to his individual benefit, and that he must account for all the property, moneys and revenues that came into his hands by virtue of his employment- as vice president, treasurer, aud active manager of the concerns of the said mill company, we shall examine the allegations of the petition to find whether it does state a cause of action in this behalf.
But,'before proceeding to this, it will be well to state that very many things set up in this petition, and alleged to have occurred prior to the filing of the petition in the case of Huidekoper v. The Rolling-Mill Company, T. B. Sweet, this plaintiff in error, and others, we must regard as finally disposed of by the decree in that case. It must be recollected that the plaintiff in error was a party to that action; that he had a large sum of money involved in its determination; that many of the acts now charged against Sweet as fraudulent had occurred long before the commencement of that suit, and at a time when the plaintiff in error must have had a somewhat active business relation to the company — advancing it money, and indorsing its notes, under such circumstances as would imply an understanding as to what was going on around him; or, at least, would put a prudent man on inquiry, and cause him to follow an ordinary dictate of business prudence — to investigate the condition of affairs. He alleges that the knowledge of many, if not all, of these acts of Sweet which are nowr chai’ged as fraudulent, did not come to him until after the rendition of the decree in that action; but he ought to have shown some sufficient reason why he did not sooner discover them, or that, with the exercise of reasonable care and diligence, he could not have sooner discovered them; because it has been held, in a great many cases, that reasonable opportunities for discovering frauds practiced under such circumstances, are equivalent to knowledge in a certain class of cases, and to notice in another class of cases. Over seven years .had elapsed since the rendition of the decree in that case before this action W'as commenced. Some of the acts of Sweet, now complained of as being fraudulent as against the plaintiff in error, occurred almost two years before the decree in the Huidekoper case. "With the opportunities of the plaintiff in error to acquire knowledge of these transactions, and with a large pecuniary interest to prompt an investigation, they have been so long waived, if not acquiesced in, that presumption is against the pleader; and to sustain their fraudulent character there must be not only vigorous pleading sustained by strong proof, but there should be a good and sufficient reason given why the discovery was not sooner made. So that we must assert that, so far as the acts of Sweet are concerned prior to the commencement of the action of Huidekoper, the laches of the plaintiff in error has been such that we shall regard the decree in that action as a final disposition of all the allegations in the petition respecting them. So far as the record develops, no attempt has been made in the district court to set aside the decree in the case of Huidekoper v. Sweet and others for the reason that it was fraudulent, or because it was obtained by fraud. We cannot vacate such a judgment, or disregard it in a collateral proceeding. Proceedings to vacate must originate in the district court. If facts come to the knowledge of the plaintiff in error after the time elapses prescribed by the statute for the commencement of such proceedings, it may be that some equitable remedies can be resorted to. But, be that as it may, we see no way in which we can give the plaintiff in error the benefit of his allegations respecting the numerous transactions of Sweet with the revenues of the company, before the rendition of the decree, so as to aid the attempt in the case to charge him as a trustee of the creditors of the company, except as hereinafter stated.
There is another thing that may as well be said now: We can take no notice of the allegations affecting Huidekoper, Coldren, and Derby, as they are not parties to this action, and their rights were adjudicated and declared in the previous litigation.
Eeducing to the most compact forms the material facts bearing upon the inquiry we are making, so as to be easily understood, they are as follows: The Topeka Boiling-Mill Company began business about the 15th day of April, 1874. The defendant in error, Timothy B. Sweet, was its vice president and treasurer — its chief and controlling officer. The mills were operated by the company until the 31st of December, 1874, under the active management of Sweet, when they were placed in charge and under the control of a receiver, appointed by the Shawnee county district court. On the 12th day of May, 1874, the rolling-mill company made a promissory note to the plaintilf in error for the sum of $5,000, with interest at 12 per cent, per annum from date, payable in eight months, in consideration of so much money advanced by him for the company, and on September 24, 1874, to secure the payment of this note, executed a mortgage on the real estate and mills of said company. On the 22d day of August, 1874, the plaintiff in error, for the accommodation of said company and its surety, T. B. Sweet, indorsed the promissory note of the company for $1,000, due in thirty days, with interest at 12 per cent., which he was compelled to and did pay. On the 11th day of December, 1874, he recovered against said company judgments before a justice of the peace aggregating $852.85 and $31.50 costs. On the 30th day of December, 1874, judgment was recovered against the company in his favor for $171.10. At the time the rolling-mill company went into the hands of a receiver, it owed the plaintilf in error over $7,000. It delivered to him one of its first-mortgage bonds dated January 1st, payable in five years, with interest according to coupons attached. On the 21st day of December, 1874, A. C. Huidekoper commenced an action in the district court of Shawnee county against Sweet and others, alleging the insolvency of the company, the fraudulent possession and use of some of its first-mortgage bonds by Sweet and other of its officers, and praying for the appointment of a receiver and for other relief. On the 31st of December, 1874, a receiver was appointed, who took possession of the property of every kind and description of the company. The plaintiff in error was made a party in this action, and filed an answer setting up his claims against the company as above set forth.
It is alleged that while this suit was pending, and prior to the trial, the defendant in error, Sweet, the plaintiff Huidekoper, and the Birmingham iron foundry, a defendant in the action, entered into an agreement in writing wherein it was stipulated that they would not contest each other’s claims, but have a judgment rendered as speedily as possible, and that each of them should share equally in the benefit of any decree of the court that might be rendered in his favor; and, if the mills and property were sold under a decree, that they should buy them in, and each should have one-third interest therein. On the 21st day of December, 1876, a decree wras rendered by the district court of Shawnee county, declaring the amount due the Birmingham iron foundry a first lien on the property of the mill company; that the first-mortgage bonds held by Huidekoper, the plaintiff in error, and others, were the second lien, aud the amount found due the defendant in error Sweet the third lien. The property was sold by the sheriff of Shawnee county to Sweet, Huidekoper, and the Birmingham iron foundry, for $60,000, and the proceeds of the sale were credited according to the liens as fixed by the decree, and the mills and property were afterward sold by these parties to the Union Pacific railroad company.
It is alleged that the contract made between Huidekoper, the Birmingham iron foundry, and Sweet, was made with the intent, as far as Sweet was concerned, to cheat, wrong, and defraud the stockholders and creditors of the mill company; that, at the time said contract was made, Sweet, as treasurer, had in his hands a large sum of money belonging to the company ; that he used this money to buy up claims against the company at a large discount, and then set them up in his answer against the company at their full face value, instead of giving the company the benefit of the large discount obtained by him; that Sweet had a sum of money, as treasurer of said company, at that time sufficient to pay off all the demands against the rolling-mill company, except those of Huidekoper and the Birmingham iron foundry, and that instead of using it for that purpose, he used the funds of the company to buy up claims in his own name, and for his own individual benefit.
It will be recollected that the agreement between the Birmingham iron foundry, Huidekoper, and Sweet, was made on the 30th day of August, 1876, and the decree in the Huidekoper action was rendered on the 21st day of December, 1876. The action, at the time of the agreement, had been pending for about two years. The agreement was necessarily a secret one, and it is not strange that the plaintiff in error, or the other creditors of the rolling-mill company, should not be possessed of any knowledge of it. The nature of this agreement is such, that great caution would be observed by the contracting parties to keep it from the knowledge of the other creditors, and it is not surrounded by a chain of circumstances, like other acts of Sweet, that lead to the almost inevitable conclusion that the plaintiff in error knew, or was in such a condition and had such a relation to these parties, as to have such opportunities of knowledge, as to be charged with notice of the existence of such a contract before the determination of the Huidekoper action; while, to all those acts and transactions of Sweet alleged to have taken place before the commencement of the action by Huidekoper, he had such opportunities of knowledge. This agreement was made a comparatively short time before the rendition of the decree, long after the issues were made up, the claims of the creditors presented, and all the active investigation and work of the law suit had been done. We have not the record of the Huidekoper suit before us ; but it is alleged in this petition that the claims purchased by Sweet at a large discount with the funds of the company, after he had made the agreement with Huidekoper and the Birmingham iron foundry, were set up in his answer against the company, and that in the rendition of the decree in that case he had the benefit of the full face value, with interest on said claims.
We are not prepared to say that such a contract as that entered into by Sweet, Huidekoper and the Birmingham iron foundry is inherently vicious, nor is it necessary for the purpose of this opinion to vigorously denounce it; for even were it free from all shadow of suspicion or the taint of fraud, if Sweet in a secret manner took advantage of it to buy claims against the company at a large discount with the funds of the company, then in his hands as its treasurer, and recovered a judgment against the company for the full face value of the claims so purchased, with interest, he violated his trust, and every rule of justice, and every dictate of common honesty. There is a distinct allegation in the petition that the knowledge of the agreement and the subsequent action of Sweet by virtue of it, did not come to the plaintiff in error until long after the rendition of the decree in the Huidekoper action, and within two years before the commencement of this action. It may be that this allegation of itself is sufficient for the purpose of the pleading; but when it is strengthened by the nature of the facts alleged, and the very great probabilities of the situation, it seems but right to give a party who claims to have been greatly injured by reason of gross violations of ordinary trust and confidence an opportunity to prove the facts as charged. We think, with the exception of this comparatively recent and remarkable transaction, the contention of the defendant in error that the plaintiff in error in this action has been guilty of laches is sufficiently sustained so as to banish from the consideration of the case all the other statements of causes of action against Sweet. But with respect to this one, it has been so often declared by the courts — the rule is such a familiar one — that the law will not permit ^e officers of a corporation to so manage its affairs as to result to their private and personal advantage, that it is within the common knowledge of the great body of the people of this country. They must use every honorable means to enhance the general interest of the corporation for the special advantage of the stockholders and creditors. They are universally held to the highest measure of duty and the most scrupulous good faith in their transactions with the business of the corporation. So rigid is the rule — that no one acting in the capacity of a trustee can derive any benefit from the care, control, management or investment of trust funds — that is applied by all courts, without exception, and without any relaxation whatever. There is not to be found in any of the books any better or stronger statement of the law on this question than that contained in the opinion of Chief Justice Horton, in the case of Ryan v. L. A. & N. W. Rly. Co., 21 Kas. 365.
The questions arising in this case as to the liability of Sweet, as an officer of the mill company, to its stockholders and creditors for the resulting profit of his use of the company funds, are determined by the court in that case. The petition states sufficient in this behalf to constitute a cause of action against Sweet; so that, if, on the trial that is to follow, these averments are supported by evidence, he should be compelled to account to the creditors of the mill company , . 7, ^ for such part of the proceeds of his receipts from the sale of the property, and the money he received from the receiver, as the facts will justify. We hold that in this case the petition states a cause of action against Sweet, as above suggested, and this is sufficient for the purpose in view. The defendant in error took the risk of the admission of certain recited facts that results from the filing of the demurrer. We have treated these admissions as the averments of the petition justify. What the real facts are will be apparent when the case is tried on full proof.
We express no opinion, further than to say that the petition does state a cause of action, and it is therefore recommended that the ruling of the district court be reversed, and the cause remanded, with instructions to overrule the demurrer.
By the Court: It is so ordered.
Horton, C. J., and Valentine, J., concurring.
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Green, J.:
This case concerns the validity of a mechanic’s lien filed by Wichita Sheet Metal Supply, Inc. (WSM) under K.S.A. 60-1103(a)(1). The mechanic’s lien statement filed by WSM named Merit Construction Company, Inc., as the general contractor on a construction project when Merit General Contractors, Inc., a separate entity, was the actual general contractor. The trial court determined that the mechanic’s lien was fatally defective and unenforceable due to WSM naming the wrong general contractor. As a result, the trial court granted summary judgment in favor of Merit General Contractors, Inc.
On appeal, WSM raises a variety of arguments as to why the trial court erred in granting summary judgment to Merit General Contractors, Inc. Nevertheless, we agree with the trial court’s decision. It is uncontroverted in this case that WSM failed to name the proper general contractor in its mechanic’s lien statement, as required by K.S.A. 60-1103(a)(1). It is further uncontroverted that WSM had actual knowledge that Merit General Contractors, Inc., was the general contractor on the construction project several months before WSM filed its mechanic’s lien. With such knowledge, WSM, by acting in a reasonably diligent manner, could have verified that Merit General Contractors, Inc., was indeed the general contractor and could have properly named it on the mechanic’s hen statement. Based on the uncontroverted facts, WSM’s arguments that it should be excused from the contractor-naming requirement of K.S.A. 60-1103(a)(1) are meritless.
Finally, in its reply brief, WSM raises a new issue concerning its right to recover on a payment bond executed by Inland Insurance Company (Inland) and Merit General Contractors, Inc. Nevertheless, because WSM never raised the bond issue in its initial appellate brief filed with this court, we are unable to consider WSM’s argument. Accordingly, we affirm the trial court’s decision to grant summary judgment in favor of Merit General Contractors, Inc.
Merit General Contractors, Inc., was the general contractor on a commercial construction project known as Dillon’s Store’s Supermarket #79, located at 14301 Metcalf Avenue in Overland Park (hereinafter referred to as the Dillon’s project). Goss Service Company, Inc. (Goss), was a subcontractor supplier to Merit General Contractors, Inc., on the Dillon s project. From April 2003 through August 7, 2003, WSM provided materials to Goss for the Dillon’s project.
On June 30, 2003, Shelley Hart, WSM’s credit manager, signed a lien waiver form on behalf of WSM. The hen waiver form stated that WSM had been paid by Goss “for all materials in the amount of $2000 and/or labor by us to your firm up to and including 6-30-03 for use on the Dillons #79 and do hereby release all hen rights.” The hen waiver form was directed to and clearly named “Merit General Contractors, Inc.” As of June 30, 2003, Goss owed WSM $77,792.59, plus interest and allowable attorney fees, in unpaid invoices for die Dillon’s project.
In the summer and early fall of 2003, Hart contacted Goss because it was past due on its payments to WSM for materials provided for die Dillon’s project. In her affidavit, Hart stated that she ‘"understood Pat Larson, one of the principals of Goss, to refer to the general contractor for the Project as "Merit Construction’ as did Mike Legero, the branch manager at All American Supply.”
After receiving a hen waiver and final release, Hart wrote to Stan Bachman, the president of Merit, on September 24, 2003. The parties have not pointed to the hen waiver and final release in the record. In her letter, Hart notified Bachman that WSM was unable to sign the hen waiver and final release as there was a substantial amount due for materials on the Dillon’s project. Moreover, Hart stated that WSM would exercise its right to file a mechanic’s hen unless a substantial reduction of the debt had been made before October 24, 2003.
According to Bachman, Merit General Contractors, Inc., relied upon the hen waiver signed by WSM on June 30, 2003, when releasing payment to Goss. Moreover, Bachman stated in his affidavit that Merit General Contractors, Inc., had no knowledge that WSM was owed any money by Goss other than the $2,000 that WSM had acknowledged receiving in its June 30,2003, hen waiver. Bachman further stated that had Merit General Contractors, Inc., known that WSM was owed money by Goss, it would not have released payment to Goss.
In responding to Hart’s September 24, 2003, letter, Bachman wrote that WSM had signed the waiver form in which it had waived its lien rights for all materials shipped on or before June 30, 2003; that many of the invoices after June 30, 2003, were for hand tools or equipment purchases that were not “lienable” as they were not incorporated into tire Dillon’s project; and that WSM’s total included materials that were not incorporated into the work on the Dillon’s project. Bachman concluded his letter to Hart by stating that if WMS chose to file a lien, Merit General Contractors, Inc., would consider the hen “fraudulent and slanderous.”
Bachman’s letter was written on stationery that had “MERIT” in large letters at the top of the page. The stationery also had the headings “GENERAL CONTRACTORS,” “DESIGN/BUILD,” and “CONSTRUCTION MANAGERS” across the top of the page underneath the name “MERIT.”
In December 2003, WSM filed a mechanic’s hen on the Dillon’s property for $97,029.90, plus interest, costs, and fees, which was for materials furnished through August 7, 2003, under WSM’s contract with Goss. Hart executed the mechanic’s hen statement on behalf of WSM. In the mechanic’s hen statement, Merit Construction Company, Inc., was named as the general contractor on the Dillon’s project. When questioned about this hen during his deposition, Legero testified that he vaguely remembered Hart calling him and asking for die information, such as address, general contractor, and building permit number, that she needed for the hen. When questioned whether he filed a lot of hens, Legero testified that he filed more liens “than I would like to” and that it was “standard procedure in our business.” WSM has five branches of business with offices in surrounding states.
On December 22, 2003, a letter from WSM with an attached copy of the mechanic’s hen was dehvered to Merit Construction Company, Inc., do Stan Bachman, President, by certified mail restricted delivery. Bachman signed for the letter.
In February 2004, National Restoration Company (National) commenced the instant case by filing a petition to foreclose its mechanic’s hen on the Dillon’s property. WSM was named as a defendant in the action by virtue of WSM’s mechanic’s hen on the Dillon’s property. In March 2004, WSM filed its answer, counterclaim, and cross-claims relating to its mechanic’s lien. WSM requested that the trial court determine its rights in and to the Dillon’s property, that its mechanic’s lien be foreclosed, and that the trial court order the sale of the Dillon’s property to satisfy the hen. In addition, WSM asked for a judgment against Goss for $98,268.64, plus interest, costs, and fees. National and Merit General Contractors, Inc., eventually settied their issues, and National was dismissed from the case.
In June 2004, Merit General Contractors, Inc., as principal, and Inland, as surety, posted mechanic’s lien bond number 406120-1 in the event that WSM’s mechanic’s lien was determined to be valid and enforceable. WSM then filed a claim on the bond.
Merit General Contractors, Inc., later moved for summary judgment against WSM. Merit General Contractors, Inc., argued that WSM’s mechanic’s hen statement improperly named Merit Construction Company, Inc., instead of Merit General Contractors, Inc., as the contractor on the Dillon’s project. Merit General Contractors, Inc., further argued that WSM’s mechanic’s lien must fail because it included inappropriate and nonlienable items.
In the evidence provided to support its motion for summary judgment, Merit General Contractors, Inc., provided an affidavit from Bachman stating that Merit General Contractors, Inc., was the general contractor on the Dillon’s project. Bachman further stated that Merit Construction Company, Inc., is a separate and distinct corporate entity from Merit General Contractors, Inc., and had no contract or subcontract on the project.
In responding to Merit General Contractors Inc.’s motion for summary judgment, WSM provided nothing to dispute Bachman’s statements. Instead, WSM raised several arguments as to why summary judgment should not be granted, including that Merit General Contractors, Inc., had created name confusion and that Merit General Contractors, Inc., had received actual notice of the mechanic’s hen.
WSM provided evidence that Merit Construction Company, Inc., and Merit General Contractors, Inc., were registered as separate corporate entities with the Kansas Secretary of State’s office. Based on the information provided by the Kansas Secretary of State’s office, both entities were active and in good standing. Both had the same address of 950 Kansas Avenue in Kansas City. Both had the same resident agent in Prairie Village. Merit Construction Company, Inc., had been incorporated in 1991, and Merit General Contractors, Inc., had been incorporated in 1999. Five months before WSM printed the information from the Kansas Secretary of State website, both companies had filed correct annual reports.
Also attached to WSM’s response to Merit General Contractors, Inc.’s motion for summary judgment were pages from Merit General Contractors, Inc.’s website. The pages appear to have been printed on May 12, 2006, which was nearly 2 years after WSM filed its mechanic’s lien. One of the pages, which appears to be the home page of the website, prominently identified “MERIT General Contractors, Inc.,” in bold letters. Another page of the website summarizing the Dillon’s Store # 78 project specifies that the project “was the first in a growing series of projects that MGCI is performing for Dillons Food Stores . . . .” WSM pointed out that on the principals page of the website, the officers’ and professional staffs profiles referred to just “Merit.” Nevertheless, the “contact us” pages listed Bachman as the president of Merit General Contractors, Inc., and also listed Don Crabtree as Merit General Contractors, Inc., Business Development.
Apparently, the parties appeared before the court in May 2006 to argue Merit General Contractors, Inc.’s motion for summary judgment. No decision was made at that time on Merit General Contractors, Inc.’s motion for summary judgment. In August 2007, WSM moved to amend its lien statement or, alternatively, for a determination that an amendment was not required. WSM made the following argument as to why the trial court should grant its motion:
“While Merit Construction Co., Inc and Merit General Contractors, Inc. are legal entities organized on different dates, under the above facts they are not separate legal entities for these circumstances. Stan Bachman, the executive officer of each, is the person who received the mechanic’s hen, notices, and correspondence detailed above. Mr. Bachman never once raised an issue that a differ ent entity should have been addressed. Of course, even on its own website and on. internally generated letterhead, Merit makes no such distinction.”
WSM requested that the trial court grant it leave to amend its Hen statement or that it determine that tihere was an identity between Merit Construction Company, Inc., and Merit General Contractors', Inc., so that it would be unnecessary to amend the lien statement.
Attached to WSM’s motion to amend were photos apparendy taken of 950 Kansas Avenue, the address listed for both Merit General Contractors, Inc., and Merit Construction Company, Inc. WSM statéd that the photos were taken of the fenced lot, buddings, and the parking area at 950 Kansas Avenue as of June 9, 2006, which was over 2Yz years after WSM filed its mechanic’s lien. The signage depicted in the pictures showed either “Merit Construction” or “Merit Construction Co.” In its motion to amend, WSM alleged that there was no external signage 'as- of June 9, 2006, that showed the name “Merit General Contractors, Inc.”
In September 2007, the trial court issued its -journal entiy of judgment granting Merit General Contractors, Inc.’s motion for summary judgment. The trial court determined that WSM’s lien was fatally defective and unenforceable because the lien statement named the wrong general contractor. Accordingly, the trial court denied WSM’s claim on the lien bond posted by Inland, as surety for Merit General Contractors, Inc. In responding to WS M’s claims that it would be inequitable to enforce the hen statutes in such a rigid manner, the trial court found that no equity jurisdiction was available to it because WSM had a remedy at law. Finally, the trial court denied WSM’s motion to amend its mechanic’s lien statement in light of its findings that the lien was defective and unenforceable. The trial court determined that it had no authority to permit amendment of WSM’s hen after the time for fihng the hen had expired.
Standards of Review
On appeal, WSM argues that the trial court erred in granting Merit General Contractors, Inc.’s motion for summaiy judgment.
In reviewing the trial court’s decision to grant summary judgment, an appellate court applies the following standard of review:
‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, 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. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of tire party against whom the ruling is sought. When opposing a motion' for summaiy judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summaiy judgment must be denied.’ [Citations omitted.]” ’ [Citation omitted.]” Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007).
Further, the present case requires this court to decide whether WSM’s mechanic’s lien statement complied with the statutory provisions relating to mechanics’ liens. To the extent that the material facts on this issue are uncontroverted, this court will apply the following standard of review: Whether a mechanic’s lien statement complies with statutory requirements is a question of law over which an appellate court exercises unlimited review. See Buchanan v. Overley, 39 Kan. App. 2d 171, Syl. ¶ 1, 178 P.3d 53 (2008).
WSM’s Arguments
WSM raises the following five arguments as to why the trial court’s grant of summaiy judgment was in error: (1) that it is improper to grant summaiy judgment when discoveiy is not complete and there are disputed material facts; (2) that the contractor-naming issue evaporates on the facts and actual notice of the lien received by Merit General Contractors, Inc., through Bachman; (3) that the purpose of a statutory requirement must be considered in determining whether the statutoiy requirement has been met; (4) that Merit General Contractors, Inc., was the source of any apparent confusion and should not benefit from its acts; and (5) that the statutory requirements for a valid mechanic’s lien have been met under the facts of this case.
Because mechanics’ hens are statutory creatures, we will first consider whether WSM met the statutory requirements to create a valid mechanic’s hen. If WSM did meet the statutory requirements, then a valid mechanic’s hen was created. On the other hand, if WSM did not meet the statutory requirements, then we must determine whether WSM came within an exception to the statutory requirements.
I. Did WSM meet the statutory requirements to create a mechanic’s lien?
A mechanic’s hen is statutory and can only be created in the manner set forth in the statutes. Parties claiming a mechanic’s lien have the burden of bringing themselves clearly within the statutory provisions. Creme de la Creme (Kansas), Inc. v. R&R Int’l, Inc., 32 Kan. App. 2d 490, 493, 85 P.3d 205, rev. denied 278 Kan. 844 (2004). Although the mechanics’ hen statutory provisions are liberally construed once a hen attaches, the requirements for a lien to come into existence must be strictly met. J. Walters Constr. Co. v. Greystone South Partnership, 15 Kan. App. 2d 689, 691, 817 P.2d 201 (1991).
K.S.A. 60-1103 outlines the mechanic’s lien requirements in relevant part as follows:
“(a) Procedure. Any supplier, subcontractor or other person furnishing labor, equipment, material or supplies, used or consumed at the site of the property subject to the lien, under an agreement with the contractor, subcontractor or owner contractor may obtain a lien for the amount due in the same manner and to the same extent as the original contractor except that:
(1) The lien statement must state the name of the contractor and be filed within three months after the date supplies, material or equipment was last furnished or labor performed by the claimant." (Emphasis added.)
Under K.S.A. 60-1103(a)(1), the contractor must be named in a mechanic’s hen statement. The lien statement in this case identified Merit Construction Company, Inc., as the contractor on the Dillon’s project. Merit General Contractors, Inc., brought forth evidence in its motion for summary judgment that tire proper contractor to be named in the mechanic’s lien statement was actually Merit General Contractors, Inc. In responding to Merit General Contractors, Inc.’s motion for summary judgment, WSM made a variety of arguments as to why its mechanic’s lien was valid, including that Merit General Contractors, Inc., had created the name confusion and that Merit General Contractors, Inc., had received notice of the lien. WSM raises those same arguments on appeal. With these arguments, WSM implicitly concedes that its mechanic’s Hen statement identified the wrong entity, Merit Construction Company, Inc., as the contractor. By naming the wrong entity as the contractor, WSM did not comply with K.S.A. 60-1103(a)(1).
This court has previously decided that a mechanic’s hen statement that fails to name the proper contractor is fatally defective. Tradesmen Int’l, Inc. v. Wal-Mart Real Estate Business Trust, 35 Kan. App. 2d 146, 153, 129 P.3d 102 (2006). Tradesmen involved the exact contractor-naming issue that is involved here. There, Tradesmen, a subcontractor furnishing labor under a contract with another subcontractor, filed a mechanic’s hen statement against property owned by Wal-Mart. The hen statement failed to name the contractor as Merit General Contractors, Inc., and instead named Merit Construction Company, Inc., as the contractor. Tradesmen later filed suit to foreclose its mechanic’s lien and to recover the amount of its mechanic’s hen plus interest and costs from the contractor’s payment bond.
Several months after suit was filed, Tradesmen moved to amend its mechanic’s hen statement to correctly name Merit General Contractors, Inc., as the proper contractor. The defendants opposed Tradesmen’s motion to amend and argued that Tradesmen could not be allowed to amend the hen statement to correctly name the contractor after the statutory period for filing a valid hen had expired. Nevertheless, the trial court allowed Tradesmen to amend its hen statement.
On appeal, this court in Tradesmen held that the trial court had no authority to allow the amendment of the hen statement. Recognizing that Tradesmen had failed to create a valid hen against the property by its original mechanic’s hen statement, this court stated:
“Here, Tradesmen moved to amend the lien statement to substitute the name of an entirely different company as tire contractor. Because the original lien statement contained the name of the wrong contractor, it failed to create a valid lien against the property. ‘There is no privity of contract between a subcontractor and a property owner, and the former can obtain a hen only by complying with the statutory provisions. [Citations omitted.]’ Sutherland Lumber Co. v. Due, 212 Kan. 658, 660, 512 P.2d 525 (1973). Tradesmen did not establish the connection between a subcontractor and the owner of property by naming the contractor as required by K.S.A. 60-1103(a)(1).” 35 Kan. App. 2d at 155.
This court held that Tradesmen, by not following an essential requirement of K.S.A. 60-1103 to name the proper contractor, had failed to bring itself within the statutory provisions to file a valid mechanic’s lien.
Determining that Tradesmen’s failure to name the proper contractor in the mechanic’s hen statement made it vitally defective, this court stated as follows:
“Our Supreme Court has held that a mechanic’s hen statement filed by a subcontractor which fails to state the name of the contractor is fatally defective. Badger Lumber & Coal Co. v. Schmidt, 122 Kan. 48, Syl. ¶ 1, 251 Pac. 196 (1926). D.J. Fair Lumber Co. [v. Karlin, 199 Kan. 366, 430 P.2d 222 (1967),] concluded that K.S.A. 60-1105(b) does not permit ‘amendment of a vitally defective hen statement after the statutory period in which to file such hen has expired.’ 199 Kan. at 372. Thus, the hen statement was vitally defective when filed and could not be amended to allow Tradesmen to correcdy name the contractor.” 35 Kan. App. 2d at 157-58.
As a result, this court held that the trial court had no authority to allow the amendment of the hen statement.
Here, the evidence is uncontroverted that WSM failed to name the correct contractor in its mechanic’s lien statement. Thus, based on the reasoning in Tradesmen, the lien statement was vitally defective when filed. It is also undisputed that WSM failed to move to amend its hen statement to correctly name Merit General Contractors, Inc., as the contractor before the statutory period for filing a valid hen had expired. By not following an essential requirement of K.S.A. 60-1103 to name the proper contractor, WSM failed to bring itself within the statutory provisions to file a valid mechanic’s hen.
Nevertheless, WSM suggests that it should be excused from the contractor-naming requirement of K.S.A. 60-1103 based on the unique facts of this case and equitable considerations. Hence, our analysis turns to whether there is an exception that would excuse WSM’s failure to meet the statutory requirements of K.S.A. 60-1103 to create a valid mechanic’s lien.
II. Should WSM be excused from the contractor-naming requirement of K.S. A. 60-1103(a)(1)?
WSM suggests that it should be excused from the contractor-naming requirement of K.S.A. 60-1103(a)(1) because Merit General Contractors, Inc., itself created the confusion as to its name and identity and because Merit General Contractors, Inc., through Bachman, received actual notice of the mechanic’s lien. WSM argues that under those facts, there is no need to distinguish between the two “Merit companies,” which were located at the same address and managed by the same individual.
Nevertheless, WSM’s argument that Merit General Contractors, Inc., created the confusion as to its name and identity is disingenuous given the fact that much of the evidence cited by WSM to support its argument was gathered years after WSM filed its mechanic’s lien. Specifically, in its appellate brief, WSM refers to pictures that it took of 950 Kansas Avenue, the address listed for both Merit General Contractors, Inc., and Merit Construction Company, Inc., and to pages that it printed from the website of www.meritkc.com. Nevertheless, the pictures were taken in June 2006 and the website pages were printed in May 2006, which dates were approximately 2Vz years after WSM filed its mechanic’s lien. Such evidence cannot be used to show that Merit General Contractors, Inc., had created the confusion as to its name and identity at the time WSM filed its mechanic’s hen. Moreover, even if the website pages could be used to show confusion, any probative value of this evidence would be diminished by the fact that Merit General Contractors, Inc., was clearly and specifically identified throughout the website.
Moreover, two problems exist with WSM’s argument — one based on knowledge and one based on the record. The biggest hurdle facing WSM in this case is that WSM had actual knowledge of the correct name of the general contractor before the mechanic’s lien was filed. Approximately 6 months before WSM filed its mechanic’s lien, it had prepared and signed a mechanic’s lien waiver form that was directed to and clearly named Merit General Contractors, Inc. When questioned in her deposition about whether the lien waiver form had been sent to her by Goss, Hart testified that the lien waiver form was a WSM standard form prepared by her:
“And do you recognize the handwriting on the partial hen waiver for the Dillon’s No. 79 store?
“[Hart:] Yes; it is mine.
“Is all of the handwriting on this piece of paper yours?
“[Hart:] All of it except the notary’s handwriting.
“Okay. Was this a form that you were provided by Goss, or did you prepare this form?
“[Hart:] I prepared the form.
“Is this a standard form you use on a regular basis?
“[Hart:] When our customer does not have their own form, then we do use this form.” (Emphasis added.)
Based on Hart’s testimony, WSM prepared the hen waiver form, which had Merit General Contractors, Inc.’s name fisted on the form. Having the correct name of the general contractor in its files, WSM cannot now claim that it had been misled or confused as to the proper contractor. As the attorney for Merit General Contractors, Inc., asserted during her oral argument before this court, WSM could have named “Merit Construction Company, Inc., or Merit General Contractors, Inc., or both” in its mechanic’s lien statement if it was confused as to which entity was the correct general contractor on the construction project.
At the very least, the mechanic’s lien waiver form put WSM on implied notice, which is sometimes called implied actual notice, that Merit General Contractors, Inc., was the general contractor on the Dillon’s project. Implied notice is notice “that is inferred from facts that a person had a means of knowing and that is thus imputed to that person.” Black’s Law Dictionary 1090 (8th ed. 2004). Implied notice is also “actual notice of facts or circumstances that, if properly followed up, would have led to a knowledge of the particular fact in question.” Black’s Law Dictionary 1090-91. Here, WSM had actual notice that Merit General Contractors, Inc., was the general contractor on the Dillon’s project. If WSM had properly followed up on this information and made an inquiry, it would have led WSM to the correct name of the general contractor on the Dillon’s project. In light of WSM’s actual notice of the correct general contractor, WSM’s arguments as to name confusion by Merit General Contractors, Inc., are not sound.
Furthermore, the record is devoid of any evidence showing that WSM did any due diligence in attempting to learn the correct name of the general contractor before filing its mechanic’s lien. In fact, die record contains a contract between The Kroger Co., the owner of Dillon’s, and Merit General Contractors, Inc., for the Dillon’s project. The record also contains a contract between Goss and Merit General Contractors, Inc., on the Dillon’s project. Throughout both of those contracts, Merit General Contractors, Inc., was clearly identified as the contractor on the Dillon’s project. Moreover, there are letters, an emergency contact form, and sample invoices attached to the contract between Goss and Merit General Contractors, Inc., which clearly name Merit General Contractors, Inc. Hence, the record shows that if WSM had exercised due diligence and had attempted to verify the correct name of the general contractor, it would have been able to ascertain that Merit General Contractors, Inc., was indeed the general contractor on the Dillon’s project.
Various Cases Cited in WSM’s Appellate Brief
In its appellate brief, WSM fails to cite any cases that have the circumstances present here. Instead, in arguing that Merit General Contractors, Inc., was not actually confused by the wrong name in WSM’s hen statement, WSM cites several cases that are not on point with this case. See Trane Co. v. Bakkalapulo, 234 Kan. 348, 672 P.2d 586 (1983) (mechanic’s hen statement’s verification, which was signed by attorney for corporate subcontractor, was not defective for failing to state attorney’s representative capacity in verification statement; redundant for affiant to restate representative capacity in affidavit where it already appeared in hen state ment being verified); J. Walters Constr. Co., 15 Kan. App. 2d 697 (determining that statements of labor and material that were attached to hen statement were sufficient to meet the “ ‘not too demanding’ ” standard used in testing the adequacy of the itemization of labor and materials furnished); Kopp’s Rug Co. v. Talbot, 5 Kan. App. 2d 565, 620 P.2d 1167 (1980) (holding that service of notice of lien statements on homeowners was sufficient even though endorsement stated “return receipt requested” instead of “return receipt requested showing address where delivered” where service was handled in same manner and where homeowners received and signed for address shown on return receipt; moreover, actual notice was sufficient under statute).
None of those cases cited above involved the situation that is present here: the filing of a mechanic’s hen statement that failed to name the correct general contractor. Contrary to the instant case, the hen statements in those cases were not fatally defective. As a result, they do not support WSM’s argument here.
WSM also cites two cases that dealt with the amendment of pleadings under K.S.A. 60-215(a). See Marr v. Geiger Ready-Mix Co., 209 Kan. 40, 495 P.2d 1399 (1972); Anderson v. United Cab Co., 8 Kan. App. 2d 694, 666 P.2d 735 (1983). Again, those cases are inapphcable here. Because neither case deals with the statutory creation of a valid mechanic’s hen, they do not have apphcation to the instant case.
Prejudice
Moreover, the fact that Bachman, the president of Merit General Contractors, Inc., received a copy of the mechanic’s hen statement and, therefore, Merit General Contractors, Inc., may not have been prejudiced by WSM’s failure to name the proper contractor should not carry the day in this case. As we discussed in Tradesmen, the issue of prejudice does not enter into the consideration of whether a valid mechanic’s hen has been created:
“In our extensive research on this issue, however, we have not discovered a case which has considered the issue of whether defendants have been prejudiced by deficiencies in a lien statement. Instead, we find that the cases consistently hold to the rules that parties can only create a mechanic’s lien by strictly following the requirements contained in the statutory provisions and that tiróse parties have the burden of bringing themselves within the statutory provisions. [Citations omitted.]” 35 Kan. App. 2d at 157.
This court cited to D.J. Fair Lumber Co., 199 Kan. 366, where our Supreme Court recognized the well-settled rule that equitable considerations ordinarily do not give rise to a mechanic’s lien and that a subcontractor can only obtain a mechanic’s lien by compliance with statutory provisions. As a result, the issue of whether Merit General Contractors, Inc., suffered any prejudice in this case should not enter into this court’s consideration of whether a valid mechanic’s hen had been created.
Name Confusion
In the final part of its appellate brief, WSM maintains that the statutory requirements for a valid mechanic’s hen have been met on the facts of this case. Nevertheless, based on our previous analysis, the proper contractor was not named in WSM’s mechanic’s lien statement. We discussed previously that in order to have a valid mechanic’s hen under K.S.A. 60-1103, the correct contractor must be named in the mechanic’s lien statement.
Instead of showing this court that Merit Construction Company, Inc., was actually tire general contractor on the Dillon’s project, WSM makes the following argument: “The company which now attempts to call itself Merit General Contractors, Inc., does not distinguish itself from Merit Construction Co., Inc. In such circumstances, Merit should not be permitted any advantage by the confusion of name it has created.” WSM cites Scott v. Strickland, 10 Kan. App. 2d 14, 691 P.2d 45 (1984), to support its argument.
In Strickland, this court affirmed the trial court’s decision allowing amendment under K.S.A. 60-1105(b) of a hen statement to add a joint owner. Jerry Wilson, d/b/a Woods-Ringstaff Lumber Company (Woods-Ringstaff), filed a mechanic’s hen for an unpaid lumber bill. Although the property on which the mechanic’s hen was filed was owned by Ceciha and Jimmie Scott in joint tenancy, the original hen statement only named Jimmie as the owner. After the statutory fihng period had expired, Woods-Ringstaff was allowed to amend its mechanic’s hen to add Ceciha as an owner.
Woods-Ringstaff later obtained a judgment to foreclose its mechanic’s hen on the subject property. On appeal, the Scotts argued that the failure of the original hen statement to name Cecilia as an owner and thus to attach to her interest in the property could not be cured by amending the statement after the statutory filing period had expired. In rejecting the Scotts’ argument, this court relied on Logan-Moore Lumber Co. v. Black, 185 Kan. 644, 651, 347 P.2d 438 (1959), where our Supreme Court stated that there is an identity of ownership among spouses so that an amendment to a valid hen against one spouse to add the name of the other spouse is proper. This court concluded that the trial court properly allowed amendment of the mechanic’s lien statement to name Ceciha as an owner. Strickland, 10 Kan. App. 2d at 22.
The Scotts also argued that the mechanic’s hen statement was deficient because it failed to specifically identify Forrest Strickland as the contractor. Nevertheless, the hen statement did name Strickland as receiving the materials provided on behalf of the Scotts. This court stated that the job and authority upon which WoodsRingstaff provided the building material were identified by the inclusion of Strickland’s name in the lien statement. Thus, this court concluded that the lien statement adequately identified Strickland as the contractor. Strickland, 10 Kan. App. 2d at 23.
Contrary to Strickland, the instant case does not encompass an “identity of ownership” situation. In Strickland, Woods-Ringstaff was merely attempting to add a joint owner to an already valid mechanic’s lien. The mechanic’s lien had already attached to the husband’s interest in the property because he had been named in the original lien statement. The Strickland court noted that “[a] mechanic’s hen may attach to any interest in the land held by the person for whom the materials were provided. In other words, a person holding any legal or equitable interest in realty may be an owner for the purposes of the mechanics’ lien statutes. [Citation omitted.]” 10 Kan. App. 2d at 22.
Here, WSM’s mechanic’s hen statement never identified a correct contractor. In fact, WSM’s mechanic’s hen statement contained no reference to Merit General Contractors, Inc. WSM seeks to amend its mechanic’s lien statement to identify an entirely sep arate entity. As a result, Strickland cannot be applied to the instant case. Moreover, the substitution of separate and distinct entities has been rejected in Logan-Moore Lumber Co. v. Black, 185 Kan. 644, Syl. ¶¶ 1 and 3.
Equitable Considerations
In further arguing that Merit General Contractors, Inc., is the source of any apparent confusion and should not benefit from its acts, WSM attempts to compare this case to United States v. MPM Contractors, Inc., 763 F. Supp. 488 (D. Kan. 1991). Nevertheless, MPM Contractors is both factually and legally distinguishable from the present case. First, MPM Contractors involved the issuance of a prehminary injunction to stop asbestos removal companies and their principal from disturbing the status quo and moving any assets beyond the jurisdiction of the court while an action for violations of the Clean Air Act was pending. Here, we are dealing with the validity of a mechanic’s hen, which is a creature of statute under K.S.A. 60-1103. K.S.A. 60-1103 sets out specific requirements that must be met in order for a mechanic’s hen to attach to property. Failure to meet those statutoiy requirements means that a valid hen was never created.
Second, there was significant evidence presented in MPM Contractors that McGill, the general manager of MPM and ARC, had treated the two corporations as one entity. The court in MPM Contractors cited the following factors to determine whether two corporations should be treated as separate entities or as the same entity: (1) undercapitalization of a one-person corporation; (2) failure to observe corporate formalities; (3) nonpayment of dividends; (4) siphoning of corporate funds by the dominant stockholder; (5) nonfunctioning of other officers or directors; (6) use of the corporation as a facade for operations of the dominant stockholder or stockholders; and (7) the use of the corporate entity in promoting injustice or fraud. Here, there was no indication that any of those factors were present.
Finally, the doctrines applied in MPM Contractors are based on equitable considerations. Nevertheless, recognizing that equitable considerations do not ordinarily give rise to a mechanic’s hen, our Supreme Court has stated:
“ ‘It is a settled rule in this state that equitable considerations do not ordinarily give rise to a mechanic’s lien. Being created by statute, a mechanic’s hen can only arise under the circumstances and in the manner prescribed by the statute. A hen claimant must secure a hen under the statute or not at all. [Citation omitted.] The validity of a hen created solely by statute depends upon the terms of the statute, and parties may not by estoppel enact or enlarge a statute. [Citation omitted.] There is no privity of contract between the subcontractor and the owner, and the [subcontractor] can only obtain a hen by compliance with the statutory provisions. It is not enough that [the subcontractor] has furnished the material and filed a hen.’ ” D.J. Fair Lumber Co., 199 Kan. at 369.
Because the doctrines in MPM Contractors are based on equitable considerations, they are not readily applicable to the case at hand.
Pointing out that equitable considerations have previously given rise to a valid Men, WSM cites Adair v. Transcontinental Oil Co., 184 Kan. 454, 338 P.2d 79 (1959). In Adair, our Supreme Court created an exception to the rule under Kansas law calling for strict construction of a lien statute in determining to whom and for what a hen statement gives a lien. Our Supreme Court held as follows:
“Where a number of oil and gas leases are operated as a single unit and materials are furnished or labor is performed under a single contract for the development of the leases, a single hen statement timely filed creates a valid and enforceable hen upon all such leases, which may be sold to satisfy the lien.” 184 Kan. 454, Syl. ¶ 3.
Recognizing that such a rule was necessary to prevent fraud, our Supreme Court stated as follows:
“The oil industry is fraught with brilliant and ingenious minds, some of which, lured to the industry by the element of chance and potentially fabulous profits, are bent upon sharp practices. The law must be ever vigilant to prevent fraud. If permitted to evade the hen statute by an independent conditional sales contract as set forth in the instant case, it would be possible for an unscrupulous oil and gas operator possessed of leases with questionable productive capacity to defeat just claims of the unwary who perform labor and supply materials in development of such oil and gas leases.” 184 Kan. at 472.
Our Supreme Court stated that “[i]t would be relatively simple to organize an expendable, controlled corporation with limited assets with which to make an independent contract for the development of the leases and conveniently defeat the liens in the event of failure, or to contract with an insolvent and accomplish the same result.” 184 Kan. at 472.
Adair created a narrow exception, based on equitable considerations, to the strict construction of a lien statutes in determining to whom and for what a lien statement gives a hen. The circumstances present in this case do not fit within the exception outlined in Adair. Moreover, our Supreme Court in Adair made clear that the exception was made to prevent unscrupulous practices or fraud by oil and gas operators against those providing labor or materials in the development of such oil and gas leases. Such an exception is not warranted here.
Here, any equitable argument made by WSM is defeated by the uncontroverted fact that it had actual knowledge of Merit General Contractors, Inc., as the general contractor on the Dillon’s project. With the correct name of the general contractor in its files, WSM should not be able to successfully argue that it was confused as to who the general contractor was on the Dillon's project. As discussed previously, the hen waiver form provided at the very least actual notice of Merit General Contractors, Inc.’s name that, if properly followed up, would have led it to definitively determine that Merit General Contractors, Inc., was the actual general contractor on the Dillon’s project. WSM’s failure to exercise due diligence by investigating the matter a little further cannot provide it with an equitable basis for relief.
How WSM in good faith can blatantly assert that name confusion was involved in improperly naming the general contractor is difficult to understand (especially when WSM had prepared and approved a hen waiver showing the name of the general contractor). There may be cases where a mechanic’s hen application should be excused from the contractor-naming requirement under K.S.A. 60-1103 based on the unique circumstances of the case or on equitable considerations, but this case does not appear to be one of them. As a result, WSM cannot be excused from the contractor-naming requirement of K.S.A 60-1103 in order for a valid mechanic’s hen to attach.
III. Should the trial court have granted summary judgment when discovery was not completeP
WSM maintains that it was improper for the trial court to grant summary judgment in this case when discovery was not complete and there were disputed material facts. WSM asserts that “[w]ho Merit is” is a disputed material fact that should have been resolved before summary judgment was granted.
“Ordinarily, a summary disposition of a pending case before the district court should not be granted until discovery is complete. [Citation omitted.]” Montoy v. State, 275 Kan. 145, 149, 62 P.3d 228 (2003). “However, if the facts pertinent to the material issues are not controverted, summary judgment maybe appropriate even when discovery is unfinished. [Citation omitted.]” Med James, Inc. v. Barnes, 31 Kan. App. 2d 89, 96, 61 P.3d 86, rev. denied 275 Kan. 965 (2003). An issue of fact is genuine when it has legal controlling force as to the controlling issue. A disputed question of fact that is immaterial to the issue does not preclude summary judgment. If a disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of material fact. Muhl v. Bohi, 37 Kan. App. 2d 225, 229, 152 P.3d 93 (2007).
As Merit General Contractors, Inc., points out, the question of “[w]ho is Merit?” is not a material fact in dispute and is not a mystery. WSM solved any mystery of “[w]ho Merit is” well before filing its lien statement when it filled out and signed the June 30, 2003, lien waiver form that clearly designated the proper contractor. It is uncontroverted that Merit General Contractors, Inc., was the actual contractor on the Dillon’s project and that WSM failed to name Merit General Contractors, Inc., in its mechanic’s lien statement. Based on the material uncontroverted facts of this case, we determine that the trial court properly granted summaiy judgment to Merit General Contractors, Inc.
IV. Should this court consider WSM’s bond claim?
In its reply brief, WSM maintains that it has an unresolved claim, based on statutoiy and case law, against the bond issued by Inland on the Dillon’s project.
In June 2004, WSM filed a bond claim and cross-claim against the mechanic’s hen bond number 406120-1 executed by Inland and Merit General Contractors, Inc. WSM requested that the trial court determine WSM’s rights in and to the bond and grant it a judgment for the amount of the mechanic’s hen, plus interests, fees, and costs, against the bond. In the September 17, 2007, journal entry, the trial court ruled that WSM’s “claim on the hen bond posted is DENIED.”
In its notice of appéal, National stated that it was appealing from the trial court’s “ruling on September 17,2007, in its Journal Entry sustaining the Motion for Summary Judgment filed by Merit General Contractors, Inc., on March 30, 2006, to the Kansas Court of Appeals.”
In its appellant’s brief filed with this court, WSM made no argument concerning its bond claim. Instead, the bond claim issue has surfaced for the first time on appeal in WSM’s reply brief. After Merit General Contractors, Inc., received WSM’s reply brief, it moved to strike the reply brief or, alternatively, to file a responsive brief. Merit General Contractors, Inc., argued that WSM’s bond claim had not been raised in its initial appellant’s brief and also that Inland had not been named as a party to this appeal. This court denied Merit General Contractors, Inc.’s motion to strike WSM’s reply brief but advised the parties that the reply brief would “only be considered to rebut new material contained in [Merit’s] brief.” See Supreme Court Rule 6.05 (2008 Kan. Ct. R. Annot. 43). This court further stated that “[t]o the extent [WSM’s] reply brief seeks to add additional issues, or re-argue issues already contained its opening brief, such arguments will not be considered.”
It is well established that new issues raised in a reply brief are not properly before this court. This practice violates Supreme Court Rule 6.05 and also denies an appellee the opportunity to respond to such issues. See Ortiz v. Biscanin, 34 Kan. App. 2d 445, 122 P.3d 365 (2004); Cessna Aircraft Co. v. Metropolitan Topeka Airport Authority, 23 Kan. App. 2d 1038, 1044-45, 940 P.2d 84 (1997); In re Marriage of Powell, 13 Kan. App. 2d 174, 177, 766 P.2d 827 (1988). Because the bond claim issue was not addressed in WSM’s initial brief, we decline to address WSM’s argument.
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Pierron, J.:
Tyler David Holm appeals his misdemeanor convictions for leaving the scene of an accident and failure to report an accident. He argues there was insufficient evidence to support the convictions. We reverse and remand.
In December 2007, the State charged Holm with one count each of leaving the scene of an accident, pursuant to K.S.A. 8-1603 (a class C misdemeanor), failure to report an accident, pursuant to K.S.A. 2008 Supp. 8-1606 (a class A misdemeanor), and no liability insurance, pursuant to K.S.A. 2008 Supp. 40-3104 (a class B misdemeanor).
According to the trial testimony of Shawnee County Sheriffs Deputy Craig Cochran, these charges arose around 2:20 a.m. on November 9, 2007, when he received a dispatch to investigate a possible vehicle accident. The Sheriff s Department received a report after two passing motorists observed a single-vehicle accident at the 6500 block of SW 69th Street in Shawnee County. Upon arrival at the scene, Cochran observed a GMC Safari van in the south ditch rolled over onto its hood. No driver was present at the scene. Out of concern for the drivers’ safety, Cochran waited at the scene for more than an hour, followed footprints leading from the van, and called the Topeka Police Department helicopter to search for the driver.
From the license plate, Cochran was able to ascertain that Holm was the van’s owner. Sheriff s deputies attempted to contact Holm both at the scene and the following day but were unsuccessful. Holm did not return the deputies’ calls until 12:15 a.m. on November 10, 2007, more than 22 hours after the initial accident report.
In an undated voluntaiy statement later provided to deputies and subsequently introduced at trial, Holm admitted he was the driver and he had “swerved to miss a deer and crashed [his] van.” He further stated he had failed to report the accident because his phone was not working. At trial, Holm affirmed these admissions.
A bench trial was held on January 22, 2008. Holm presented proof of his liability insurance, and the district court dismissed the charge of no liability insurance. The court then found Holm guilty of leaving the scene of an accident and failure to report and imposed a $250 fine for each conviction. Despite Holm’s conviction at a bench trial, the abstracts of his convictions indicated that he pled guilty to both charges.
As a result of the errors in the abstracts, Holm filed a motion to withdraw his plea in April 2008. At a motions hearing in July 2008, Holm withdrew this motion and moved the district court to enter an order allowing him to appeal out of time pursuant to State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). The court granted him leave to file a late appeal because he proceeded pro se and the trial transcript demonstrated that he was never apprised of his right to appeal. The errors in the abstracts were corrected by a September 30, 2008, nunc pro tunc order, which evidenced that Holm was convicted by trial and not guilty pleas. After the court granted Holm’s motion to appeal out of time, he filed a notice of appeal, challenging his conviction and sentence.
On appeal, Holm argues there was insufficient evidence to sustain his convictions for leaving the scene of an automobile accident, pursuant to K.S.A. 8-1603, and failure to report an automobile accident, pursuant to K.S.A. 2008 Supp. 8-1606. When a criminal defendant challenges the sufficiency of the evidence, “the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citations omitted.]” State v. Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 (2007). A conviction of even the gravest offense maybe proven by circumstantial evidence. State v. Garcia, 285 Kan. 1, 22, 169 P.3d 1069 (2007).
Holm’s sufficiency argument also requires us to interpret the statutory requirements in K.S.A. 8-1603, K.S.A. 8-1604, and K.S.A. 2008 Supp. 8-1606. Interpretation of a statute is a question of law over which this court exercises unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). This intent should be ascertained first through the statute’s language while “giving ordinary words their ordinary meaning. [Citation omitted.]” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). If a statute is plain and unambiguous, a court should not speculate as to the legislative intent behind it and add meaning “not readily found in it. . . . It is only if the statute’s language or text is unclear or ambiguous that we move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislature’s intent.” In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007).
Within the criminal context, statutes must be strictly construed in favor of the accused. Any reasonable doubt as to the meaning of the statute is decided in favor of the accused. Nonetheless, this rule of strict construction is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Paul, 285 Kan. 658, 662, 175 P.3d 840 (2008).
Holm’s first argument on appeal is that there was insufficient evidence to sustain his conviction for leaving the scene of an accident. K.S.A. 8-1603 reads in pertinent part:
“The driver of any vehicle involved in an accident resulting only in damage to a vehicle or other property which is driven or attended by any person shall immediately stop such vehicle at the scene of such accident, or as close thereto as possible, but shall forthwith return to and in every event shall remain at the scene of such accident until he or she has fulfilled the requirements of K.S.A. 8-1604. . . . Any person failing to stop or comply with said requirements under such circumstances shall be guilty of a misdemeanor and, upon conviction, shall be punished as provided in K.S.A. 8-2116.” (Emphasis added.)
In order to avoid a violation of K.S.A. 8-1603, the driver of the vehicle must comply with the reporting requirements in K.S.A. 8-1604.
“(a) The driver of any vehicle involved in an accident resulting in injury to or death of any person, or damage to any vehicle or other property which is driven or attended by any person, shall give such person’s name, address and the registration number of the vehicle such person is driving, and upon request shall exhibit such person’s license or permit to drive, the name of the company with which there is in effect a policy of motor vehicle liability insurance covering the vehicle involved in the accident and the policy number of such policy to any person injured in such accident or to the driver or occupant of or person attending any vehicle or other property damaged in such accident, and shall give such information and upon request exhibit such license or permit and the name of the insurer and policy number, to any police officer at the scene of the accident or who is investigating the accident and shall render to any person injured in such accident reasonable assistance, including the carrying, or the making of arrangements for the carrying of such person to a physician, surgeon or hospital for medical or surgical treatment if it is apparent that such treatment is necessaiy, or if such carrying is requested by the injured person.
“(b) In the event that none of the persons specified are in condition to receive the information to which they otherwise would be entitled under subsection (a) of this section, and no police officer is present, the driver of any vehicle involved in such accident after fulfilling all other requirements of K.S.A. 8-1602, and amendments thereto, and subsection (a) of this section, insofar as possible on such person’s part to be performed, shall forthwith report such accident to the nearest office of a duly authorized police authority and submit thereto the information specified in subsection (a) of this section.”
K.S.A. 8-1602(a) reads as follows:
“(a) The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident, or as close thereto as possible, but shall then forthwith return to and in every event shall remain at the scene of the accident until he or she has fulfilled the requirements of K.S.A. 8-1604. Every such stop shall be made without obstructing traffic more than is necessary.”
A reading of these statutes appears to require remaining at the scene of a noninjury accident only if the property damaged by the damaging driver is attended by another person. Therefore, a single-car, noninjury accident does not require remaining at the scene unless the property of some other person is damaged.
Holm’s conviction for failure to report an accident is also unsustainable. K.S.A. 2008 Supp. 8-1606 provides three alternative requirements for reporting an accident to law enforcement officials. Only the first of these is relevant for our purposes and provides:
“The driver of a vehicle involved in an accident resulting in injuiy to, great bodily harm to or death of any person or total damage to all property to an apparent extent of $1,000 or more shall give notice immediately of such accident, by the quickest means of communication, to the nearest office of a duly authorized police authority.” K.S.A. 2008 Supp. 8-1606(a).
K.S.A. 2008 Supp. 8-1606 only requires reporting requirements for noninjury property accidents if there is at least $1,000 iri property damage. In construing K.S.A. 2008 Supp. 8-1606 in the light most favorable to the defendant, as we are required to do, Holm’s conviction cannot stand. K.S.A. 2008 Supp. 8-1606 fails to criminalize the failure to report accidents with property damage less than $1,000. The State failed to introduce evidence to document an apparent $1,000 in damage to Holm’s van or the ditch where it landed, although such damage may have occurred. As a result, there was insufficient evidence to support Holm’s conviction for failure to report.
Reversed and remanded. | [
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The opinion of the court was delivered by
Johnston, J.:
This is a proceeding in error brought to reverse an order of the district court of Wabaunsee county, setting aside a verdict and granting a new trial. The plaintiffs in error, who were plaintiffs below, brought the action to recover the south half of the southwest quarter of section twenty-four, township eleven, range twelve east, being an eighty-acre tract of land situated in Wabaunsee county. The trial, which was had with a jury, at the October term, 1884, resulted in a verdict in favor of the plaintiffs. The defendant filed a motion for a new trial, alleging as reasons therefor every statutory ground for which a new trial may be had. This motion was heard on December 23,1884, and a new trial was granted; and this is the ruling complained of.
We cannot say that the court erred in its ruling. It is seldom that a case is presented which would justify the court in reversing an order granting a new trial. The trial court is invested with a large discretion in # t ° disposing of applications for a new trial, and it is generally held that, to warrant a reversal, it requires a clearer showing of an abuse of discretion in granting a new trial than in refusing one. It was recently said in this court, that such an order will not be reversed unless the court “can see beyond all reasonable doubt that the trial eourt has manifestly and materially erred with reference to some pure, simple and unmixed question of law, and that except for such error the ruling of the trial court would not have been made as it was made, and that it ought not to have been so made.” (City of Sedan v. Church, 30 Kas. 190. See also Brown v. A. T. & S. F. Rld. Co., 29 Kas. 186, and cases there cited.) The particular ground or grounds upon which the court places its decision cannot be learned from the record, as it is recited that the application was sustained for the reasons stated in the motion. Exceptions were taken by the defendant, during the trial, to the rulings of the court on the admission of evidence, and in charging the jury. Among the reasons stated why a new trial should be granted was, the misconduct of the jury, and irregularity in the proceedings of the court and j ury, by which the defendant was prevented from having a fair trial. Affidavits were filed in support of these allegations. In one affidavit it is shown that, after the case was submitted to the jury, and the jury had retired to the jury room in charge of the bailiff, a member of the jury applied and was allowed to go from the jury room to the water closet; and when he returned the jury had left the room, and gone to the court house; and when the juror arrived there, he found that court had adjourned for supper; and he was therefore not present when the jury was admonished and separated, and was separated from the jury for about two hours without any charge or admonition from the court.
The plaintiffs were the surviving heirs of John Campbell, deceased, and one of the matters in controversy was with reference to a marriage contract said to have been made between John Campbell and the defendant. The plaintiffs claim that the defendant conveyed the land in controversy to John Campbell, and that the title was in him at the time of his death, but that the deed was never recorded, and numerous acts and statements of Campbell and the defendant concerning the land were given in testimony with a view of showing that the land was actually conveyed. On the other hand, Mrs. Hindman denies that she ever deeded the land to Campbell, and she claims that the only transaction between Campbell and herself was, that in 1878 she leased the land to him for a time, and in the same year a marriage contract was made between them, whereby it was agreed that this land should stand as security for the fulfillment of her promise, and a tract which he owned as security for compliance on his part, which contract was afterward destroyed by mutual consent; and that whatever was done by Campbell, or under his direction, on the premises, was done under the lease and in anticipation of their future marriage, under the marriage contract. Under the testimony and the instructions, the marriage contract became a very important feature of the case. On the motion for a new trial, it was shown that one of the jurors who sat in the case had had several conversations with Campbell concerning his relations with the defendant, one of them on the day he died, in which Campbell had stated that he had had trouble with Mrs. Hind-man, and although engaged to marry, he would never marry her. Campbell asked the juror’s advice as to how he might get rid of Mrs. Hindman, and the juror advised him in that respect. He also told the juror of the marriage contract, stating what its terms were. After several witnesses had given in their testimony, and a recess had been taken by the court, the juror told the trial judge of his knowledge, and that he knew more about the marriage contract than the witnesses did; but the trial proceeded, and the juror continued to sit in the case. This juror was probably disqualified to try the case. The fact that the juror first named separated from his fellows after the case had been submitted, and had remained away from them for two hours without having been admonished by the court, may not in itself have been sufficient to set aside the verdict; but when it is considered in connection with the conduct of the second juror, and with the action of the court in allowing him to continue in the case until the verdict was rendered, and the other rulings made and excepted to, sufficient grounds for granting a new trial were probably shown. At least, there is enough to prevent this court from reversing the order granting a new trial. In the new trial to be had, both parties can have an opportunity to try the case on its merits before a jury that will take the testimony as given by the witnesses, and who will not assume to know the facts better than the witnesses who relate them.
Under the rules established by the decisions of this court, we cannot say that there was error in the ruling of the district court granting a new trial, and hence its order and judgment will be affirmed.
All the Justices concurring. | [
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Per Curiam:
The defendant, Robert Dorsey, was charged upon a criminal information with stealing certain United States treasury notes and certain national bank notes of the aggregate value of $30, and the property of Charles Carr. He was tried upon this charge, and convicted, and was sentenced to imprisonment in the penitentiary for the term of two years; and from this sentence he now appeals to this court. He claims that the larceny was committed by means of his taking the money from the pocket of said Charles Carr, and that the conviction was therefore erroneous, and this he claims upon the theory that he was charged, tried and convicted for larceny generally, under § 78 of the act relating to crimes and punish ments; while he should have been, and could only be, tried or convicted for pocket-picking, under chapter 105 of the Laws of 1886, relating to pickpockets. The question, however, which is attempted to be presented to this court is not in the case, for neither the evidence nor the instructions refused by the trial court have been properly preserved in the record; nor is there anything else in the record which shows the manner in which the money was stolen. The judgment of the court below will be affirmed, upon the authority of the case of The State v. McClintock, ante, p.40. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought to recover the possession of eighty acres of land in Shawnee county. The defendants alleged in their answer that the land was subject to taxation for the year 1873; that the same was sold at a tax sale, May 5, 1874, for the delinquent taxes of 1873, to B. J. Ricker; that on May 1, 1877, Ricker assigned the tax-sale certificate to Josephine B. Thomas; that on May 8, 1877, the laud not having been redeemed, Josephine B. Thomas obtained a tax deed thereon, which was recorded May 9, 1877; that subsequently, having been advised that the tax deed was void on its face, she obtained another tax deed, on October 6, 1880, which was recorded October 9, 1880; that on December 20, 1880, Josephine B. Thomas, and her husband, Jonathan Thomas, conveyed the land to the defendants; that the tax deed of October 6,1880, had become absolute under § 143, chapter 107, Comp. Laws of 1885, before this action was commenced, as more than two years had elapsed after the recording of this second tax deed. The plaintiff in reply alleged various facts concerning the tax sales, which, if proved, are sufficient to avoid the tax deeds, if such defenses are not barred by the statute of limitation. The defendants demurred generally to this reply. The demurrer was sustained by the court, and of this ruling the plaintiff complains.
The question in this case arises over the construction of §1, chapter 40, Laws of 1879, which amends §143, chapter 34, Laws of 1876. The last tax deed, dated October 6,1880, was put on record after the amendment of 1879 went into effect. This action was commenced October 27, 1884, nearly four years after the last tax deed was put on record, but less than five years from the recoi’ding of the same. Under the provisions of §141, chapter 107, Comp. Laws of 1885, the owner of the fee out of possession may commence his action against the tax purchaser at any time within five years from the time of the recording of the tax deed. If said §141 has not been repealed or limited by said §143, chapter 107, Comp. Laws of 1885, plaintiff had five years from October 9, 1880, in which to commence his action. On the part of the plaintiff it is contended that §1, chapter 40, Laws of 1879, which appears in the Compiled Laws of 1885 as §143, chapter 107, does not bar this action.
On the part of the defendants it is claimed that said § 143, chapter 107, Comp. .Laws of Í885, changes or limits §141 of said chapter, in cases of this kind, to two years only.
There are no negative prohibitory words in said §143. If possible, the two sections should'be harmonized. All statues in pari materia are to be read and construed together, as if they formed parts of the same statute and were enacted at the same time. With our view of said § 143, it is not inconsistent with § 141. We do not think the legislature intended, by the adoption of said § 143, to shorten the time within which the original owner could maintain an action to set aside tax deeds upon land owned by him. Under a different construction, if the county clerk issued a defective deed at first, and the tax purchaser then procured a second deed regular upon its face, the original owner would be deprived of one, two, three or more years of the time which the five-year statute gives him in which to attack the possession or title of the tax purchaser. We think the legislature intended to extend rather than to limit the time of limitation. Under §141 the land-owner has five years. If a defective or irregular tax deed has been recorded, and no subsequent tax deed is taken out, the owner may commence his action against the tax purchaser at any time within five years; but if a second tax deed is taken out and recorded, he has also two years thereafter in which “to set aside any or all such tax deeds” upon his land. While it is true that the statute provides that all rights claimed by the tax-deed holder under prior tax deeds are waived and merged into the second or latest tax deed, such prior tax deeds may be to some extent a cloud upon the title, and the owner may desire to have a judicial determination thereof. So if four or more years have elapsed between the issuance and recording of the first tax deed and the issuance and recording of the second tax deed, the owner has two years after the last tax deed is recorded in which to bring his action to set aside the prior tax deed, as well, also, as the last tax deed. The words in the section are, that he has two years in which to set aside “ any and all tax deeds.” The statute, as we construe it, will read as follows:
“ In all cases where different or successive tax deeds upon the same sale shall be put on record by the satire party, or in interest therewith, it shall be deemed and held that all rights which might otherwise be claimed, [by the tax-deed holder, and not by the original owner,] under all or any tax deed, prior to the last one put on record, shall be deemed and held to be waived, [by the tax-deed holder, and not by the original owner,] and considered as merged in such last tax deed so put on record; and in all cases where several tax deeds shall be put on record by the same party, or in interest therewith, that the party claiming to own the same land may maintain an action for the recovery of the possession thereof, or to set aside any or all such tax deeds, [not merely the last one, but any or all, and without regard to the length of time which some of them may have been in existence,] at any time within two years from the taking effect of this act, [and as the words ‘not thereafter’ are omitted, the words ‘or at any time wdthin the limitation fixed by other statutes’ should be inserted,] and in any case of the recording of such tax deed or deeds hereafter, then within two years from the time of putting on record the last of such tax deeds, [ or at any time within the limitation fixed by other statutes.]” (Laws of 1879, ch. 40, §1; Comp. Laws of 1885, ch. 107, § 143.)
The construction here given permits § 143 to operate without repealing or limiting said § 141. This construction is also in accord with the decisions in Myers v. Coonradt, 28 Kas. 211; and Corbin v. Bronson, 28 id. 532.
The order and judgment of the superior court will be reversed, and the cause remanded with direction to overrule the demurrer filed to the reply.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Lydia A. Amick against the Kansas Farmers’ Mutual Fire Insurance Company, on a fire-insurance policy, to recover damaged alleged to have been sustained by fire. The case was tried before the court and a jury, and judgment was rendered in favor of the plaintiff and against the defendant for $1,326 and costs. The defendant brings the case to this court for review.
The fire occurred on December 27, 1883. The action was commenced on December 23,1884. The defendant demurred to the plaintiff’s petition on January 31,1885. The demurrer was overruled on June 6, 1885, and twenty days were given the defendant within which to file an answer. The defendant did not file any answer within that time, but on September 14,1885, without leave of the court and for the first time, filed an answer. This answer was stricken from the files on September 28, 1885; and on the same day the defendant, with leave of the court, filed another answer, setting forth substantially all that was set forth in the first answer, and more, too. On October 6, 1885, the trial was commenced. On October 7,1885, after the plaintiff had introduced the principal portion of her testimony, but before she had rested, the defendant asked leave of the court to amend its answer by setting up new matter, and what it claimed to be a new, independent and complete defense to the plaintiff’s action, but the court refused; and this refusal is the first ruling of the court below of which the defendant (plaintiff in error) now complains.
We do not think that the court below committed any error in making this ruling. Why the defendant did not set up this defense sooner .is not shown; nor is it shown whether the defendant had any reasonable grounds to believe that the defense was true. No affidavit concerning the matter was filed, nor was any other evidence in support of the defendant’s application submitted to the court. Of course, under §139 of the civil code, the court may in any case, in furtherance of justice, and on such terms as may be proper, permit a party to amend his pleadings by inserting other allegations material to the case, when such amendment does not change substantially the claim or defense; but the amendment, in any case and at any time, can be made only “ in furtherance of justice,” and it must be affirmatively shown that the amendment is in furtherance of justice. No such showing was made in the present case. The proposed amendment was that a city ordinance' prohibited all persons from putting a stove-pipe through the roof of a building, and that the plaintiff in this case violated such ordinance, and that the fire was caused by reason of such violation. Now if this were true, the defendant could have known it long before this action was commenced, and could have set it up in an answer as soon as the action was commenced. It is probable that the defendant knew, when the insurance policy was issued, just how the stove-pipe was arranged in this building, for the stove-pipe and the building were in the same condition before the insurance was effected as they were at the time when the fire occurred; and the defendant did unquestionably know, more than two weeks before the trial, just how the stove-pipe' was arranged in the building. In all probability the defendant could not have proved that the fire originated by reason of the stove-pipe’s running through the roof; but whatever it might have proved, still it is clear that the defendant might have known, by the exercise of reasonable diligence, at least twenty months before the trial, just what it knew with regard to this subject on the day of the trial. The trial court, in the exercise of its discretion, might, perhaps, upon proper terms, have permitted the amendment to be made; but still, under the circumstances of the case, we do not think that it committed any error in refusing the same.
The defendant, plaintiff in error, also claims that the judgment is excessive. It is useless to discuss this question. There was sufficient evidence to warrant the verdict of the jury, and their verdict as now presented to us must be held to be conclusive.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Marion county by the State of Kansas against C. F. Roberts as principal, and L. W. Hutchinson and others as sureties, upon a forfeited recognizance. The only disputed questions of fact at the trial were: First, was the amount of the recognizance $1,250, or was it only $1,200 ? Second, if it was only $1,200, when was it changed from a greater amount to that amount — before or after the recognizance was executed ? If the amount was $1,250 at the time the recognizance was executed, then the recognizance was void according to a decision heretofore made with reference thereto by this court, [Roberts v. The State, 34 Kas. 151;) for the district court had, previously to the execution of the recognizance, fixed the amount thereof at only $1,200. If the amount of the recognizance, however, was only $1,200 at the time the recognizance was executed, then the recognizance was valid.
The case was tried before the court and a jury, and the jury rendered a general verdict and made special findings as follows :
“We, the jury, impaneled and sworn in the above-entitled cause, do upon our oaths find for the defendants.”
“1. Who wrote the bond in the suit? A. Judge Peters.
“ 2. In what sum was the penalty of the bond as first written ? A. Twelve hundred and fifty dollars.
“3. Who changed such sum so first written? A. Don’t know.
“4. When was such change made — before or after it was signed by defendants? A. After.
“ 5. In what way was such sum in the bond changed ? State the words changed, and how the changes were made. A. The words ‘and fifty’ partially erased.
“6. Was the erasure of the words ‘and fifty’ in the bond sufficiently plain and marked to attract the attention of a person of ordinarily good eyesight and ordinary perceptive faculties, and to indicate to such person.that the words ‘and fifty ’ were intended to be erased ? A. No.”
The principal errors assigned are with reference to the instructions given by the court to the jury, but as to the most of them it is wholly immaterial whether they are correct or not. The jury found upon the evidence that the change in the recognizance was made after it was signed by the defendants; hence all instructions given by the court to the jury upon the theory that the change might have been made prior to the signing of the recognizance are wholly immaterial. As the recognizance when signed was for $1,250, it was and is void, whether it was ever afterward changed or not, and without reference to who changed it, or whether the change was made by the plaintiff or by any of its agents, or entirely by a stranger to the recognizance. (Roberts v. The State, 34 Kas. 151.)
There is one instruction, however, that requires some special comment. That instruction reads as follows:
“In this case the burden is upon the plaintiff to satisfactorily explain the alteration in the recognizance sued on in this action, as to the amount of the penalty therein named.”
As an abstract proposition of law, this instruction may be erroneous, (Neil v. Case, 25 Kas. 510;) but under the facts of this case we cannot say that it is. The plaintiff alleged in its petition that the recognizance was a twelve-hundred-dollar recognizance, and the defendants in their answer, which, was verified by affidavit, denied the same; hence it devolved upon the plaintiff to prove that the recognizance in suit was a $1,200 recognizance. The plaintiff introduced the recognizance in evidence. In all probability the recognizance did not show that it was a $1,200 recognizance, but on the contrary came nearer showing that it was a $1,250 recognizance. The county attorney, when he commenced this action, believed it to be a $1,250 recognizance, and alleged it to be such; and the county attorney who commenced this action was the same person w7ho was the county attorney when the recognizance was drawn up and executed. Afterward, and during the first trial of this case, it was disclosed that the court had authorized only a $1,200 recognizance; hence the plaintiff so amended its petition as to make it allege that the recognizance was for only $1,200, instead of for $1,250, as the original petition alleged. Now as the recognizance itself did not show that it was a $1,200 recognizance, but showed that it was formerly drawn up as a $1,250 recognizance, and that it was probably still a recognizance for that amount, it devolved upon the plaintiff to show that a change had been made in the recognizance prior to its execution, and that it was really and in fact only a $1,200 recognizance when it was executed. This is substantially what the court below charged. Of course if the recognizance had shown upon its face that it was a $1,200 recognizance, the instruction would have been erroneous; but we cannot say that such was the case. On the contrary, we are inclined to think that the recognizance always showed upon its face that it was in fact a $1,250 recognizance. If not, then it was so doubtful as to what it did show that the plaintiff had to show by extrinsic evidence what was intended by the parties when the recognizance was executed, and in this manner the plaintiff had to “ explain the alteration in the recognizance.” There was nothing on the face of the recognizance which showed that the recognizance was intended to be only a $1,200 recognizance, and nothing that tended to show it except the partial erasure of the words “& fifty.” If no extrinsic evidence had been introduced tending to show that these words were intended to be erased, and that they were attempted to be erased before the recognizance was signed, the jury should probably have found that the recognizance was always a $1,250 recognizance. The plaintiff attempted to show by extrinsic evidence that the partial erasure of the words “& fifty” was intended as an erasure, and that the same was done prior to the signing of the ■ recognizance, but it failed. The question of erasure was for the jury, and under the facts of the case we cannot say that the said instruction was erroneous.
The judgment of the court helow will be affirmed.
All the Justices concurring. | [
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Per Curiam:
.The cause of action set forth in the plaintiff’s petition is a judgment rendered in the district court of Arapahoe county, Colorado. “The only defense set forth in the defendant’s answer is, that the judgment which constitutes the basis of the plaintiff’s action was founded upon another judgment, which was founded upon a promissory note which was indorsed by the defendant without consideration; ” or, to state the defense in other words, it is this: A promissory note constitutes the basis and foundation of all the subsequent proceeds ings constituting the plaintiff’s cause of action, and that note was merely indorsed by the defendant, and that without consideration. The first question naturally presenting itself is this: Why did not the defendant set up his defense in the original action brought upon this promissory note in the United States circuit court for the district of Kansas ? Has he not failed to exercise proper diligence ? His answer to the plaintiff’s petition is sufficiently set forth in the original opinion filed in this ease, and need not be repeated. It was held in that opinion, but without elaborate argument, that the defendant did not set forth facts sufficient in his answer in this case to excuse his failure in not setting up his defense in one of the foregoing actions. As the defendant has now filed a motion for a rehearing, it will be proper to add a few words. It is not stated in the defendant’s answer, nor is it anywhere shown, that the said note was a negotiable instrument, and if it was a negotiable instrument, and if it was payable to order, then there is a failure to make any statement or showing that it was ever indorsed by the payee or the holder thereof; nor is it stated or shown when it became due, or that it was transferred before due. The defendant was not the payee of the note, and was never the owner or the holder thereof, and of course could not indorse the note as a payee or holder. He probably indorsed it as a guarantor. Now if the note was not a negotiable promissory noté, or it was negotiable and payable to the payee or order and not indorsed by the payee, or if it was transferred after due, the defendant could have set up his defense in the first action brought upon it, whoever might have held it, or whoever might have brought the action upon it. The failure of the defendant to allege the facts concerning these matters must be construed against him, and as showing that he was negligent in not setting up his defense in the former actions. The defendant uses the word “indorse” when he speaks of his own indorsement on the note, but he uses the words “assignment” and “assignee” when he speaks of the transfer of the note from S. P. Snow, the payee thereof, to Lucius Snow. Neither is it stated in the answer or shown that the defendant exercised any diligenee to ascertain whether the note was a negotiable promissory note, or not; or whether it was payable to order, or not; or whether it was indorsed by the payee, or not; or whether it appeared to be transferred before due, or not; or whether Lucius Snow was in fact a bona fide holder of the note for value, or not. Indeed, the only diligence alleged by the defendant in his answer is, that he elicited from his own attorneys the opinion or advice “that because of the assignment of said note to a third party, he could not plead the want of consideration.” But what investigation his attorneys made, or what fact they were acquainted with, is not stated or shown. Now taking it as true that the defendant indorsed the note without consideration, and that the payee thereof, S. P. Snow, assigned if to Lucius Snow without consideration, and for no other reason than that it might appear to be in the hands of a bona fide holder, and then that Lucius Snow, who was not the real party in interest, and for the reason that he was not the real party in interest, wrongfully and fraudulently obtained a judgment upon the note in the United States circuit court for the district of Kansas, and that he then for the same reason wrongfully and fraudulently obtained a second judgment upon the first judgment in the district court of Arapahoe county, Colorado, still we think the defendant cannot interpose his defense of a want of consideration for his indorsement of the aforesaid note in the present action, for by his failure to interpose it in the former actions he has lost the right to interpose it anywhere. No fraud is alleged except the aforesaid assignment of the note by S. P. Snow to Lucius Snow, and afterward and by reason of such assignment obtaining the two judgments aforesaid in favor of Lucius Snow, who, it is alleged, had no real interest in the note. From anything stated or shown, the judgments were obtained fairly and regularly in every other respect. Again we would announce the rule of law, that “no defense can be set up against a judgment which might with proper diligence have been interposed in the action in which the judgment was rendered.” Among the cases having some application to this case, we would cite the following: Christmas v. Russell, 5 Wall. 290, 303; Maxwell v. Stewart, 22 id. 77; Hawes v. Hathaway, 14 Mass. 233; Zellerbach v. Allenberg, 7 Pac. Rep. 908.
The motion for the rehearing will be overruled. | [
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Per Curiam:
The questions in this case from the same court are similar to those in the foregoing case, and under that authority the order of the district court will be reversed. | [
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Per Curiam:
In this case, Catherine Hindman alleged that she was the equitable owner of aud in the possession of the undivided five-eighths of the north half of the northwest quarter of section twenty-four, township eleven, range twelve, in Wabaunsee county; that in January, 1881, she employed John Campbell, as her agent, to purchase and procure for her a deed to the land from Eugene Bourassa, who was at that time the owner thereof; that she delivered to Campbell four hundred dollars, with which to make the purchase; that, in pursuance of his employment, Campbell purchased the land, but on February 4, 1881, obtained a deed in bis own name from Eugene Bourassa, in violation of his trust; that afterward, with her money he purchased a tax-sale certificate upon the property; that after his death a tax deed thereon was executed in his name; that the tax deed was recorded September 28,1882; that, subsequently, Mary A. Murphy and Tryphena Whittaker, the heirs of John Campbell, executed and delivered to Mary C. Beaubien a deed of the premises; that all of the parties, at the time of these transactions, well knew that the plaintiff was the equitable owner of and in the exclusive possession of the land, and were well acquainted with her rights and equities therein. Plaintiff prayed that her title might be established to the property; that the defendants holding the legal title to the same might be declared trustees for her, and that her title to the land be quieted as against them. The •case was submitted to the trial court without a jury. The ■court, after hearing the evidence and the arguments of counsel, found generally that Catharine Hindman was the equitable •owner of the land in dispute, and granted the prayer of her petition’. The defendants excepted, and bring the case here.
It is contended in their behalf that the finding and judgment of the court are clearly against the weight of the evidence, and for that reason that the judgment should be reversed. It has always been held by this court, that a finding of fact by the court is equivalent to a verdict by a jury; and further, that this court will not disturb the finding if there is sufficient evidence to justify it; and this is the case, although the finding of the court be contrary to the judgment of the appellate court. (Ruth v. Ford, 9 Kas. 17; Walker v. Eagle Mfg. Co., 8 id. 397; K. P. Rly. Co. v. Kunkel, 17 id. 145; Beal v. Codding, 32 id. 107.)
An examination of the whole record convinces us that there was sufficient evidence before the trial court to sustain its finding, and however much we may be dissatisfied with the •conclusion of that court, we cannot reverse the finding or j udgment.
Again, it is urged that the court committed error in not granting partition, as prayed for in the supplemental answers. It is said that the supplemental answers were not replied to, and therefore that they were taken as confessed. The record does not give the dates of the filings of the various pleadings, but after all of the answers are set forth therein, the record shows the plaintiff below filed a reply to the answer of the defendants and also to the answer of the guardian ad litem; so it seems that a reply was filed after all of the answers. In any event, we do not think it clearly appears from the motion for a new trial that the question of partition was suggested to the court after its general finding had been made. Error is never presumed, but it must be affirmatively shown; and this court — where the pleadings support the judgment — will not review an alleged error of the trial court, if -the attention of that court has not been called thereto. Therefore, the judgment of the district court will be affirmed. | [
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Opinion by
Holt, C.:
The petition filed by the defendant in error, plaintiff below, is in the usual form for services rendered; it states that plaintiff was in attendance upon the district court for five days at defendants’ request; that he was compelled to travel thirty-two miles in going to and returning from court. The defendants demurred to the petition, because it did not state facts sufficient to constitute a cause of action. The demurrer was overruled by the court, and judgment rendered for plaintiff for the amount claimed in his petition. Nothing was stated therein concerning fees, though the claim was for the sum the fees would be for attendance at court and mileage, as provided by statute. Both parties agree that there is only one question in this case, and that is, whether a defendant tried for a felony and acquitted, is liable to his own witnesses. If he is, then this judgment should be affirmed; if not, it should be reversed.
Plaintiffs in error suggest that there are quite a number of other claims similar to this one, and as it is a question of some public importance, we give it more careful consideration than the sum involved may at first seem to justify. The plaintiffs in error, in their brief, say :
“The constitution guarantees to every person accused of crime the right to meet the witness face to face, and to have compulsory process to compel the attendance of witnesses in his behalf. By this compulsory process the state in its sovereign capacity commands the witness to appear and testify, not merely for the sake of the plaintiff or defendant, but for the investigation and adjudication of right. The service which the witness thus renders is merely the discharge of a public duty which he owes to the state; and, unless some statutory provision is made for his compensation, he must-render such service, gratuitously.”
They further say, that costs and fees are regulated exclusively by statute, and are unknown at common law, and because there is no statute compelling a defendant to pay costs when he is acquitted, therefore the defendants are not liable in this action. This court has held “that costs are unknown at common law, and are only given by statutory direction.” (The State v. Campbell, 19 Kas. 481.) It is well enough, therefore, for us to understand what is meant'by costs: they are the statutory allowance to a party to an action for his expenses in conducting such action; they have reference only to the parties, and the amounts paid or presumed to have beeu paid by the party seeking to recover such expenses. The basis of the claim in this causéis not founded upon any claim for costs in the action of the state of Kansas against these defendants; but the question is whether the plaintiff, who was requested to appear in court by the defendants, as alleged in his petition, can recover of them for his services. Ordinarily, of course, at common law he could, for services rendered at their request.
We wish, however, to decide this question on the theory that the plaintiff was regularly subpenaed to appear in court as a witness for the defendants, and not at their personal request, as might fairly be inferred from the petition. If the defendants’ theory is correct, we have this singular construction f the law: when a defendant personally requests a party to o appear in court as a witness in his behalf, he will be liable to such witness for services rendered; but when he requests him to appear through the proper officers of the court, then the fact that the officers brought his witness into court would relieve him of such liability. We cannot believe there is any such distinction.
We agree with the defendants, that the state in the exercise of its sovereignty may require certain services of its citizens without compensation; and this state does to this day bring its witnesses into court in certain causes where it is a party, without becoming liable to them in any event for witness fees. It is said that it is as much the duty and interest of the state to see to it that an innocent man charged with crime is acquitted, as it is to convict and punish a criminal; and therefore it is contended that in cases like the one we are now considering, because the state is relieved of the burden of paying costs, the defendant ought not to pay his own witnesses. An argument might be fairly drawn from the above premises that it would be proper for the state to pay the witness of a defendant who has been falsely charged with, and unjustly prosecuted for an alleged crime. Such an argument would be properly addressed to the legislature, but it has no place in the courts.
Our statute relieves the state in this case of all liability in express terms. It would not be liable, probably, if there were no such statutory provision; but it is insisted, because the defendants cannot recover their costs of the state, the witnesses for the defendants ought not to recover of them; or, in other words, if for any reason B could not recover of A for damages A had inflicted upon him, therefore B would not be liable to C, though B had called upon him for aid against A. This is neither good law nor logic. While the state is equally interested in the acquittal of the innocent and in the conviction of the guilty, the loug-established practice in the courts does not carry out the theory contended for. The state employs and pays an attorney to select the witnesses for the state, and to prosecute the action, while the defendant employs his own counsel and calls the witnesses in his own behalf. The defendant has a personal interest in his own behalf, differing from that of other citizens of the state. He is given by the law an ample opportunity to protect himself, and it is his province, prompted by self-interest, to do so. So he calls upon those whom he believes may help him; they do so at his request; he should pay them for their services.
The provision of our constitution guaranteeing compulsory process to every one charged with crime does not extend to the payment of the fees of the-witnesses for the defendant, nor does it relieve him of his liability to them. (Carpenter v. The People, 3 Gilman, 147.)
The state by this provision gives every facility for a fair and impartial trial to all citizens alike, high and low, rich and poor; and in order to give a defendant the full benefit thereof, provides by a statute in harmony with it, that inability to pay his fees in advance shall not impair his means of defense. This clause of our constitution has no more application to paying the defendant’s witnesses than in selecting them. After the defendant has filed his precipe for witnesses, the state guarantees to the defendant the use of all its powers in bringing them into court; this is its scope and effect, and nothing more.
Rut; in our view of the case, we need not decide what may be the duties of the citizen to the state, nor of the state to one of its citizens who is called as a witness into its courts, nor even to one who has been charged with crime, and tried, and acquitted. It is the question of liability of one party to another — these defendants to their witness whom they called to their aid. It does not change the relations, duties or obligations of these parties, so far as the liability of these defendants to plaintiff for compensation is concerned, because he upon whom they called, in order to render the aid desired, came into court as a witness in their behalf; nor does it affect that liability because the state, in defendants’ interest, could have made that call imperative. We believe that the rule, that he who requires and receives services from another should pay him therefor, applies to this action, and should govern our decision.
We presume it will be conceded, that a witness would be liable to the defendant for any damages occasioned by his failure to attend court when regularly subpenaed. Ordinarily it would be fair to infer that, because of this contingent liability of the witness to the defendant if he failed to perform certain services, there ought on the other hand to be some compensation if he did perform them.
We have carefully examined all the authorities cited in the briefs of both parties. Many of them relate to costs or fees in civil actions; others to the taxation of costs in actions pending; while others were decided with reference to the statutes of the state where the decisions were rendered. The only authority we find in point is The State v. Whithed, 3 Murphey (N.C.), 223. The point decided was submitted in the original case, not in au action by the witness against the defendant. It was this: Where a defendant had been tried and acquitted, would he be liable for costs, and if so, what costs ? The court, in deciding the case, said:
“ The defendant is bound to pay his own costs, for he incurs them by calling on those whose services he thinks he needs, and he must pay them lor labor done at his request.”
In that state, as in this, there was no statute concerning the liability of the defendant to his own witnesses, when he had been charged with a crime and acquitted.
We believe the judgment of the court below should be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The defendant in error brought an action in a justice's court, in Barton county, against Shields & Shields, and caused the plaintiff in error to be garnished. On January 3,1883, the plaintiff in error answered as follows:
“Ques.: At the time you were served with the notice of garnishment, in the above-entitled action, had you then, or had you since that time, or have you now in your possession or under your control, any property, moneys or credits of the above-named defendants ?
“Ans.: I am indebted to James A. Shields in about the sum of two hundred dollars, on conditions attached hereto: The conditions upon which I owe James A. Shields two hundred dollars are as follows: About the 23d day of December, 1882, I bought of James A. Shields the N.W.|- of sec. 34, tp.17, range 14 west, for $1,000. There is a mortgage of $700, and other claims against it. I was to assume the mortgage of $700, and was to advance to him the money to pay the taxes and other claims against the farm, and was to pay him $50 in money, besides clearing the place up. James A. Shields and wife have made a deed to me for the land, and I have accepted the deed as all right. Then the deed was left in the hands of S. S. Shields till I should give him my note for balance found due, and $50 in cash I was to pay Janies A. Shields. The $50 in cash was to be part of $300, and I was to give my note for balance of the $300, after paying the place clear and paying $50 in cash. I am now, and have been ready to perform my contract fully, and would have done so before garnishment in these cases, and but for small-pox. S. S. Shields and I agreed to wait a few days. This is my answer in case of John Murdy v. James A. Shields, and the case of John Murdy v. James A. Shields and S. S. Shields.
D. W. Linder.”
Upon said answer, the justice of the peace made the following order:
“D, W. Linder, Garnishee: You are ordered forthwith to pay the undersigned, A. J. Buckland, justice of the peace of said township, in said county, the sum of fifty dollars, being the amount due by you to said defendant James A. Shields, as disclosed by your answer in garnishment filed in the above-entitled action; and hereof fail not, at your .peril.
“Given under my hand, this 9th day of January, 1883.
A. J. Buckland, Justice of the Peace.”
Afterward, defendant in error duly obtained a judgment against said Shields and Shields for the sum of $--, the plaintiff in error refused to comply with the order of the justice, and paid no part of the said sum of $50 so ordered to be paid. This actiou was brought by the defendant in error to recover from the plaintiff in error the amount of said judgment so recovered by him against Shields and Shields. At the trial in the district court, the plaintiff in error insisted that the conditions under which he became indebted as he alleged in his answer, had not been completed or complied with between himself and Shields, and that he was not liable on his answer. The defendant was called as a witness on his own behalf, and the following questions were asked him, to all of which questions the plaintiff objected, and the objection was sustained by the court; which ruling plaintiff in error duly excepted to, and now insists that in said ruling the court erred:
“You may state whether or not, on the 27th day of December, 1882, James A. Shields, by himself or his agent, executed or tendered a deed for the northeast quarter of 34-14-7.
“If you were indebted to James A. Shields, or either of them, at the time you were served or answered in garnishment, in any manner whatsoever, you may state what that was.
“You may tell the jury when you say in your answer that you are indebted to James A. Shields in the sum of $200 in the conditions of some deed, what deed you have reference to.
“I will ask you, Mr. Linder, to tell the jury whether or not the indebtedness, if any existed, or did exist, from you to James A. Shields prior to the service of this garnishment on you.
“You may tell the jury whether or not, at the time you were served with this process of garnishment, you had examined the records of the land between you, and whether you had completed the contract at that time.
“ You may tell the jury whether or not this contract between you and Mr. Shields was a written or oral contract.
“At the time you were served with notice of garnishment in the above-entitled action had you then, or had you since that time, or have you now in your control or in your possession, any money or credits of the above-named defendants ? ”
The plaintiff’s bill of particulars in this action shows substantially the following: First, the action between plaintiff and Shields; the affidavit and summons in garnishment; the answer of said garnishee, and upon said answer .the order of the justice, directing him to pay into court the amount the justice found due; second, the refusal of the defendant to comply with the order; the nature and character of the indebtedness between the defendant and Shields and Shields, and the prayer for judgment. This made an issue upon the entire garnishment proceedings, and to maintain the issue on the part of the plaintiff it would only be necessary for him to show such answer and order; but the defendant would not be concluded from showing that the answer was made under a misapprehension of the facts, or that the answer had not been correctly made; but he might show in addition thereto whether he was indebted to Shields, and if so, when that indebtedness was due; and whether conditional or absolute, and the entire transaction between himself and Shields. In fact, it might be as full in this inquiry as it might have been in his former answer. The plaintiff by his proceedings in garnishment could obtain no greater right to compel payment by defendant than Shields had. It was simply an assignment of whatever was due by the defendant to Shields. The plaintiff stood in the place of Shields, and could enforce payment only as Shields might do. (Phelps v. A.T. & S. F. Rld. Co., 28 Kas. 165; Board of Education v. Scoville, 13 id. 32.)
The evidence excluded by the court on the part of the defendant was competent, and its exclusion was error. The defendant was attempting to show the transaction between himself and Shields, and it seems that whatever indebtedness there was grew out of a purchase by the defendant of the tract of land from Shields, and upon the completion of that transaction he would be indebted to Shields at least in the sum of $50; and the defendant’s evidence excluded tended to show that this transaction had never been completed. The deed to the premises had never been tendered to or received by the defendant. Now before Shields could have maintained an action on his supposed indebtedness, he would have had to show a completed transaction, and that the deed had been delivered and a perfect title conveyed, subject to whatever liens there were, and showing the balance due, or the tender of a deed showing title. If this right was transferred to the plaintiff, then before he could recover he would have to show the same facts.
Plaintiff’s theory (which seems to have been adopted by the court) was, that the answer of the defendant in garnishment was conclusive, and that he was estopped from denying or contesting it. Viewed even from this standpoint, we think the court'was in error, for the answer made by the defendant shows on its face an uncompleted or conditional indebtedness, depending upon the delivery to him of a deed, the cancellation of certain indebtedness, the payment of certain taxes, and the amount of indebtedness to be ascertained from these payments; and before the plaintiff could recover upon that answer alone, he would have to show that these conditions had been performed; for as long as there was anything more for Shields to do before this payment, that performance would have to be done or shown, or a tender made, before payment could be demanded. Defendant was entitled to receive a title to the land, and before he could be compelled to pay Shields or the plaintiff the conveyance of the land must be completed.
It is therefore recommended that the judgment of the court below be reversed.
By the Court:. It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The prohibitory liquor law provides that all fines and costs assessed against persons for a violation of the law shall be a lien upon the real estate of such persons; and it also provides that if any person shall let or lease his building and premises, and knowingly suffer the same to be used and occupied for the sale of intoxicating liquors, contrary to the provisions of the act, the premises so leased and occupied shall be subject to a lien for and may be sold to pay-mil fines and costs assessed against the occupant for any violation of the act, and that such lien may be enforced by civil action in any court having jurisdiction. ( Laws of 1881, ch. 128, § 18.) The present action is brought in the name of the state, in pursuance of that provision, to enforce a lien against certain real estate owned by C. A. A. Cordes, in Wabaunsee county. The allegations of the petition in substance are, that one Joseph Westende was prosecuted upon an indictment containing seven counts, in which he was charged with having sold intoxicating liquor in violation of the law on certain days in 1884, “in a frame building, at that time known and commonly called the Cottage Hotel, now the Eskridge Hotel, situated on lot 1, in block 8, in the town of Eskridge, sometimes called East Eskridge, in Wilmington township, in Wabaunsee county, in the state of Kansas.” It was averred that Westende pleaded guilty upon two counts of the indictment, and was adjudged to pay a fine of two hundred dollars and the costs of the action, taxed at $47.65; and also that the fine and costs had not been paid. The further allegation was made, that “ C. A. A. Cordes, the defendant in this action, was, at the time of the commission of the offense charged in said indictment, and now is, the owner of the premises described in said indictment, and leased said premises to said Joseph Westende for the sale of intoxicating liquors contrary to law.” A general denial closed the issues; and a trial before a jury resulted in a verdict and judgment in favor of the state.
Cordes presents several assignments of error, which must be determined against him. The first objection was to the admission of any testimony under the petition, because it was not alleged that the defendant knowingly permitted the premises to be used by Westende for the sale of the liquors to which Westende pleaded guilty and was convicted. In other words, he insisted that the lien could not be enforced unless it was alleged and proved that Cordes had knowingly permitted the particular sales upon which the conviction of Westende was had. The question was raised again in the refusal of instructions embodying the same idea, which were requested by the defendant. The position of the plaintiff in error is not tenable. Nothing in the statute requires such an interpretation; and to hold it necessary to allege and prove that the lessor knew of and acquiesced in the particular sales on which the conviction of the occupant rested, would practically defeat the object of the legislature in framing the provision, as such proof could rarely be made. If the theory of plaintiff in error is correct, a person who had purposely leased his premises for such unlawful use could avoid liability under the statute by simply absenting himself from the premises while the sales were being made. It involves the absurdity of the owner, knowing that the occupant was engaged in the business of selling liquor unlawfully every day and to all who would buy, and yet escape liability because he did not chance to see or learn to whom the sales were made. It is enough to aver and show that the premises had been leased . to the occupant, and that the lessor had knowingly permitted the occupant to use the premises for the unlawful sale of intoxicating liquors during the time the sales were made upon which the convictions were had. Reading all the allegations of the petition together, they sufficiently show that Cordes knowingly permitted the premises to be used and occupied for the unlawful sale of intoxicating liquors during the time the sales in question were made; and the evidence shows that Westende occupied the premises only about two months prior to the 11th day of December, 1884, and during that time Westende sold intoxicating liquors to Cordes and to others in his presence.
Another objection was made, to the admission in evidence of a certain deed which was offered for the purpose of showing a conveyance of the premises in question to Cordes, and that he was the owner thereof. The objection was, that the description of the premises given in the deed did not conform to that stated in the petition and indictment. In the deed the description was, “lot No. 1, in block 8, in the town of East Eskridge, Wabaunsee county, and state of Kansas.” The description in the petition in this case, and in the indictment in the prosecution against Westende, was, “in a frame building at that time known and commonly called the Cottage Hotel, (now the Eskridge Hotel,) situated on lot 1, in block 8, in the town of Eskridge, (sometimes called East Eskridge,) in Wilmington township, in Wabaunsee county, and state of Kansas.” It will be observed that in both the deed and in the petition the lot is designated by the same numbers, and clearly designated as a portion of East Eskridge. It appears from the testimony that two town sites had been platted in Wilmington township, Wabaunsee county — one as Eskridge, and the other as East Eskridge. They lie together, and form one town, which is commonly called Eskridge by the people of the town and neighborhood. There are still other facts which leave no doubt that the lot described in the deed is the same as that mentioned in the petition, and anyone acquainted with these facts and with the descriptions given will have no difficulty in locating it. The hotel mentioned in the petition is well described, and it stands on lot 1, in block 8, in that part of the town called East Eskridge, and there is no hotel of that name or description elsewhere in the town or even in the township. Then again, there is no lot 1, in block 8, in the town site which was platted as Eskridge, and the only premises in the county of Wabaunsee to which the description given in the petition could and did apply was the lot described in the deed. Under this state of facts it is clear that both the descriptions fairly designate the same lot, and that the ruling of the court in admitting the deed in evidence was correct. (Seaton v. Hixon, 35 Kas. 663; 12 Pac. Rep. 22.)
An exception was taken to the last clause of the following instruction, which was given by the court:
“ I further instruct you that the defendant knowingly suffered the premises described in the petition to be occupied for the sale of intoxicating liquor, may be shown either by positive proof or circumstantial evidence, or by both; and in determining this question you may take into consideration all the circumstances which have been proven to exist tending to show that the defendant actually had some knowledge that intoxicating liquor was being sold on the premises prior to the time already indicated; and I further instruct you that under the circumstances of this case, knowledge sufficient to excite suspicions of a prudent man, and to put him upon inquiry, would be equivalent to knowledge of the ultimate fact.”
This is a correct statement of the law, and under the pleadings and evidence it was applicable to the present case. We find no error in the record, and a£grm the judgment of the district court.
All the Justices concurring. | [
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Rees, J.:
Plaintiff Robert Owen appeals from an order of summary judgment in favor of defendant Jones Transfer on Owen’s claim for damages for conversion of property Jones Transfer sold to enforce a warehouseman’s lien. Owen contends there exist genuine issues of material fact precluding entry of summary judgment on the issue of Jones Transfer’s compliance with the statutory procedures of K.S.A. 84-7-210 for enforcement of a warehouseman’s lien. We reverse.
Owen is a former tenant of defendant B. R. Treadwell, not a party on appeal. Jones Transfer is a warehouse operating in Wichita, Kansas. The facts are uncontroverted.
On July 29, 1981, Treadwell filed a petition in Sedgwick County District Court seeking to evict Owen from his property in Goddard, Kansas, for nonpayment of rent. Owen did not answer and on August 10 Treadwell secured a default judgment. Pursuant to a writ of restitution and execution, the validity of which is not questioned, the Sedgwick County Sheriff restored Treadwell to possession of his property. The Sheriff also employed Jones Transfer to remove all property on August 17, 1981, except property the Sheriff “deemed junk and unfeasible to move.” The property removed by Jones Transfer included a stereo, bed, tools, kitchen appliances, dishes, clothing, and so on.
Owen did not attempt to contact Treadwell or the Sheriff to discover where his property was. He asserts that because of lack of funds he had moved to Independence, Missouri, with his parents. In any event, three months after the property was seized, on October 14, 1981, Jones Transfer mailed by certified letter to Owen’s last known address (the Goddard address), the following “Notice of Warehouseman’s Lien”:
“This is to notify you that Jones Storage & Moving, Inc. as shown by the itemized statement attached hereto, claims a warehouseman’s lien on all of the goods shown in and on the list of goods attached hereto. That is if payment of said lien is not paid within 14 days after date of this notice, the goods will be advertised for sale and sold by auction at the Broadway Auction, 2753 N. Broadway, Wichita, Kansas commencing at 7:00 PM on November 21, 1981.”
The letter was returned, marked “moved and left no address.”
Needless to say, Owen did not pay the storage charges within the 14 days specified by the notice. On November 6, 7 and 13, 1981, Jones Transfer published a legal notice in the Daily Record:
“Notice is hereby given that Jones Storage & Moving, Inc. will offer for sale and sell at public auction, under the provisions of the Kansas Uniform Commercial Code, any and all of the household items of personalty, described on the inventories accompanying the bills of lading being held at its direction for the account of the shipper’s listed below to satisfy its carrier’s lien. Public auction sale will begin at 7:00 p.m. o’clock on November 21, 1981, and will continue thereafter until all of said items are sold, at Broadway Auction, 2753 N. Broadway, Wichita, Kansas.”
Owen’s name was listed thereunder as one of forty-five “shippers.”
On November 21, 1981, a public auction was held. Owen’s property was sold to individual unnamed buyers for a total of $635.50. Less commission, Jones Transfer netted $508.40 to partially satisfy a three-month storage bill of $545.63.
One year later, on December 15, 1982, Owen filed this action against Treadwell and Jones Transfer, alleging “intentional fraudulent eviction” against Treadwell and conversion against Jones Transfer. Owen later settled with Treadwell and he was dismissed from the suit. Jones Transfer then moved for summary judgment, reciting its strict compliance with the Uniform Commercial Code (UCC) procedures for enforcing a warehouseman’s lien. The motion was supported by an affidavit from the president of Jones Transfer in which he stated that his company had removed Owen’s property “in a good workmanlike manner and acted in good faith.”
Owen opposed the motion on four grounds, contending material issues of genuine fact remained: (1) whether the notice Jones Transfer sent to him properly described and itemized the goods subject to the lien; (2) whether Jones Transfer acted in good faith in describing the goods in the published notice as “household items of personalty”; (3) whether Jones Transfer sold more property than reasonably necessary to satisfy the lien; and (4) whether Jones Transfer used good faith in trying to notify Owen of its lien. The memorandum in opposition to the motion was supported by Owen’s affidavit, in which he stated he had no notice of Jones Transfer’s lien; that Jones Transfer sold more property than reasonably necessary to satisfy the lien; and that “all actions of Jones Transfer were not performed in good faith.” He also attached his answer to an interrogatory propounded by Treadwell, in which he valued the subject property at the time he purchased it as worth $18,000.
After a hearing, the district court orally found that “the requirement of good faith is present from the affidavit [of Jones Transfer’s president] and from the statements of counsel”; that, as Owen conceded, Jones Transfer did not intentionally harm Owen; that there was no “requirement that Jones [Transfer] get out and gumshoe around to see if he could find [Owen]”; that “household items of personalty . . . covers tools and a stereo”; and “that the requirements of the Uniform Commercial Code have been satisfied.” He thus sustained Jones Transfer’s motion and entered summary judgment.
On appeal, Owen contends the district court erred in finding as a matter of law that (1) Jones Transfer did not sell more goods than apparently necessary to insure satisfaction of its lien; (2) the description “household items of personalty” sufficiently described Owen’s property; and (3) Jones Transfer sold Owen’s property in a commercially reasonable manner.
No warehouseman’s lien existed at common law. The statute creating the lien, K.S.A. 84-7-209(1), grants a statutory lien to the warehouseman against the bailor
“on the goods covered by a warehouse receipt or on the proceeds thereof in his possession for charges for storage or transportation . . insurance, labor, or charges present or future in relation to the goods, and for expenses necessary for preservation of the goods or reasonably incurred in their sale pursuant to law.”
Subsection (3)(b) of that statute extends the lien covering household goods as against all persons, “if the depositor was the legal possessor of the goods at the time of deposit.” (Emphasis added.) “Household goods” is further defined as “furniture, furnishings and personal effects used by the depositor in a dwelling.” (Emphasis added.) K.S.A. 84-7-209(3)(b).
K.S.A. 84-7-210(1) delimits the procedure the warehouseman must follow to enforce the lien. K.S.A. 84-7-210(1) provides:
“(1) Except as provided in subsection (2), a warehouseman’s lien may be enforced by public or private sale of the goods in block or in parcels, at any time or place and on any terms which are commercially reasonable, after notifying all persons known to claim an interest in the goods. Such notification must include a statement of the amount due, the nature of the proposed sale and the time and place of any public sale. The fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the warehouseman is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner. If the warehouseman either sells the goods in the usual manner in any recognized market therefor, or if he sells at the price current in such market at the time of his sale, or if he has otherwise sold in conformity with commercially reasonable practices among dealers in the type of goods sold, he has sold in a commercially reasonable manner. A sale of more goods than apparently necéssary to be offered to insure satisfaction of the obligation is not commercially reasonable except in cases covered by the preceding sentence.” (Emphasis added.)
And K.S.A. 84-7-210(2) provides:
“(2) A warehouseman’s lien on goods other than goods stored by a merchant in the course of his business may be enforced only as follows:
“(a) All persons known to claim an interest in the goods must be notified.
“(b) The notification must be delivered in person or sent by registered or certified letter to the last known address of any person to be notified.
“(c) The notification must include an itemized statement of the claim, a description of the goods subject to the lien, a demand for payment within a specified time not less than ten days after receipt of the notification, and a conspicuous statement that unless the claim is paid within that time the goods will be advertised for sale and sold by auction at a specified time and place.
“(d) The sale must conform to the terms of the notification.
“(e) The sale must be held at the nearest suitable place to that where the goods are held or stored.
“(f) After the expiration of the time given in the notification, an advertisement of the sale must be published once a week for two weeks consecutively in a newspaper of general circulation where the sale is to be held. The advertisement must include a description of the goods, the name of the person on whose account they are being held, and the time and place of the sale. The sale must take place at least fifteen days after the first publication. If there is no newspaper of general circulation where the sale is to be held, the advertisement must be posted at least ten days before the sale in not less than six conspicuous places in the neighborhood of the proposed sale.”
Before discussing the merits, there are several threshold issues that at least must be raised. First, we observe that there may exist an issue whether Jones Transfer acquired a valid warehouseman’s lien; specifically, whether the sheriff was the “legal possessor” of Owen’s goods at the time he deposited them with Jones Transfer. See, e.g., Att’y Gen. Op. No. 85-177. However, since the parties have not addressed the issue and since resolution of the raised issues leads to the same result — reversal of summary judgment — we decline to discuss it.
Second, we must consider what standard of compliance K.S.A. 84-7-210(2) demands.
The official UCC and Kansas Comments to K.S.A. 84-7-210(1) and (2) explain that subsection (1) applies when goods have been stored by a merchant in the course of his business, and that its swifter, more flexible procedures and standard of commercial reasonableness are more appropriate to commercial storage. In contrast, subsection (2) embraces principally storage of household goods by private owners, and sets forth more detailed provisions as to notification, publication and public sale. These comments give us cause to consider whether each subsection utilizes its own standard and what those standards are. To our best knowledge, all courts that have decided the issue have determined that, in contrast to subsection (l)’s commercial reasonableness standard, subsection (2) requires strict and literal compliance with its provisions on the part of the warehouseman, by virtue of that subsection’s language:
“(2) A warehouseman’s lien on goods other than goods stored by a merchant in the course of his business may be enforced only as follows: . . .” (Emphasis added.)
See Scott v. Hurd-Corrigan Co., 103 Mich. App. 322, 302 N.W.2d 867, 30 U.C.C. Rep. Ser. 1649 (1981); Hughes v. Accredited Movers, Inc., 190 N.J. Super. 71, 461 A.2d 1203, 36 U.C.C. Rep. Ser. 938 (1983); Poole v. Christian, 64 Ohio Misc. 32, 411 N.E.2d 513 (1980); Kellenberger v. Bob Meyers Moving & Storage, 595 P.2d 1229, 1231, 26 U.C.C. Rep. Ser. 484 (Okla. App. 1979); Flores v. Didear Van & Storage Company, Inc., 489 S.W.2d 406, 408, 12 U.C.C. Rep. Ser. 168 (Tex. Civ. App. 1972). Cf. subsection (1): “[A] warehouseman’s lien may be enforced.” (Emphasis added.)
The reason for § 7-210(2)’s strict requirements is that “Mon-variable rules prevent storers and transporters from overreaching their customers and from discriminating between them.” Kellenberger v. Bob Meyers Moving & Storage, 595 P.2d at 1232; Bradford v. Muinzer, 498 F. Supp. 1384 (N.D. Ill. 1980); see also White & Summers, Uniform Commercial Code § 20-2 (2d ed. 1980). We find this rationale persuasive. We therefore hold that K.S.A. 84-7-210(2) requires strict compliance on the part of the warehouseman seeking to enforce its statutory lien covering household goods.
Finally, there is a third threshold issue tangentially raised by the parties: Do the K.S.A. 84-7-210(1) standards of commercial reasonableness also apply to K.S.A. 84-7-210(2)?
Although the language of both the Comments and of the statute itself (“Except as provided in subsection (2) . . .”) suggest that the provisions of (1) and (2) are mutually exclusive, the only judicial decision we have found on the issue held that the “commercial reasonableness” standard of subsection (1) governs all sales of goods subject to a warehouseman’s lien except to the extent that subsection (2) imposes stricter or additional requirements on a warehouseman’s selling of a nonmerchant’s goods. Bradford v. Muinzer, 498 F. Supp. at 1389. The Bradford court compared other UCC provisions making a distinction between merchants and nonmerchants, and noted that:
“When other UCC provisions apply only to merchants, the provisions so state explicitly rather than by inference. See, e.g., UCC section 2-205, section 2-603 .... [And considering the purpose of section 7-210(2) to prevent overreaching], it seems highly unlikely that the requirement that a sale be commercially reasonable is applicable to sales of merchants’ goods but inapplicable to sales of nonmerchants’ goods.” 498 F. Supp. at 1389.
We find that this rationale makes good sense. Since this was a storage of household goods, we therefore conclude that for Jones Transfer to succeed in this suit, it must have complied with both the detailed standards of subsection (2) and with the more amorphous standard of commercial reasonableness set forth in subsection (1), except to the extent subsection (2) imposes stricter or additional requirements.
That said, we have reviewed the record and find it was error for the trial court to hold as a matter of law that Jones Transfer complied with all statutory requirements for enforcing its lien. Without even reaching the issues raised by Owen, we find there exist issues whether Jones Transfer’s notice of lien included (1) “a conspicuous statement that unless the claim is paid within that time the goods will be advertised for sale” (see 84-1-201[10]); and (2) an “itemized statement of the claim.” K.S.A. 84-7-210(2). (Emphasis added.)
Unable to find as a matter of law that Jones Transfer strictly complied with the procedures for enforcing a warehouseman’s lien, we must reverse the summary judgment.
Reversed. | [
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The opinion of the court, was delivered by
Valentine, J.:
The plaintiff Todd and the defendant Allen were formerly partners in the drug business, under the name of Allen & Todd. On 17th June 1874 they entered into a written executory coutract to dissolve their copartnership, and to sell their partnership business, including all their partnership property and good-.will, to the partner who would pay the most therefor. Afterward they made an estimate of their assets and liabilities, Band on June 18th or 19th sold said business and all their assets, except certain accounts denominated “worthless accounts,” and perhaps those too, to said Allen. Whether said accounts were in fact so sold or not, was the principal question attempted to be litigated in the court below. The plaintiff Todd claimed that said accounts were not so sold, but were reserved from said sale with the agreement that whatever portion of them might be collected by Allen should be equally divided between the parties, and whatever portion of them might be collected by Todd should be divided, one-third to Allen and two-thirds to Todd. On the other hand, Allen claimed that all of said accounts, as well as all the other property belonging to firm, 'were included in said sale, and therefore that all were sold to him, and all belonged to him exclusively. By the terms of said .written contract said accounts were to be included in the sale to be made under said contract; and therefore it was contended by the defendant in the court below, that no other sale or kind of sale could have in fact been made by the parties; or at least, it was claimed that the plaintiff had no right to show on the trial, by any kind of evidence, that the terms of said sale as specified in said written contract were afterward in any manner varied or modified by the parties. On the other hand, the plaintiff claimed that said written contract was not in fact strictly followed, if followed at all, in making said sale, and that he had a right to show by parol evidence just how the sale was in fact made, notwithstanding said written contract. Upon this question the court below ruled in favor of the defendant. That is, the court below ruled that the written contract did not become a complete and binding contract until the sale was completed under it, and therefore that no sale of any kind could be shown except the one contemplated in said contract; for, the court held, to show a sale different from the one contemplated in said contract would be to contradict and vary the terms of the contract. The court held that no other contract, written or parol, made prior to said sale, could be shown; but that any contract written or parol, made subsequently to said sale, might be shown.
It is well settled, that the terms of a written contract cannot be varied by any previously executed contract, written or parol, nor by any contemporaneous parol contract. It is equally well settled, that the terms of a written contract may be varied, modified, waived, annulled, or wholly set aside, by any subsequently executed contract, whether such subsequently executed contract be in writing or in parol. Now was said sale to Allen made subsequently to the execution of said written contract, or was it made contemporaneously therewith? Unquestionably the sale was made subsequently, and at least one day thereafter. The contract was executed June 17th. That is, the instrument constituting the contract was executed on that day, and became a completed contract on that day. But the things stipulated to be performed under such contract were hot however executed on that day, and some of them probably never were executed in exact accordance with the terms of such contract. The stipulations with regard to said sale were certainly not executed at the time of the execution of the instrument, but were certainly all merely executory. The contract did not create a sale, or constitute a sale. It merely provided for a sale to be made at some indefinite time in the future. And who would be the purchaser, or who the seller, or what the price would be, no one could tell from the contract. Each partner was to bid, and each was to bid alternately, until his bid should be accepted by the other partner. The sale actually transpired on the 18th, or 19th, of June, and Allen was the purchaser; but by the terms of the contract it might have transpired at any other time after the contract was made, and Todd might have been the purchaser. And according to the evidence the sale was not conducted strictly in accordance with the contract. Allen was the only bidder, and said accounts were not included in the sale. We think the court below erred in excluding evidence tending to show that said accounts were not included in said sale, and that the plaintiff was to have one-half of whatever Allen might collect of them.
After the plaintiff rested his case, the defendant demurred to the evidence, and the court below sustained the demurrer, and refused to submit the case to the jury. Now upon the defendant’s theory of the case, this was right; but upon the plaintiff’s theory of the case, it was wrong. If the plaintiff had no right to show a sale different from the one contemplated in said written contract, then there was no sufficient evidence to go to the jury. But if the plaintiff had a right to show that the sale was such as he claimed that it was, and that said accounts were excluded from the sale, and that he was to have one-half of what Allen collected thereon, then there was evidence sufficient to go to the jury. It is immay terial however whether there was sufficient evidence or not to go to the jury; for, because of the jiaid error in excluding evidence, the judgment of the court below must be reversed.
Brewer, J., concurring.
Horton, C. J., not sitting, having been of counsel in the court below. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action on a certain promissory note, which reads as follows:
“$75.00. Topeka, Kansas, January 11th, 1874.
March 1st after date, for value received, I promise to pay to the order of N. A. Johnson seventy-five dollars at the Topeka National Bank, Topeka, Kansas, with twelve per cent, interest after maturity, and cost of collecting, including reasonable attorney-fees if suit be instituted on this note.
“F. G. Nelson.”
Indorsed — “N. A. Johnson,” “Lorenzo Pauly.”
G. H. Bradford, the plaintiff in error, was also plaintiff below, and is the owner and holder of said note. It does not appear that any demand of payment of said note was made at the time the same became due, or that any proper notice of non-payment was ever given to the indorsers, and therefore the question arises, (and it is the only question in this case,) are the indorsers, N. A. Johnson and Lorenzo Pauly, liable? The court below found the facts with refer ence to the execution and indorsement of said note to be as follows:
“The note in suit in this case was payable to the order of the defendant Johnson, and was given as a renewal in part of a larger note made and executed in the same manner that this note was, the difference in amount between the notes having been paid in money at the time of making the note in suit. The Topeka National Bank acted as agent for the plaintiff, and drew the note for the purpose of having it executed. The defendant Nelson took the note, signed it himself, and then the defendant Johnson wrote his name across the back of the note, and after Johnson had so written his name the defendant Pauly wrote his name upon the back of the note. After the note had been executed, and the names of defendants Johnson and Pauly placed upon it as aforesaid, Nelson delivered the note and some money to the said Topeka National Bank, and received the above note referred to. Johnson and Pauly never had any further interest in the note than as above shown.”
The judgment of the court below was in favor of the defendants Johnson and Pauly, and against Bradford for costs. We think this judgment was correct. Whenever a negotiable promissory note is drawn up as this was, and is then signed by the maker thereof, and is then indorsed in blank, first by the payee thereof, and then by a third person, and the note is then delivered by the maker thereof for a sufficient consideration to still another person, who thereby becomes the holder thereof, the presumption in such a case should be, and is, ■ that the said payee and said third person intended to assume and did assume all the rights and privileges, as well as all the obligations and liabilities, usually assumed by indorsers of negotiable instruments. (See authorities cited in brief of counsel for defendants in error.) And it can make no difference in this case whether such presumption is conclusive, or only prima fade; for there is nothing in this case that tends in the slightest degree to rebut such presumption. All the parties connected with this note chose to make it appear as though Nelson, for value received, executed the note to Johnson, that Johnson then indorsed the note to Pauly, that Pauly then indorsed the note to the holder, and that the holder took the note thus executed and indorsed. And the holder in this case is more responsible for making the note so appear than any other person connected with the note. He, through his agent, the Topeka National Bank, drew the note, and then had it executed and indorsed in the very manner in which it was executed and indorsed. If the holder of the note had desired to hold Johnson and Pauly as makers of the note, or as guarantors, or as indorsers waiving demand and' notice, instead of indorsers with the usual rights and liabilities, he could easily have had it so arranged at the time of the execution and indorsement of the note, and have made the note itself so show it, provided of course that the other parties had so agreed. But probably (as counsel for the holder admit,) the holder himself (through his agents) wanted to hold Johnson and Pauly liable only as ordinary indorsers, so that he he might afterward recover protest fees and damages, in case of non-payment of the note and suit thereon. Johnson and Pauly were probably only accommodation indorsers. It does ■ not appear that they had any interest in the note, and it was Nelson, the payor, who finally delivered the same to the holder, and gave it force and effect. There is nothing in this case that tends to show that any person connected with the note intended that Johnson and Pauly should assume, or supposed that they did assume, any obligation or liability different from those ordinarily assumed by indorsers of negotiable instruments. Hence we think that they did assume just such obligations and liabilities, no more, and no less.
This case differs from the cases of Firman v. Blood, 2 Kas. 496, and Fuller v. Scott, 8 Kas. 25, in essential particulars. In those cases the notes were indorsed by third persons, prior to any indorsement made by the payees, and without any knowledge, intention or expectation that the notes ever would be indorsed by the payees; and the obligations of the indorsers in those cases were to the payees; and the notes themselves were in those cases prima facie evidence of those facts. Now in this case, Johnson was not a third person, but was the payee of the note; and Pauly did not indorse the note until after Johnson, the payee, had done so; and the obligation of Johnson was not to himself as payee, nor was the obligation of Pauly to Johnson, but prima facie the reverse. Prima facie, Johnson was under obligation as a prior indorser to Pauly, a subsequent indorser. But prima facie, and in fact, all the parties, Nelson, Johnson, and Pauly, were under obligation to Bradford, the holder of the note — Nelson as maker, Johnson as first indorser, and Pauly as second indorser. And as this was the only obligation which Johnson and Pauly were under to Bradford, and as no proper demand of payment was ever made, and as no proper notice of nonpayment was ever given, we think Johnson and Pauly as indorsers were discharged.
The judgment of the court below was correct, and must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Endress sued Ent before a justice of the peace on an account for goods sold, payment to be made on delivery. Ent failing to pay, the identical property sold was seized on attachment. To release the property from attachment, Ent as principal, with John C. Douglass as surety, executed the following undertaking:
{Court, and Title.) “We bind ourselves to the plaintiff, William Endress, in the sum of eighty-five dollars, that the defendant, M. L. Ent, shall perform the judgment of the said magistrate in this action touching the attachment herein.”
This undertaking, and the security therein, were approved and accepted by the justice of the peace. Endress recovered judgment against Ent, and the judgment remaining unsatisfied, suit was brought against Ent and Douglass on said undertaking, and judgment rendered by the justice of the peace against them. From this judgment an appeal was taken to the district court, and judgment rendered in favor of defendants for costs. The only question raised is, whether defendants are liable on the undertaking, on failing to pay the judgment in the original action. Section 52 of the justices act, (Gen. Stat. 1868, p.787,) provides, that—
“If the defendant, or other person in his behalf, at any time before judgment, cause an undertaking to be executed to the plaintiff, by one or more sureties, resident in the county, to be approved by the justice, in double the amount of the plaintiff’s claim, to be stated in his affidavit, to the effect that the defendant shall perform the judgment of the justice, the attachment in such action shall be discharged, and restitution made of any property taken under it, or the proceeds thereof. Such undertaking shall also discharge the liability of a garnishee, in such action, for any property of the defendant in his hands.”
Omitting the words, “touching the attachment herein,” the bond in question conforms to the above section of the statute. Does the addition of these words avoid the bond, as a statutory obligation? We think not. Technically, there could be no judgment “touching the attachment herein.” The words are meaningless. In an action where an order of attachment has been issued, and a levy made thereunder, if ju<3gmerff be rendered for the plaintiff, and no bond has been executed that the defendant shall perform the judgment of the justice, the property attached is sold, by order of the justice, under the same restrictions and l’egulations as if levied upon by execution, and the judgment is satisfied from the proceeds of such sale, if sufficient therefor. An order to sell the attached property, made by a justice, is not a judgment touching the attachment. The words, so unnecessarily added to the undertaking, as used, have no certain meaning, and must be treated as surplusage. With the words, “touching the attachment herein,” disregarded, the undertaking was executed in full compliance with the provisions of said section 52, and we hold, under this view, that the defendants are liable on the undertaking, on failing to pay the judgment in the original action.
It is insisted by the defendants, that the undertaking was intended as a forthcoming bond, as described in section 33 of the justices act, (Gen. Stat. 782,) and they cite the action of the justice in overruling the motion of Ent to discharge the attachment. The bond is very dissimilar from the undertaking required by said section 33, and cannot, by us, be construed into an undertaking that the property attached in this action, or its appraised value in money, should be forthcoming to answer the judgment of the court. The constable did not take the bond in question, and no appraisement was had; it was approved by the justice, and filed by him, and thereupon the property was left with Ent by the order of the justice. At the time Ent made the motion to discharge the attachment, there was in fact no attachment in the case to be discharged, the attachment issued and levied having been previously discharged by virtue of the acceptance by the justice of the undertaking given by the defendants, and the release of all the property thereon to Ent. Upon the rendition of the judgment, no order was made to sell the attached property, and this shows that, the justice considered the undertaking conditioned for the payment of the judgment, and not for the forthcoming of the property, or its value in money, on the day of sale. Afterward, the same justice rendered judgment on the undertaking in this action against the defendants, thus conclusively proving that he treated the undertaking as given in pursuance of said section 52, and not under section 33.
The defendants further insist, that the court below properly sustained the demurrer to the evidence, and rendered judgment for the defendants, because there was no evidence introduced on the trial that the judgment against Ent remained unsatisfied. On the hearing of the case, the plaintiff produced the undertaking sued on, the execution of which defendants admitted, and then gave in evidence all the proceedings in the case of the plaintiff against the defendants in the action to recover on the undertaking, and also all the proceedings in the original cas£ of the plaintiff against Ent, including the release of the attached property on the undertaking, and the rendition of the original judgment of $42.50, and $8.85 costs. This evidence was sufficient. The production of the judgment against Ent, with the docket of the justice, and all the proceedings and papers in that case, showed that the judgment had been duly rendered, and still remained unsatisfied. If the defendants contested the question as to said judgment being unsatisfied, that was a matter of defense, and they should have offered the proof, if any existed, to the contrary.
The judgment of the court below will be reversed, and a new trial ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action to restrain the collection of certain school-district taxes, levied by the county commissioners of Republic county for the year 1875. These taxes were levied for the purpose of paying interest on certain school-district bonds, and of creating a sinking-fund for their final redemption. These bonds were issued during the years 1871 and 18.72. In some of said districts said taxes amounted to more than two per cent, of the taxable property in said districts respectively. The only question now presented is, whether the county commissioners had the power to levy a tax for such purpose of more than two per cent, on the taxable property in said district for any one year. In 1866 an act of the legislature was passed authorizing school districts to issue bonds. (Laws of 1866, page 60, et seq.) Section 5 of that act authorized the levying of a tax to pay interest on said bonds, and to create a sinking-fund for their final redemption, but did not limit the amount of the tax. In 1867 sections 1 and 7 of the act of 1866 were amended, but the amendments do not affect this case. (Laws of 1867, pages 207, 208, 209.) The act of 1866, 'with amended sections 1 and 7, was published in the general statutes of 1868 as chapter 93, (Gen. Stat. 938 to 941.) Up to this time there was no restriction upon the amount of tax that might be levied for interest and sinking-fund on school-district bonds. But in 1871 section 5 of the act of 1866, and of chapter 93 of the general statutes, was so amended as to provide “that in no case shall the total amount of tax so levied, both to pay the interest on said bonds, and as a sinking-fund for the final redemption of said bonds, together, exceed two per cent, on the taxable property in the district.” (Laws of 1871, page 80.) In 1872 an act was passed “amendatory of and supplemental to chapter 93 of the general statutes relating to school-district bonds,” and also specially mentioning in the first section and amending “an act entitled an act to authorize school districts to issue bonds, approved February 26th, 1866.” Section 6 of this act of 1872, reads as follows:
“That sections four, five, and eight of the act to which this is amendatory and supplemental, be and the same are hereby repealed.” — (Laws of 1872, page T 73.)
Now the only section “five” of the act of 1866, and of chapter 93 of the general statutes, was said section five as amended in 1871, and as embodied in section 1 of the act of 1871. Said section 1 of the act of 1871, provides in these words:
“That section 5 of an act entitled an act to enable school districts in the state of Kansas to issue bonds, approved February 26th 1866, be and the same is hereby amended to read as follows: Section 5,” etc.
Here follows section five in full, taking the place of the original section five as published in the laws of 1866, and in the general statutes; and the original section five was, by virtue of this amendment, and of section 16 article 2 of the constitution, repealed. This section five, as amended in 1871, is the section that contains the restriction upon the power to levy a tax of more than two per cent., and also is by virtue of the act of 1871, and of said section 16 article 2 of the constitution, section five of the original act of 1866, and of chapter 93 of the general statutes of 1868. This section five as contained in section one of the act of 1871 was repealed by said section 6 of the act of 1872. This has already been so decided by this court; but the learned counsel for plaintiff in error have seemingly overlooked the decision. In the case of A. T. & S. F. Rld. Co. v. Williams, (16 Kas. 198, 199,) this court used the following language: “Section 5 of ‘an act to enable school districts in the state of Kansas to issue bonds/ approved February 26th 1866, (Gen. Stat. 940,) is section 1 of‘an act to amend an act to enable school districts in the state of Kansas to issue bonds/ approved February 27th, 1871, (Laws of 1871, page 80,) and is section 101 of the school laws of 1871, (Supt. McCarty’s edition, page 29;) and it was repealed February 29th, (March 21st), 1872, (Laws of 1872, page 173, §6.) Hence, said section 5, or sec tion 1, or section 101, whichever it may be called, can have but little force or influence in the decision of this case.” Now as said section 5 of the act of 1866, or section 1 of the act of 1871, was repealed in 1872, there was no restriction left, limiting in 1875 the power of the county commissioners in levying said taxes, and therefore the judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the cour,t was delivered by
Brewer, J.:
Action on two promissory notes, payable to the order of Maynard, Wells & Co. The allegations of the petition showing title in plaintiff,, and right to sue, are—
“That on the 10th of July 1871, this plaintiff was duly appointed receiver of the notes, bills, accounts, property and effects of the firm of Maynard, Wells & Co., by the city court of Brooklyn, state of New York, and that afterward, on the-day of-, he gave the requisite bond and security as such receiver, and filed the same with- the clerk of said court, properly approved, and entered upon the duties of said office as such receiver, and is now as such receiver in possession of the property, things in action, and effects of said firm, and of the notes here sued on. And the plaintiff further says, that he has been authorized and directed by said city court of Brooklyn to sue upon the notes herein set forth and collect the same.”
So mucli of the answer as is material to the questions to be considered is as follows:
“4. — The defendants further answering say, said city court of Brooklyn, under the constitution and laws of New York, had no jurisdiction to appoint the plaintiff receiver of said Maynard, Wells & Co., as alleged, and had no jurisdiction, power or authority to order this action to be brought in manner and form as alleged.
“ 5.-The defendants deny each and every allegation in said petition contained, not herein expressly admitted.”
No testimony was offered as to any matter referred to in the extract from the petition. The case was tried by the court, without a jury, and a general finding made for defendants.
The counsel for defendants name several matters upon either of which they claim that the ruling of the district court must be affirmed. We shall content ourselves with noticing but a single one. There is nothing by which the jurisdiction of the city court of Brooklyn, to make the appointment of plaintiff as receiver, is shown, or from which it can be inferred. No record of the proceedings in that court was offered in evidence. The constitution of the state of New York discloses nothing as to the jurisdiction of that court, and no evidence was offered of its jurisdiction, or of the statutes of that state. That it appointed plaintiff receiver, and directed him to sue, may perhaps be taken as admitted by a failure to deny the same under oath. But that it had jurisdiction to do this, is not thus admitted. We cannot tell from the record whether that court was one of general or special jurisdiction, in what proceedings it assumed to appoint plaintiff a receiver, or by what process it claimed to have acquired jurisdiction. Surely the mere fact that some court somewhere assumed to appoint plaintiff a receiver, without any evidence of the jurisdiction of the court over the subject-matter or the parties, is not sufficient to warrant a judgment in his favor based upon such appointment. It may be said that under section 121 of the code, (Gen. Stat. p.652,) the jurisdiction of the court is to be presumed until the contrary appears. While the language of this section may be broad enough to apply to courts of foreign states, yet the general construction and understanding has been, and properly too, that it applies only to the courts and officers of this state. M. M. College v. Newton, 2 Handy, 165; Hollister v. Hollister, 10 How. Pr. 539; Ayers v. Covill, 18 Barb. 260; McLaughlin v. Nichols, 13 Abb. 244; contra, Halstead v. Black, 17 Abb. 227.
"Whether a receiver' appointed by a foreign tribunal can in the absence of statutory authority maintain an action in the courts of this state, may perhaps be questionable. See sustaining directly or by implication the right, High on Receivers, §47; Rink v. St. John, 29 Barb. 585; Graydon v. Church, 7 Mich. 50; Hunt v. Columbian Ins. Co., 55 Maine, 297; Taylor v. Columbian Ins. Co., 14 Allen, 355; Hoyt v. Thompson, 5 N. Y. 320; Willetts v. Wath, 25 N. Y. 577; contra, Edwards on Receivers, p. 7; Booth v. Clark, 17 How. (U. S.) 327; Ins. Co. v. Bennison, 52 Mo. 17. In the case from U. S. supreme court, supra, Justice Wayne says, “Our industry has been tasked unsuccessfully to find a case in which a receiver has been permitted to sue in a foreign jurisdiction for the property of the debtor.”
The judgment will be affirmed.
All the. Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
A motion is made by defendants in error to strike out the “case-made,” and dismiss the petition in error; and it seems to us that the facts as disclosed by the record bring the case within the principles announced in the case of Weeks v. Medler, (ante, 425.) On January 11th 1875, the motion for a new trial was overruled; and sixty days from the rising of the court granted in which to make a case. When the court adjourned does not appear, but on the 1st of March 1875 a copy of the case-made was served on opposite counsel, as appears by their acknowledgment of service. Nothing further then appears save this certificate of the trial judge, and filing of the clerk of the court:
“ Signed, settled and allowed as and for a case-made for the supreme court of Kansas, this-day of--, A. D. 18 — . John R. Goodin, Judge.
“Filed, July 19th, 1875. John D. Cory, Clerk.”
Now in the case of Weeks v. Medler, it was held, that “the record should show affirmatively the previous steps necessary to the settlement of the case, in the absence of the appearance, or proper waiver by the opposing party.” Here the record fails to show any notice to the opposite party of the time and place of the settling of the case, any appearance or waiver by such party, or the time in which the case was in fact settled. For aught the record discloses, it may have been signed and settled the very day the copy was served on opposing counsel, as in Weeks v. Medler, and without giving them the three days in which to suggest amendments. It nowhere appears that the judge considered any amendments, or that any were suggested, or that counsel had none to sug gest, or that they had waived in any manner their right to suggest them.
For these reasons the motion must be sustained, and the case will be dismissed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Gross brought an action of replevin against the defendants. Upon the trial he proved title in himself, possession in defendants, and demand, and rested. In his testimony it appeared that one of the defendants claimed possession as constable, and by virtue of a writ of replevin in a suit of Knight against Wilson. A demurrer to the evidence was sustained.
The ruling of the district court can be sustained only upon the theory, that an action of replevin will not under any circumstances lie against an officer to recover property held by him under a writ of replevin. The question must be settled by a reference to our statutes, for it will not be doubted that, at common law, property in the hands of an officer under a writ of replevin was in custodia legis, and could not be taken from him by means of another writ. And the same was true of executions, and other process. 1 Chitty’s Pl. 164. Our statute has modified the common-law rule, at least as to all process except the writ of replevin, or (as it is termed in the code,) the order for the delivery of property. Westenberger v. Wheaton, 8 Kas. 178. That was a case where the defendant in an execution attempted to replevy, and the court held that as to him the common-law rule applied. It however stated the exceptions to that rule in.these words, Ch. Justice King-man delivering the opinion: “The code has so modified this, that any person other than the judgment-debtor, or person against whom the process is issued, may have this remedy because the issues made in any such proceeding by a stranger raise no question as to the validity or regularity of the judgment or process.” While this reason does not apply with equal force in the case at bar, because the command to the officer in a writ of replevin is specific, to seize the particular property and deliver it to the plaintiff, and. so in a certain sense the second action challenges the propriety of the first writ, yet it must be remembered that no question is made as to the validity of the proceedings, or regularity of the process, as between Knight and Wilson. The plaintiff claims adversely to both Knight and Wilson. And so far as appears from the testimony offered, his property was, without the slightest pretext or excuse, seized and held by the officer in a proceeding to which he was not a party, and in which he could claim uo benefit of the plaintiff’s undertaking as a protection against injury. While he might have been made a party to that action, yet it could have been done only upon leave of the court, (Gen. Stat. 637, § 42,) and the property itself might have been gotten out of the way long before this order could have been obtained, while stipulations between the parties might have settled the judgment to be entered, and released the sureties on the bond. But turning to the statute, and it seems to us that the same rule there obtains, in case of property taken under a writ of replevin, as when taken under execution. The party against whom the writ runs cannot litigate its validity in an action of replevin, but a third party may assert his right to the property in the possession of the officer. The statute provision concerning the affidavit is, (see sub. 4 of sec. 177, Gen. Stat., p. 661,) “That it was not taken in execution on any order or judgment against said plaintiff, or for the payment of any tax, fine, or amercement assessed against him, or by virtue of an order of delivery issued under this article, or any other mesne or final process, issued against said plaintiff.” Now the last four words, may, it is true, be construed as limiting only the clause, “any other mesne or final process,” and leaving the clause immediately preceding entirely independent and unaffected by them. But it seems to us a better construction is to consider both clauses limited by the words, “issued against said plaintiff.” While the punctuation is not of much weight, yet so far as it goes, it tends in this direction, for we find a comma after the word “ process,” which we should not expect if the subsequent words only qualified those immediately preceding. Again, the use of the words, “or any other,” seem to bind the two clauses together as one, so as to make any subsequent limitation applicable to both. And finally, if it was not the purpose to have the same rule applicable to writs of replevin, as to all other process, we think the legislature would have made the intention clear. The very fact that language is used susceptible of either construction, seems to compel the conclusion that the legislature intended that the same rule should apply to all process.
The district court therefore erred in sustaining the demurrer to plaintiff’s evidence, and the ease must be remanded with instructions to grant a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The facts in this case are these. 'William. Hiscock owned certain premises upon which was situated a hotel. This property he mortgaged to C. E. Olmstead. He then sold an undivided-half to Palmer Cummings, the latter, in part consideration therefor, agreeing to pay the mortgage. Cummings insured his interest in the Kansas Insurance Company. Olmstead, the mortgagee, insured his interest in the St. Joseph F. & M. Ins. Co. The building burned. The St. Jos. company paid Olmstead his policy, taking an assignment of his mortgage. It then assigned the mortgage to the Kansas Insurance Co., receiving as consideration therefor one dollar in cash, and a due-bill for $500. The mortgage-interest assigned was the same in amount as the policy in the Kansas Insurance Company, to-wit, $1,000. Cummings assigned his claim on the policy to Craft, but the assignment was not made until after the assignment of the mortgage to the Kansas Insurance Company. .
Could the Kansas Insurance Company off-set the mortgage against the policy? No question is made of the validity of the mortgage, but it is insisted that it was ultra vires of the corporation to use its credit in purchasing obligations of the insured for the purpose of discharging its liabilities to him on its policy. It is not doubted that an insurance company may legally invest its funds in obligations, properly secured, of parties whom it has insured, and then in case of loss offset the obligations against the policy. But here, after a loss, it goes into the market and buys upon credit an obligation of the insured, and proposes to discharge its liability therewith. Can this be tolerated? The question, in view of the immense insurance business of to-day, both fire and life, is one of no little importance. And it is one whose solution will largely affect the practical value of insurance. For if this is tolerated, it will be a constant temptation to insurance companies to withhold payment for the purpose of seeing whether obligations of the insured cannot be purchased at a discount, and by the very fact of nonpayment diminishing his credit, and increasing the discount. It is of course a question whose solution depends upon the statute, for it cannot be doubted that the legislature may grant to them that unlimited control of their means and credit which will warrant a transaction like the one before us. Has it done so? It is elementary, that a corporation takes nothing by implication, that it possesses only the powers expressly granted, and those necessary for the execution of those expressly granted. “Being the mere creature of law, it (the corporation) possesses only those properties which the charter of its creation confers upon it,either expressly or as incidental to its very existence.” Ch. J. Marshal], in Dartmouth College v. Woodward, 4 Wheat. 518. The buying up of the obligations of an insured, is no part of an insurance contract, nor essential to the due execution of the power to insure. But we are referred to §29, p. 225, laws 1871, as granting the power to do that which was done in this case. That reads —
“It shall be lawful for any insurance company * * * to invest-its capital and the funds accumulated in the course of its business or any part thereof in bonds and mortgages -on real estate, * * * and to lend the same or any part thereof on the security of such stocks or bonds, * * * and to change and reinvest the same as occasion may from time to time require.”
This authorizes an investment of capital and funds, nothing more. But here was no investment of capital or funds, but simply the use of its credit to purchase a mortgage. It exchanged its own obligation for the obligation of the insured — for the cash part of the consideration was merely nominal, and the real consideration was its due-bill. The jury found that the purchase was not as an investment, but for the purposes of an off-set. And the circumstances could lead to no other conclusion. The insurance company proved that His-cock and Cummings were insolvent; and it appeared from the testimony of the secretary of the St. Jos. Ins. Co., that the lots, after the fire, were no security for the mortgage. Hence, there was nothing to induce a purchase as an investment. But an investment presupposes something in hand to invest, some portion of capital or surplus funds, to be placed where it will be secure, and at the same time draw interest. But nothing of that kind took place here. If it had any funds, it did not use them in this purchase. All that it invested was its credit. Authorities are not wanting on this precise question. In the case of Smith v. Alabama Life Ins. & Trust Co., 4 Ala. (N. S.) 558, it appeared that the company was authorized to invest its funds in bonds and mortgages. It gave its own bond payable 'in New York as sole consideration for a bond and mortgage it took from Smith. The latter was held void, and the transaction unauthorized by its charter. See also, Ins. Co. v. Ely, 5 Conn. 560; F. & M. Bank v. Baldwin, Sup. Court of Minn., reported in Al. Law Journal Dec. 9th 1876, p. 391. But a case still stronger than these, and almost identical with the one before us, is that of Strauss v. Eagle Ins. Co., 5 Ohio St. 59. In that case the insurance company after a loss bought upon credit the obligations of the insured, and sought to off-set them against the policy. It had authority “to invest all or any part of its capital stock, money, funds or other property, in such a way as the directors may deem best, for the safety of the capital and interest of the stockholders,” and such authority was relied upon to support the transaction. But the court held it ultra vires, and rendered judgment on the policy. The case is so clearly in point, and the views of that court so fully in harmony with our own, that we quote the following from their opinion:
“The power of the investment therein conferred was designed to enable the company to make a profitable use of its surplus funds, by placing them at' interest, with a view to their safety and the interest of the stockholders. But how the purchase upon credit of the promissory notes of one entitled to indemnity from the company, involving the use of no such funds, can be regarded as a fair execution of this power; is not'readily perceived. Indeed, we are very clear, that it is not only without the limits of the charter, but directly opposed to its leading objects. We are not to assume that this corporation was created for the mere benefit of the stockholders. The general assembly must be supposed to have had a view to the public good, when they authorized the company to make contracts for indemnity against the calamities of' fire. They must be presumed to have known, that the largest class of persons likely to avail themselves of this security would be merchants, whose all was invested in perishable property, and whose earnings for years might be destroyed in an hour; and whose credit must, of necessity, suffer unless prompt payment was made. To have furnished inducements for withholding prompt payment, for the purpose of depressing the credit of the insured, thereby enabling the company to purchase his paper at a greater discount, would have been an act of most unaccountable folly and injustice. If it had been plainly proposed to arm the corporation with such a power, no one could for a moment suppose that it would have received any favor from any legislative body that .ever sat in the state. To engraft it upon the charter by construction, instead of conforming to the intention of the legislature, would be to disregard and defeat it. I should therefore have been of opinion that the company could not use its surplus funds, even in a manner so destructive to the purpose of its creation. But it is only necessary now to say, "that it could not, under the power of investment, employ its credit to purchase claims for such a purpose; that it had no power to become a party to the contract of indorsement, by which it obtained the notes in question, and no capacity to take or hold the legal title.”
We see no other question in the case not already decided by this court.
The judgment will therefore be affirmed.
Valentine, J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by.
Hokton, C. J.:
This case comes here on the record, without case-made or bill of exceptions, and the only error alleged is, that the petition does not state facts sufficient to constitute a cause of action against the plaintiff in error. The defendant in error sued jointly the Junction City & Fort Kearney Railway Company, and the Kansas Pacific Railway Co., to recover $600 as damages caused by the failure of the said J. C. & Ft. K. railway company to comply with a certain contract entered into between said company and said Hopkins, whereby the said Hopkins was to deed, the right-of-way through a half-quarter-section of land, and the fee-simple title of a piece of land bordering on such right-of-way, to the J. C. & Ft. K. railway company upon their building a side-track, depot, and station buildings on said half-quarter-section; and said railroad company was also to furnish Osage orange plants to fence the railroad, and was to pay for growing the fence, when sufficient to turn stock. The contract was dated 27th January 1873, and it provided that the depot and side-track should be constructed on or before the 1st of January 1874. The petition further alleged that the J. C. & Ft. K. railway company afterward assigned, transferred and conveyed to the K. P. railway company, by a lease for ninety-nine years, its railroad, property, rights and franchises pertaining thereto, and that the K. P. railway company, in consideration of such conveyance, and the property and rights it thereby received, it agreed and undertook on its part to discharge and perform all obligations and contracts to be performed by the J. C. & Ft. K. railway company and to pay all debts and dues of said company which were or had been entered into, incurred, or contracted; that immediately after the execution of the said agreement of January 27th, both of said railway companies entered upon and operated for a right-of-way, without other compensation than the said premises and agreements, a portion of the plaintiff’s premises stated in the contract, and that the K. P. railway company has ever since continued to occupy and use as a right-of-way, for its roadbed and railway track, the said premises, and continues in the possession and enjoyment of the same; that neither of the railway companies has ever paid or offered to pay for the land so appropriated, or for any damages occasioned to said Hopkins by reason of the building of the road, and that the said railway companies have wholly failed, neglected and refused to perform any of the agreements of the written contract to build the depot, station buildings and side-track, or furnish, as agreed, the Osage orange hedge plants. The petition was filed January 30th 1875. A verdict was returned by the jury for the defendant in error against the K. P. railway company for $100, and thereon judgment was rendered against the plaintiff in error.
The petition is attacked upon the grounds, that the averment of the refusal of the companies to build the depot, station buildings, and side-track, on the premises, or furnish the Osage orange plants, is inconsistent with the text 0f agreement, which plaintiff in error claims imposes no obligation whatever on the railroad company to build, but was in the nature of a conditional promise tó con vey. This condition being unperformed, the contract was altogether (it is claimed) determined, and the rights of the parties were just the same as if it had never been entered into at all, and that the pleading cannot be maintained, because the plaintiff below does not therein allege that either entry or possession was without his consent, but adopts the possession of the companies, and grounds his claim for payment upon it. We do not think the petition liable to the construction placed upon it by counsel of plaintiff in error. The petition sets out the execution of the agreement; the assumption of the obligations therein created against the J. C. & Ft. K. railway company by the K. P. railway company; the fact that the only consideration moving to Hopkins to part with his land for a right-of-way in this manner was the concurrent agreement of the J. C. & Ft. K. railway company; the entry of the two companies named upon the land of defendant in error immediately after the execution of the agreement, and in pursuance of such agreement; the continued use and occupation of the land for a right-of-way by the K. P. railway company; the failure and refusal of either company to perform any of the said agreements; the damages occasioned by such failure, and demand of judgment. Under the agreement, the said K. P. railway - company, by its contract with the J. C. & Ft. K. railway company, has received all the benefits of said agreement, has obtained the possession of the premises occupied by it, and it cannot now be relieved of its liability in the premises. The plaintiff in error accepted the agreement between Hopkins and the J. C. & Ft. K. railway company with its burdens as well as its benefits. But for this agreement and the contract between the two railway companies, Hopkins could have prevented the entry of either company on his land, until full compensation therefor had been first made in money, or duly secured, irrespective of any benefit from the construction of either road. He consented to the entry and occupation thereof, relying on the written promise of the J. C. & Ft. 3L railway company, for which the K. P. railway company made itself liable; and de fendant in error did not adopt the possession of the companies as his claim for damages, but the entry of such companies and the possession of the same by virtue of the contract, and their refusal to comply with the terms of the contract on their part. As the deed to be executed by Hopkins was not to be made until after the construction of the depot and side-track, of course, as a condition precedent to maintain this suit for damages, it was not necessary for Hopkins to either deliver or offer to deliver to the railroad companies a deed.
Counsel for plaintiff in error cites many authorities to show that the statute furnishes the only mode of ascertaining the damages consequent upon taking private property for public use, and asserts that these support his objection to the petition. The authorities in our opinion do not x x apply where a written contract exists between the parties as to the price to be paid for the right-of-way to be appropriated by a railway company. In this case, the compensation agreed upon to be paid for the right-of-way was the erection of the structures, the furnishing of the hedge-plants, paying for the cultivation thereof, etc., as provided in the contract; and the failure of the- company to comply therewith, after entry and possession for right-of-way, rendered it necessary to ascertain their equivalent value in money to Hopkins, or in other words to assess his damages as compensation for the particular thing the company agreed to do for the right:of-way under the contract, and which the company had failed to perform. In such a case the land-owner can at once, upon breach of the contract, have recourse to a court of law, and need not of necessity resort to the tribunal prescribed by the statute to have his damages assessed for the right-of-way appropriated from his lands. There is nothing in the statute prohibiting parties .from making their own agreements as to the price to be paid for a right-of-way for a railway; and when a contract is made therefor, the parties thereto are equally as much bound as.the obligors to any other valid agreement. Mhen parties do not voluntarily agree as to the compensation for the right-of-way appropriated (or to be appropriated) by a railway corporation, the statute provides the mode of ascertaining the compensation to the land-owner; but this statute in no manner prohibits parties from making their own agreements as to such compensation. The contract being in writing, the law presumes that there was a sufficient consideration for the agreement, and not being violative of any statute, or against public policy, of necessity is valid and capable of being fully enforced. (Northern Kansas Land Co. v. Oswald, ante, 336-339.)
Again, the petition is attacked on the ground that it is wholly bad, because it does not allege that Hopkins accepted the Kansas Pacific railway company instead of the J. C. & Ft. K. railway company, and that as both companies were made defendants in the court below, such action amounted to an election to preserve the liability of the J. C. & Ft. K. railway company, which negatived the liability of the K. P. railW company. The counsel for plaintiff in error contends, that, “even if such an action could be maintained against the person assuming the debt, it could not coexist with one against the original debtor. The creditor may assume the contract made.for his benefit by the original debtor, and so take the place of the original debtor; but he cannot hold both. The new debtor does not become co-debtor with or surety for the original debtor; but if the creditor accepts the new contract, it replaces the old one, and the original debtor is released.” The question is not presented in the record as suggested by the counsel. It is true, suit was brought by Hopkins against both railway companies; but on demurrer to the evidence by the J. C. & Ft. K. railway company, the demurrer was sustained, and judgment rendered in favor of the last-named company, and thereafter, all the proceedings were had as to the K. P. railway company, as though it had not been impleaded with the J. C. & Ft. K. railway company. The claim against the latter company was abandoned; and as the case was given to the jury, the action was maintainable on the rule, that the promise of the K. P. railway company to the J. C. & Ft. K. railway company, made upon a valid consideration, and having been adopted by Hopkins, was to be deemed as made to him, though he was not a party, nor cognizant of it when made. Anthony v. Herman, 14 Kas. 494. In the absence of any motion to make the petition more definite, and considering all the pleadings, we do not think that the same was fatally defective in not more clearly setting forth the acceptance of the K. P. railway company in place of the J. C. & Ft. K. railway company.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
"Valentine, J.:
This was au action on a promissory note, and to foreclose a mechanic’s lien. Judgment was rendered in the court below in favor of the plaintiffs on the promissory note, but against them on the mechanic’s lien, and they now bring the case to this court, claiming that the judgment with regard to the mechanic’s lien is erroneous. The facts with reference to the mechanic’s lien, as the same appear, from the evidence in the case, are substantially as follows: The plaintiffs were lumber and building-material merchants; the defendant was a carpenter and builder. The defendant, for some time prior to 28th May 1872, purchased building materials of the plaintiffs, and on that day owed them something therefor, not to exceed $308.50. Also, prior to that time, to-wit, on 28th November 1871, the defendant bought a town lot with a carpenter shop on it from the plaintiffs, for which he was to pay them the sum of $275, in installments, and the plaintiffs were to make and deliver to him a deed for the property when all the purchase-money therefor was paid. On said 28th of May, $75 of said purchase-money had been paid, and $200 thereof still remained unpaid. On that day, (28th May 1872,) the defendant made a contract with the plaintiffs, that they should furnish him with building materials for a house which he was about to build for himself. The materials were afterward, and in May and June, so furnished, the bill therefor amounting in the aggregate to $818.96. The defendant also purchased other building materials from the plaintiffs during the months of May, June, and July, amounting in the aggregate to a sum not exceeding $203.70. The items however of this extra building material were kept separate, in the plaintiffs’ account, from those for the defendant’s house. None of this building material was paid for "at the time it was delivered.The defendant however paid the plaintiffs during the months of June and July the sum of $450. And it may be possible that more than that sum was paid during the summer and fall of 1872, not however to exceed the sum of $140.65 in addition to said $450. That is, if the defendant owed the plaintiffs, on May 28th 1872, $308.50, and afterward purchased $818.96 worth of building materials for his house, and $203.70 worth of extra building material, aggregating $1,331.16, then there must have been not only the said $450 paid, but also the said $140.65, aggregating the $590.65; for on 9th December 1872 the defendant was owing the plaintiffs, for building materials, only $740.51. On 9th December 1872, the plaintiffs, by Mr. Leidigh, furnished the defendant with a statement which showed that the defendant owed the plaintiffs for building materials $740.51, and for said lot and shop $200, with $8.97 interest, making a total of $949.48. Two days later, 11th December, the parties settled in accordance with this statement, and the defendant paid the plaintiffs $350, and gave his promissory note (the one sued on) for the balance, $599.48. There was nothing said by either of the parties, at the time said payments were made, as to how any part of the sum paid should be appropriated. That is, nothing was said as to whether they should be applied in payment for materials for the defendant’s house, or for some other portion of the defendant’s indebtedness to plaintiffs. The evidence however shows that the defendant was unable to pay for any of said building materials at the time the same should have been paid for, and that the plaintiffs thereupon agreed to be lenient with regard to the payment for such of said materials as were put into the defendant’s house, but never consented to extend the time for payment for any of the other materials. This would seem to indicate that the parties intended that any payment that might be made should first be applied in payment of such of said materials as were not put into the defendant’s house, before any part of such . payment should be applied to any of the other indebtedness. And this was reasonable and equitable. For the most of the indebtedness which accrued for the materials which were not put into the defendant’s house was contracted prior to contracting the indebtedness for any of the other materials. And even where both classes of materials were received at the same time, those which were not to be put into the defendant’s house were to be paid for first according to contract. Besides, the plaintiffs had no security, and could get none except with the consent of the defendant, for payment for any of the materials which were not put into the defendant’s house, but they had security for all the other indebtedness. That is, the plaintiffs could at any time after furnishing the materials for the defendant’s house, and within four months after the completion thereof, perfect their mechanic’s lien on said house to secure payment for the materials which were put into the house; and the plaintiffs retained and held the legal title to the shop and lot to secure payment for such shop and lot. Also, at the very time that the parties made their said final settlement, and on the same day that the defendant paid said $350, the plaintiffs (by Mr. Leidigh, to whom the same was paid,) appropriated $208.97 thereof to the payment of the indebtedness for said shop and lot, and the balance thereof, to-wit, $140.03, in partial payment for said building material. And probably this is just what the defendant expected would be done; for it would seem from the evidence that at this time, and also sometime in February or March 1873, Mr. Leidigh told 'the defendant that they (the plaintiffs) would execute and deliver to the defendant a deed for said shop and lot, and plaintiffs afterward did so execute and deliver said deed, and the defendant accepted the same and said it was all right. Before this deed was so executed and delivered, the defendant himself mentioned the matter to Mr. Leidigh, as though he (the defendant) was expecting the deed. Now according to the original contract for the shop and lot, the defendant was not entitled to a deed for the same until such shop and lot were paid for. All this would seem to indicate that both parties thought that the shop and lot were paid for. At the time said sum of $350 was paid, and even up to and after the time when this suit was commenced, it would have made biit little difference to the plaintiffs whether any part of said $350 should be considered as applied in payment for said shop and lot or not. For up to and after the time when this suit was commenced, the plaintiffs had not executed, or delivered the deed for said shop and lot, and therefore up to and after the time when this suit was commenced they would have had their vendor’s lien on said shop and lot for the full amount of the purchase-money therefor, if such purchase-money had not yet been paid. (Stevens v. Chadwick, 10 Kas. 406.) But it is now different. The plaintiffs have now executed said deed for said shop and lot, and if the purchase-money therefor is still unpaid, then the plaintiffs have no security for its payment. They have lost their vendor’s lien by the execution and delivery of said deed. (Simpson v. Mundee, 3 Kas. 172.)
On 11th March 1873, the plaintiffs filed with the clerk of the district court a statement for a mechanic’s lien for the amount of their claim on said house of the defendant. At that time said house was not finished, and indeed it has not yet been finished. Said statement seems to be formal and sufficient in every respect. Said statement shows that the' original amount of the claim for materials furnished for said house was $818.96; that $219.48 thereof had been paid; that $599.48 thereof was still due, and that a promissory note for this last-mentioned amount had been given. Upon the foregoing facts the jury found that the plaintiffs had no mechanic’s lien. This finding we think was wholly against the evidence, and should have been set aside. The plaintiffs were in all probability entitled to their mechanic’s lien for the full amount of their claim. But they were certainly entitled to their mechanic’s lien for some portion thereof. In our opinion, all of said payments except $219.48 thereof should be applied to the payment of other indebtedness than that created for materials for the defendant’s house. And if so, then the plaintiffs should have their mechanic’s lien for the full amount of their claim. The court below probably misled the jury by the instructions given and refused. The objectionable instructions given are, the 7th, 8th, and 9th, given on the court’s own motion, and the 3d and 5th given at the request of the defendant. And the instruction refused, which should have been given, is the 3d asked for by the plaintiffs. It would have been proper for the court to instruct the jury to find in favor of the plaintiffs’ mechanic’s lien for some amount, and we think it would have been proper for the court to have designated the amount as $599.48, with interest. Where a debtor owes his creditor several debts, we think the rule for the appropriation of payments is about as follows: when the debtor makes a payment, he may apply it .to any one of the debts he chooses; but. if he does not make the application, then the creditor may do so; but if neither makes any such application, then the law will make the application in the manner which is most equitable; and in doing so, the law will generally apply the payment to the oldest debt, or to the earliest items of the same debt, or to a debt which is due in preference to one which is not due; and generally, where one debt is secured and the other is not, the law will apply the payment to the debt which is not secured. (See Phillips on Mechanics’ Liens, ch. 25, §287, et seq., and cases there cited; and also, see cases cited in brief of counsel for plaintiffs in error.)
As we have before stated, we think the verdict with reference to the mechanic’s lien, is clearly against the evidence in the case and the law of the case; and therefore we think the court below erred materially in refusing to set aside the verdict, and in refusing to grant to the plaintiffs a new trial. A proper motion was made to the court for that purpose, and the court overruled the motion. Taking the most unfavorable view of the evidence for the plaintiffs — supposing that everything in the evidence unfavorable to them is true, and everything favorable to the defendant is true — and still the verdict is against the evidence. There was no necessity in this case for weighing and reconciling contradictory and conflicting evidence, for there was no such evidence of a material character in the case. All the evidence, so far as it went, and the evidence was sufficient, showed that the plaintiffs had a good mechanic’s lien.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
"Valentine, J.:
This action was commenced in the district coiirt of Leavenworth county on June 29th 1875, during the May term of said court. The defendant failed to answer, or demur, or to make any other appearance in the . case during that term. On August 30th, the May term still being in session, a judge pro. tern, of said court was elected —the regular judge being absent — and the plaintiff obtained a judgment by default against the defendant. On the first Monday of September 1875 a new term of the district court was commenced. On October 16th, during said September term, the defendant made a motion to vacate said judgment, and on October 23d, during said September term, said motion was sustained. The plaintiff immediately made a case for the supreme court, and afterward brought the case to this court. No other proceedings appear to have been had in the.district court. The plaintiff now claims that the court below erred in setting aside and vacating said judgment. This is the only ruling of the court below complained of. The first question arising in the case is, whether this ruling of the court below is at this time reviewable. This exact question, arising in another case, has already been decided in this court. In the case of MoCulloch v. Dodge, 8 Kas. 476, it was held that “an order of the district court setting aside a judgment rendered on a default, and allowing the defendant to answer to the petition of the plaintiffs, is not such an order as may be reviewed by the supreme court while the suit is still pending in the district court.” We do not think that the order vacating the judgment in the present case is reviewable at the present time. The case is still pending in the district court, so far as the record brought to this court shows. The petition in error in this case will be dismissed. '
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
An attempt was made in this case to have the question determined, whether a two-wheeled vehicle, com monly called a sulkey, with an attachment, thereto specially adapting it to the use of a physician and surgeon, and actually kept and used by a physician in the business of his profession, is exempt from seizure and sale. But no bill of exceptions was taken in the court below, and no “case-made” is filed here. The transcript purports to copy an agreed statement of facts filed with the clerk of the court, signed by the attorneys of the parties to the suit; and the journal entry recites that a jury was waived, and the issues in the action submitted to the court upon an agreed statement of facts on file with the clerk. But the statement of facts copied in the transcript is not contained in the journal entry, nor otherwise identified as the agreed facts upon which the court tried the case. In addition, it is not set forth that the court stated separately the findings of fact. Nor was there any motion for a new trial. An agreed statement of facts is simply the presentation of evidence to the court in another and different form than by the introduction of witnesses in person, or the reading of depositions taken in the case. It takes the place of the oral or written evidence intended to be submitted by the parties to the suit. Perhaps, more accurately speaking, it may be said to be the written admissions of the parties to the suit on the trial. Nevertheless, such an agreement is only regarded as evidence for the consideration of the court. Parties may agree to all the facts iu issue by the pleadings; or only a part of the facts in dispute may be agreed upon, and evidence submitted as to the other questions of fact in controversy; but in either case, such an agreement is no part of the pleadings, nor can it be regarded as a part of the record of the court. This court has already decided that affidavits filed and read on a motion in the court below, to become a part of the record so as to be reviewable by the supreme court, must be included in a bill of exceptions, or a case-made; and an agreed statement of facts stands in the same relation to the proceedings in a trial of a case, as affidavits upon the hearing of a motion. The agreed statement of facts contains the evidence upon which the cause is decided. The affidavits contain the evi dence upon which the motion is granted, or denied. Young v. The State, 23 Ohio St. 577; Backus v. Clark, 1 Kas. 303; Altschiel v. Smith, 9 Kas. 90; Porter v. Hall, 11 Kas. 514. Under this view there is no error apparent on the record, and we cannot question the correctness of the judgment of the district court. There is no ease here for our consideration by which we can review the decision rendered.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This is the second time this case has been brought to this court. (Truitt v. Baird, 12 Kas. 420.) This time the case is brought here by the plaintiff below, J. C. Baird; and the principal ground upon which he asks to have the judgment of the court below reversed is the giving of a certain instruction, which reads as follows:
“If you believe from the evidence, that at the time the partnership mentioned in defendant’s answer was entered into, that the plaintiff agreed to furnish certain apple trees and grafts as his portion of the capital stock of said partnership, and that he was to furnish said trees and grafts at the price they were selling at in Quincy, Illinois; that plaintiff furnished said trees at a price exceeding their selling-price in Quincy, Illinois; that the defendant not knowing the selling-price in Quincy, and relying on the representation of said plaintiff as to their selling-price accepted them as so much capital stock at such over-price, the defendant will be entitled to recover one-half the difference between the actual selling-price of the trees in Quincy, and the price at which they were put into said partnership.”
The ground upon which it .is claimed that the giving of this instruction was erroneous is as follows: The defendant’s answer alleged that the selling-price of said apple trees, and of such apple trees, at Quincy, Illinois, in the spring of 1870, was $35 per thousand. The evidence showed that the plaintiff actually paid for said apple trees at Quincy only $32.50 per thousand. The instruction, it is claimed, told the jury in effect, that they might find what the selling-price of said trees was in Quincy, in accordance with the evidence, without regard to the pleading. That is, it is claimed that said instruction told the jury that they might find that the selling-price of said apple trees in Quincy was only $32.50 per thousand, although the defendant had admitted and alleged in his answer that said selling-price was $35 per thousand. Now it is not certain that this instruction is open to. such criticism; for it was given along with other instructions, and these other instructions stated precisely and exactly what the issues were, and what the defendant actually did state in his answer. What construction the jury put upon said instruction, and what they found was the selling-price of such apple trees in Quincy, we have no means of determining. The evidence would have sustained a finding of any price from $32.50 per thousand, which the plaintiff actually paid for said trees, up to $50 per thousand, the price at which the plaintiff actually furnished them to the defendant. The ordinary selling-price of such trees at said place was probably about from $35 to $40 per thousand at that time. There were 10,000 of the apple trees, and one-half the difference of the value of the trees at $32.50 per thousand, and $35 per thousand would be $12.50, and the giving of said instruction may possibly have made a difference in the verdict of the jury to this amount.
The jury found a general verdict in favor of the defendant. The defendant then moved the court to allow him to amend his answer so as to allege that the selling-price of said trees at Quincy, Illinois, was only $32.50 per thousand, instead of $35 per thousand, as he had formerly alleged, and the court sustained the motion, and the amendment was so made. The plaintiff claims that this was also error. The plaintiff then moved the court for a new trial, which motion was overruled, and this is also assigned for error. The court rendered judgment in favor of the defendant and against the plaintiff for costs, which is also claimed to be erroneous. It will be seen that all the errors claimed are founded upon the supposed error in giving said instruction. Now for the purposes of this case we shall assume that said instruction is open to the criticism placed upon it by the plaintiff, and that under it the jury found that the selling-price of said apple trees at Quincy was only $32.50 per thousand; and with these assumptions, was there any substantial error committed by the court below? We think not, although we think it was irregular for the court to give the instruction before said amendment was made, or before any suggestion or order that it might be made. A court should generally confine its in structions strictly within the issues made by the pleadings. Probably the court so intended in this very case, but inadvertently used language that will bear a different interpretation. The defendant should have made his amendment before the instruction was given. But still, the giving of the instruction first, and the making of the motion afterward, even if irregular does not infringe upon any substantial right of the plaintiff. No existing issue was changed by said amendment. No new issue was presented. But the same issue — which was, what was the selling-price per thousand at Quincy, Illinois, in the spring of 1870, of apple trees such as plaintiff furnished to the defendant for their said contemplated partnership — still remained, as shown by the pleadings, after the amendment. And the question, what was the price of said trees, was one of the principal questions litigated in the case, and it would seem from the record that both parties introduced about all the evidence they could upon this question. The plaintiff certainly could not have been misled in this case. In this state the district court may permit an amendment to be made to any “ pleading, process, or proceeding” “before or after judgment;” and where “such amendment does not change substantially the claim or defense,” there is no limitation upon the power of the court to allow such amendment except the requirement that the amendment must be made “in furtherance of justice.” (Gen. Stat. 655, §139; National Bank v. Tappan, 6 Kas. 456; Prater v. Snead, 12 Kas. 447.) And “no variance between the allegations in a pleading, and the proof, is to be deemed material, unless it have actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled; and thereupon the court may order the pleading to be amended, upon such terms as may be just.” (Civil code, § 133.) And “when the variance is not material, as provided in the last section, the court may direct the fact to be found, according to the evidence, and may order an immediate amendment, without costs.” (Civil code, §134. See also, Mo. Valley Rld. Co. v. Caldwell, 8 Kas. 244.) We think said amendment was allowed “in furtherance of justice.” At least, we cannot say that it was not so allowed. Besides, it has often been held by this court, that the district court is clothed with considerable discretion in granting amendments. We think the amendment was properly allowed under § 139 of the code.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Motions to dissolve certain injunctions were argued before Hon. W. P. Campbell, district judge of the 13th judicial district. The motions were taken under advisement, and a few days thereafter word was sent by the judge to the counsel for plaintiff advising him of the overruling of the motions. This information was conveyed to the counsel for defendant, one of whom wrote and forwarded the following letter:
Winfield, Cowley County,Kansas, June 26,1876.
Hon. W. P. Campbell — Dear Sir: Mr. Hackney this evening informed me that he had received a letter from you stating that you had overruled the motions to dissolve those injunctions. I can hardly believe that such is the fact, for it is directly contrary to every principle of law governing injunctions, and everybody knows it, I believe. Consequently we send herewith orders dissolving said injunctions. But if you have concluded to overrule said motions, as Hackney says, you will please allow our exceptions to each and every of your rulings, and allow us time to make and file our case in supreme court, which we will do as quickly as it can be done; for it is our desire that no such decisions or orders shall stand unreversed in any court we practice in. Also, fix terms for staying orders. Yours respectfully,
Pryob, Kager & Pryob.
The judge on the receipt of this letter construed it as a contempt — issued his warrant for the arrest of the writer, and after a hearing adjudged him guilty of contempt, fined him fifty dollars therefor, and suspended him from practice in the courts of that district until the fine should be paid. And the question presented for our consideration is, whether this ruling and order of the judge shall be set aside, or permitted to stand. It appears from other testimony in the case, as well as from the intimations in the letter, that no orders had actually been signed. Notice of his conclusions had simply been given by the judge, and the attorneys requested to prepare the formal order. The matter was therefore still pending before him.
Upon this we remark in the first place, that the language of this letter is very insulting. To say to a judge that a certain ruling which he has made is contrary to every principle of law, and that everybody knows it, is certainly a most severe imputation. The learned counsel for appellant says in his brief:
“There is nothing in Mr. Pryor’s letter to Judge Campbell that is insulting, contemptuous, or even the least disrespectful. Mr. Pryor simply tells the judge, in a plain, matter-of-fact way, that he has committed an error of law in his decision, if such decision is as has been represented to him, and in that event requests that his exceptions thereto may be allowed, to the end that he may have an opportunity of presenting the matter to the supreme court for .review. There is no reflection upon the motives of the judge in rendering such decision; or imputation upon his integrity; nothing in fact to which, in the light of reason and fairness, any possible intention of contempt can be attached. In the warrant issued for the arrest of Mr. Pryor, the judge states that the letter was written for the purpose of ‘insulting, abusing, and intimidating’ him. There is nothing insulting in the letter — unless it is an insult to this judge for an attorney to disagree with him upon a question of law; nothing abusive about it, unless it is the unpardonable temerity of the expressions that evidence the dissent on the part of the attorney from the exposition of the law by the judge; nothing about it calculated to ‘intimidate,’ unless it is the statement that the disputed question will be referred to the supreme court for review.”
We cannot concur in this construction of the letter. It is not merely an assertion of a difference of opinion, but a charge that he has decided in a way that he as well as everybody else knew to be wrong. To say to a judge that his ruling is contrary to every principle of law, may be simply a reflection upon his intelligence; but to couple with it an assertion that everybody knows it, is clearly an imputation upon his integrity. How can a judge be honest, and yet decide contrary to that which he as well as all others knows to be the law ?
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. Certain privileges attach to him by reason of such official position. He may in the trial of cases use language concerning witnesses, and parties, and all matters and things in issue, which elsewhere and under other circumstances would be libelous. By virtue of this privilege, we often hear from the lips of counsel in argument, or read in the briefs filed in proceedings in error in this court, the most severe animadversion and criticism upon the conduct and rulings of the courts from which the proceedings are brought. They have the same right of criticising the ruling and conduct of those courts in proceedings pending here, that they have in those courts of criticising the actions and conduct under review there. In other words, the independence of the profession carries with it the right freely to challenge, criticise, and condemn all matters and things under review and in evidence. But with this privilege goes the corresponding obligation of constant courtesy and respect toward the tribunal in which the proceedings are pending. And the fact that the tribunal is an inferior one, and its rulings not final and without appeal, does not diminish in the slightest degree this obligation of courtesy and respect. A justice of the peace before whom the most trifling matter is being litigated, is entitled to receive from every attorney in the case courteous and respectful treatment. He is pro hae vice the representative of the law, as fully as the chief justice of the United States in the most important case pending before him. A failure to extend this courteous and respectful treatment, is a failure of duty; and it may be so gross a dereliction as to warrant the exercise of the power to punish for contempt. Now as we have said, the language of the letter is insulting. It would be so regarded outside of judicial proceedings, and in the intercourse of gentlemen. To charge another with knowingly doing an illegal act, would always be regarded as an imputation to be resented. Change the circumstances a little: suppose in a public trial in the court-house, after a ruling had been made, an attorney in' the case should say to the court: “That ruling is not the law, and your honor knows it.” Who would doubt that the court might rightly treat such language as contempt, and punish it accordingly? Yet practically that is this case. The fact that in the case supposed, others are listening, and hear the words,.and in this the language reaches the judge alone, does not change the quality of the act. It will be borne in mind that the remarks we have made apply only while the matters which give rise to the words or acts of the attorney are pending and undetermined. Other considerations apply after the matters have finally been determined, the orders signed, or the judgment entered. For no judge, and no court, high or low, is beyond the reach of public and individual criticism. After a case is disposed of, a court or judge has no power to compel the public, or any individual thereof, attorney or otherwise, to consider his rulings correct, his conduct proper, or even his integrity free from stain, or to punish for contempt any mere criticism or animadversion thereon, no matter how severe or unjust. Nor do we wish to be understood as expressing any opinion as to the power to punish others than attorneys and officers of the court, for language or conduct even while the matter is pending and undetermined. Whether the same rules and considerations apply to them or not, we do not care to inquire. Such is not the case before us; and to this case alone do our remarks apply.
We remark again, that a judge will generally and wisely pass unnoticed any mere hasty and unguarded expression of passion, or at least pass it with simply a reproof. It is so that, in every case where a judge decides for one party, he decides against another; and ofttimes both parties are beforehand equally confident and sanguine. The disappointment therefore is great, and it is not in human nature that there should be other than bitter feeling, which often reaches to the judge as the cause of the supposed wrong. A judge therefore ought to be patient, and tolerant of everything which appears but the momentary outbreak of disappointment. A second thought will generally make a party ashamed of such outbreak, and the dignity of the court will suffer none by passing it in silence. On the other hand, a little thing which is properly unnoticed once, may by its repetition require notice and punishment. It is but a little matter to whisper a single time in the presence of a court in session; but if repeated, and the monitions of the court disregarded, it may become not merely the privilege, but the clearest duty of the court to punish for contempt. So an attorney sometimes, thinking it a mark of independence, may become wont to use contemptuous, angry, or insulting expressions at every adverse ruling, until it becomes the court’s clear duty to check the habit by the severe lesson of a punishment for contempt. The single insulting expression for which the court punishes may therefore seem to those knowing nothing of the prior conduct of the attorney, and looking only at the single remark, a matter which might well be unnoticed; and yet if all the conduct of the attorney was known, the duty of interference and punishment might be clear. We make these suggestions, not as intimating that such has been the prior conduct of the attorney in this case, for we neither know nor have heard anything outside of this single matter which reflects at all upon him. We do it simply to indicate that the wisdom or necessity of the court’s action is not always disclosed by the single matter apparent in the record, and that therefore, in a matter like this, involving personal conduct toward the court, a large regard must be paid to its discretion. If the language or conduct of the attorney is insulting or disrespectful, and in the presence, real or constructive, of the court, and during the pendency of certain proceedings, we cannot hold that the court exceeded its power by punishing for contempt. See generally on the subject of contempts, 2 Bishop on Cr. Law, 5th ed, ch. 12, §242, and following, and cases cited; 4 Blackstone, 283; Com. v. Dandridge, 2 Va. Cases, 408.
We remark finally, that while from the very nature of things the power of a court to punish for contempt is a vast power, and one which in the hands of a corrupt or unworthy judge may be used tyrannically and unjustly, yet protection to individuals lies in the publicity of all judicial proceedings, and the appeal which may be made to the legislature fot proceedings against any judge who proves himself unworthy of the power intrusted to him.
The conclusion then to which we have come is, that the order of the district judge must be affirmed. It perhaps should be added that in the long answer made by the appellant to the order to show cause why he should not be punished, he tenders no apology, and expresses no regret for the language used, but insists upon his right to use it. Order affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Albert Perry against N. N. Jones, for attorney-fees. The plaintiff’s petition sufficiently stated a cause of action, alleging among other things that the plaintiff was employed by the defendant, “by A is agent John H. Jones, who, as such agent of the defendant, had full authority so to do.” The defendant answered to this petition by filing a general denial, without any verification. Upon the pleadings as thus made up, the parties proceeded to trial. A jury was impanneled, and the plaintiff stated his case to the jury. The defendant then asked the court for leave to verify his answer by affidavit so far as the same denied the said agency of said John H. Jones. The court granted such leave upon the condition that the plaintiff might if he chose continue the case till the next term of the court, at the defendant’s costs. The plaintiff however declined to continue the case, and excepted to the ruling of the court. The answer was then verified as permitted by the court, and the parties then proceeded with the trial.
We think there was no error in the above ruling of the court. The verdict and judgment finally rendered in the case were for the defendant, and this we think was also right, whether any error intervened during the trial or not. There was a total failure in the evidence, as we think, upon an essential fact in the case. The preponderance of the evidence, as we think, shows that the plaintiff was employed to assist in the defense, as an attorney-and-counselor-at-law in the case of C. C. Hyatt against X. K. Stout, and that he was so employed by John H. Jones; but there was no evidence tending to prove that John H. Jones had any authority from the defendant N. N. Jones to make such employment. The action in which the plaintiff was then employed was one for the recovery of certain real estate. The defendant was not a party to the suit, and had no interest in the property involved in the controversy. Nor could it make any possible difference to him, which was adjudged to own the land, Hyatt, or Stout. It is true, the defendant had an interest in the legal questions involved in the controversy, for he had land which he held by a title almost precisely like the title by which Stout claimed the land in controversy. That is, the decision of the legal questions involved in the Stout case, might be uáed as precedents in the decisions of questions affecting the title to land which the defendant owned, not involved in the Hyatt-Stout controversy. But in no other way was the de fendant interested in the Hyatt-Stout controversy. The decision in the Stout case could not directly affect any o.f the defendant’s legal rights; nor could the judgment to be rendered in that case be used as evidence for or against him. As the defendant was interested in the legal questions involved in the case, it would of course have been very proper for him, with the consent of Stout, to have employed counsel to assist Stout. But of course he could not employ counsel to assist Stout except with the consent of Stout. Stout had the absolute and exclusive right to control and manage the defense of that case, and the defendant had no right whatever in the'case except with the consent of one of the parties. No inference can therefore be drawn from the mere fact that counsel were employed in the case, that the defendant employed them, or that he agreed to pay anything for their services. There is no room in such a case for implying or presuming a contract on the part of the defendant to pay any portion of the counsel-fees.
But returning to the question of the agency of John H. Jones. There was evidence showing that John H. Jones was an agent for the defendant N. N. Jones for the. purpose of managing N. N. Jones’ property in Doniphan county. There was a power-of-attorney introduced in evidence, showing that the defendant authorized John H. Jones “to donate to the state of Kansas all streets and alleys in the Normal addition to the town of Troy, in said state of Kansas; also to sell any lots or blocks in said Normal addition, and execute bonds for deeds; also to collect rents and other debts owing to me [N. N. Jones] in the state of Kansas.” There was also evidence introduced showing that John H. Jones had the general management and control of the real estate of the defendant situated in Doniphan county; that he had previously purchased a portion of the same for the defendant; that he rented the same, and collected the rents therefrom, and paid the taxes thereon, But there was not a particle of evidence introduced or offered, that tended to show that any express authority, was ever given by the defendant to John H. Jones to employ an attorney in the Hyatt-Stout case, or indeed in any pther case instituted prior to the determination of the Hyatt-Stout case; and the said John H. Jones never did employ an attorney for the defendant in any case prior to that time. Express authority however lias since that time been given to said John H. Jones to employ a particular attorney for the defendant in this and one other case, upon certain express conditions, in both of which cases the defendant was a defendant, and directly interested in the subject-matter of the litigation. And there was no evidence introduced or offered tending to show that the defendant ever ratified the employment of the plaintiff in said Hyatt-Stout case. We would therefore think, that the plaintiff wholly failed to make out his case. A general authority given to manage the defendants property can hardly be’ considered as an authority to employ counsel in a case concerning some other person’s property. This general authority however was not given by any express words. It is merely inferred from the acts of the parties. The only express authority shown to have ever been given was that given by said power-of-attorney.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This is a proceeding to review an order of the district court overruling a motion to set aside, and sustaining a motion to confirm, a sale of real estate. These questions are presented by counsel for plaintiff in error in his brief. First: It is insisted there was a failure to make due publication of the notice of sale. The notice was advertised in the Clay County Dispatch. An affidavit of the attorney of the defendant was filed, stating that he had examined eight or ten copies of one of the issues of said paper in which this notice was published, and that a large portion of the notice, including the description of the Pr0Perty, was illegible. On the other hand, the return of the sheriff shows that he caused “ public notice of the time and place of sale of said lands and tenements to be given, over thirty days before the day of sale thereof, by advertising in the Clay County Dispatch,” etc. The publisher of said paper attaches his affidavit to the return, stating that the notice “ was published for five weeks in said newspaper,” giving a copy of the notice, and including in his affidavit the issue of the paper referred to in the prior affidavit. A like affidavit was also afterward filed by the foreman of said paper. Upon these facts we think the court properly overruled this objection. Every one knows that it is no uncommon thing to see a few lines in a newspaper blurred, or otherwise rendered illegible. Sometimes the paper as it goes into the press is not entirely smooth; sometimes the ink fails on a portion of the type; and so there may be in every issue a few copies in which any given notice is illegible. But to hold that thereby the publication has wholly failed, would not be tolerable. It would render titles resting on judicial proceedings altogether too insecure and uncertain. And it must be remembered that in order to make a publication in a newspaper valid, it is not essential that any given number of copies of a single issue should be printed. The law does not say that 100, or 500, or 1000 copies should be struck off, in order to make a valid publication. Doubtless the law contemplates the regular edition of the paper; and if the notice was omitted from all but a single copy or two, the courts might be constrained to interfere. But no such case as that is here presented. All that can be said is, that in a few copies of one issue the notice was partially blurred, and thereby rendered to that extent illegible.
A second proposition is, that defendant had personal property out of which the debt could have been made. The sheriff returned, “No goods." And here again, to overthrow the return, we have only the affidavit of defendant’s attorney. This affidavit stated that at the time of the issue and levy of said execution the sheriff who made the levy and the defendant were partners in a livery stable, “in which they held themselves out as joint-owners of a large amount of personal property, one-half of which, or the interest of the defendant in said property, consisting of horses, buggies and harness, which was subject to execution, was more than sufficient to satisfy said judgment-debt as aforesaid, as affiant believes.” It also stated that affiant believed that defendant had at all times since the issue of execution personal property subject to execution sufficient to satisfy said judgment. This objection was also overruled. The affidavit proves nothing. It does not state facts, but only affiant’s belief. City of Atchison v. Bartholow, 4 Kas. 124. Even if defendant was apparently the owner of a half-interest in this stable, the sheriff, his partner, may and doubtless did know the actual facts. He may have known that defendant was only the apparent, and some one else the real owner, or that it was incumbered to its full value. At any rate, no mere “ belief” of the defendant’s attorney can overthrow the 0|gcja| return 0f the officer. Again, it is objected that the affidavit of the foreman of the newspaper was taken before the register of deeds. This was sufficient. Gen. Stat., p.598.
Finally, it is contended that at the time of the hearing of the motion it did not appear that the publication was in the issues of the paper immediately preceding the day 0f gale, and that the court improperly made a conditional order of confirmation. The facts are these: The return of the sheriff showed that he received the execution March 20th, that the sale was on May 1st, that he gave public notice over thirty days before the day of sale by advertising in the Clay County Dispatch. The affidavit of the publisher attached to the return stated that the notice was published for five weeks in said newspaper, viz., Nos. 2, 3, 4, 5. and 6, of Vol. 3,1875, but did not give the dates of issue of these several numbers. The court on examination stated that it did not distinctly appear that these five issues of the paper were the last prior to the day of sale, and made an order confirming the sale on the filing of an affidavit that the advertisement was immediately preceding the sale. Court then adjourned, and four days thereafter the required affidavit was filed. Conceding the irregularity of such a proceeding, we do not see how the defendant was prejudiced' thereby. Upon the face of the papers as they now stand, the proceedings in the sale were regular, and confirmation ought to be made. If we were to set aside the order of confirmation, as premature, it would be simply to have it entered at the succeeding term. How then is the defendant injured in his substantial rights? We see therefore nothing to justify a setting aside of the order of confirmation, and it will be sustained.
Horton, C. J., and Valentine, J., concur, and hold, that upon the record, the proof of the notice of sale was sufficient at the time of the confirmation, and independently of the affidavit filed, under the requirement of the court, subsequent to the hearing of the motion to confirm.
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The opinion of the court was delivered by
Brewer, J.:
The only question presented is, whether the action was triable at the term at which it was tried; and that depends upon whether the issues were made up ten days before the term. The statute of 1871 was in force, a statute we have recently had occasion to examine in the case of Gapen v. Stephenson, just decided; {ante, p. 140.) In that case we held that the statute referred to , # the time the issues were actually made up, and not to the time they ought to have been made up. And it makes no difference whether they were so made up by the filing of the pleading before, or after, the times fixed by statute. If the issues were actually made up in this case, ten days before the term, the action was triable; otherwise not. The term commenced September 6th. The reply was filed August 27th. Including the first day of the term, and the day upon which the reply was filed, there were eleven days; excluding both, nine days; while including one, and excluding the other, would give the requisite ten days. The language of the statute is, “are made up ten days before the term.” In other words, if ten days before the term the issues are made up, the action is triable. And it seems to us, that in computing these ten days, the first day of the term should be excluded, and the day in which the issues were made up by the filing of the reply, included. This appears to be in accordance with the authorities. In the case of the soldier’s voting bill, 45 New Hamp. 618, it was held, “that in the computation of time from a date, or from the day of a date, the day of the date is to be excluded; but that where a computation is to be made from an act done, or from the time of an act, the day in which the act is done, is to be included.” To like effect are the cases of Jacobs v. Graham, 1 Blackf. 391, and Chiles v. Smith’s Heirs, 13 B. Monroe, 461. In the latter case the court says :
“ It was decided by this court in the case of Woods v. Patrick, Har. 457, that in calculating the thirty days, which were required by the statute to intervene between the lodging of the order and the commencement of the next term, to entitle the party to a change of venue, the day of depositing the order should be included. So where process is required to be served a certain number of days before the term, the day on which the process was executed is reckoned as one of the days in the computation of the time.”
Applying this rule, and the day of filing the reply and joining the issue, the day of an act done will be included. In Walsh, Trustee, v. Boyle, 30 Maryland, 266, a distinction was noticed. In that case, by order of the court, testimony was to be taken upon giving one day’s notice. Notice was given on the 28th, and the testimony taken on the 29th, and the notice was held sufficient. The court says, “Now it. is true that when a statute or rule of court requires notice to be given of a certain number of dear days, both the day on which the notice is served and the day of the proceeding, must be excluded. King v. Justices, &c., 3 Barn. & Ald. 581. It has also been held that a statute requiring fourteen days at least, means fourteen clear days, and the same rule must be adopted. The Queen v. The Justices of Shropshire, 8 Adol. & Ellis, 173; O’ Connor v. Towns, 1 Texas, 107.” But we take the law to be well settled, however, in matters of practice, where any particular number of days not expressed to be clear days is prescribed, the rule in regard to the comPul'ati°n of time, is, not to exclude both the day on which the notice is served, and the Jay on which the act is to be performed, but to exclude the one and include the other. This distinction may be important in determining when depositions must be filed, for the statute reads that they “must be filed at least one day before the day of trial.” Gen. Stat. p. 698, § 361. In Vairin v. Edmonson, 5 Gilman, 270, where a section of the attachment-act required that sixty days should intervene between the first publication of notice, and the term of court, the court held that in computing the time the day of the first publication of notice was to be excluded, and the first day of the term included. Doubtless a correct result was thus reached, but' it occurs to us that the ruling would have been more in harmony with the course of decision if the day excluded had been included, and the day included excluded. In Black v. Johns, 68 Penn. St. 83, it was held that “a service of the 28th of October, the return-day being the 7th of November, is ten days before the return-day, that day being left out of the count.” The spirit, if not the letter of our statute sustains this computation. It provides that “the time within which an act is to be done shall be computed by excluding the first day, and including the last.” Gen. Stat., p. 771, § 722. If the statute required ten days after a term of court, we should exclude the last day of the term and include the day of filing. We compute forward in that case, because the close of the term is the point from which the computation dates. In the case at bar, for like reason, we compute backward. The commencement of the term is the starting point, and we measure from that to determine how long before, the issue has been joined. In Dutton v. Hobson, 7 Kas. 196, cited by counsel for plaintiff, we held that a summons could not regularly be served on the return-day, for the statute says before the return day.” That excluded the return-day; so, “before the term,” excludes the first day of the .term. But computing from the term, as the starting point, and omitting the first day of the term and including the day of the act, the day of filing the reply and making up the issue, and we find that the issues were made up ten days before the term.
The judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Action on a promissory note. Defense, failure of consideration, and counterclaim. A demurrer to the answer was sustained, and this is the alleged error. The allegations of the answer were, that Parks was residing on a quarter-section of the Sac-and-Fox lands; that shortly after the note and deed hereinafter referred to, by treaty between the United States and the Sac-and-Fox Indians these lands became subject to preemption by actual settlers; that Parks quitclaimed all his right, title and interest in said lands to Bell for $2,000, of which $1,500 were paid in cash, and for the balance the note in controversy given;. that the value of all improvements, including buildings, fences, breaking, growing crops, etc., on the lands, was not to exceed $700, and that the remainder of said $2,000 was given for the pretended title of Parks; that the title was and still is in the government of the United States, and that Parks had no other right, title or interest in said lands than such as he had acquired by settling thereon, and that he had no right to sell of dispose of any interest therein over and above the improvements.
Was the demurrer rightfully Sustained? We think so. It is not claimed that there was any fraud or deception. Parks made no misrepresentations as to the extent of his title and interest. Bell knew exactly what he was buying. Their contract was based upon full knowledge by each. Parks had some interest in the premises, as the statute says he may lawfully .contract to sell. He had such an interest in the improvements, and also had actual and.lawful possession, and the exclusive right to purchase the land. This interest he sold and conveyed to Bell. Bell agreed to pay $2,000. therefor; and whether he paid too much or too little is entirely immaterial. As there is no allegation to the contrary, it must be presumed that possession was delivered, and that he received therefore all that he bargained for. The contract was not illegal, nor against public policy. And he must abide by his contract. Moore v. McIntosh, 6 Kas. 39, is in point rather than Vickroy v. Pratt, 7 Kas. 238, or Brewster v. Madden, 15 Kas. 249.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Plaintiff sued for work done in constructing defendant’s road-bed, and to foreclose a mechanic’s lien thereon. A demurrer to the petition was filed by defendant. Before any hearing was had, this agreement was entered into:
“It is hereby agreed, that a judgment may be entered in the above-stated case in favor of the plaintiff for the sum of seventy-three thousand six hundred and sixty-one dollars. And it is also hereby agreed, that the judgment so entered will be entitled to a credit of the amount which has been paid to sub-contractors and laborers of the said plaintiff (Edward Burgess) by the defendant on that part of the Memphis, Carthage & Northwestern railroad between Minersville, Missouri, and Oswego, Kansas, when the exact amount therefor has been ascertained, and proper vouchers therefor furnished. This agreement is not to authorize the establishment of the lien prayed for in the petition.”
In pursuance of this agreement a money-judgment was entered against the defendant. At a subsequent term, plaintiff appeared, and moved for a decree of foreclosure of the mechanic’s lien. This motion was overruled, and this ruling is the alleged error. Two questions are presented. Did the laws of Kansas, at the 'time, warrant a mechanic’s lien on a railroad? If they did, was the plaintiff under the pleadings and stipulation entitled to a decree of foreclosure? In reference to the first question, this is the proposition of the counsel for plaintiff:
“The statute of 1865, pp. 105, 106, Laws of Kansas, gives an express lien upon railroads to the parties who construct them, do work upon them, or furnish materials to construct them. If this law of 1865 is not repealed by the revised laws of 1868, then the lien of plaintiff upon the road-bed of said railroad constructed by him, is perfect, and judgment on the lien should have been entered for him at the spring term of 1875, May 21st, when the motion was made by plaintiff for a decree foreclosing the lien upon the road-bed.”
Was the law of 1865 repealed? The legislation of 1868, known as the general statutes, was intended as a revision of all the laws of a general nature. The legislature of 1867 provided for the appointment of a commission “ to revise and codify the civil and criminal codes of procedure, and all laws of a general nature of this state.” It was made the duty of the commissioners “to make a complete compilation of the laws of the state to the present session of the legislature, its acts included, omitting all such acts or parts of acts as have been repealed or amended.” Laws 1867, p. 150, §§ 1 and 5. The commissioners were appointed, did the work, and reported to the legislature of 1868, by which their report was in the main adopted. The last act in the general statutes is entitled “An act concerning the general statutes.” The first section provides what shall constitute the general statutes, to-wit, all the acts revised by the commissioners and reported to and enacted by the legislature, all general acts of that legislature, and certain acts of preceding legislatures which are specially named. Section 2 then reads, that “All other acts of a general nature, embodied or reenacted, in whole or in part, in any of the statutes hereinbefore enumerated, or repugnant thereto, are hereby repealed.” Now the act of 1865 above cited is not among those specially named, is an act of a gen eral nature, and is repealed, or remains in force, according as it is or is not “embodied or reenacted in whole or in part” in any of the general statutes. It will be noticed that this repealing clause specifies “acts,” and refers to statutes as entire-ties, and not to the various matters and subjects embraced in statutes. It matters not therefore how many different subjects or sections are included in the same act, or how independent and distinct those subjects or sections may be, if any one of them is embodied or reenacted in any of the general statutes, the whole of the act from which such section or subject is taken is repealed. Thus, if a statute prior to 1868 contained provisions concerning the place of bringing certain actions, and also provisions concerning the time for bringing such actions, and only those provisions concerning the place were found in the general statutes, the clause we have quoted would operate as a repeal of the entire statute, although it thus left an entire omission of legislation on the subject of the time for such actions. It is a familiar rule, that a statute revising the whole subject-matter of a former one, and evidently intended as a substitute for it, will operate as a repeal of the former statute, although it contain no express words to that effect. Farr v. Brackett, 30 Vt. 344; Giddings v. Cox, 31 Vt. 607; Bartlett v. King, 12 Mass. 537; H. M. Canal Co. v. Chicago, 14 Ill. 336; State of California v. Onkling, 19 Cal. 501. And it is also true, that when a legislature makes a general revision of the laws, its intentions may be as clearly indicated by what .it omits as by what it embodies of laws revised. Here the legislature intended a general revision, and in plain language has declared its will, that the general statutes should contain all the laws of a general nature to remain in force, save and except only those prior general acts whose provisions and sections were wholly ignored in the revision. It is not sufficient therefore to inquire whether the general statutes contain any provisions for mechanic’s liens on railroads. An omission of any such provision would not necessarily leave the statute of 1865 thereon in force. We must also inquire whether any portion of the act of 1865, in which is found the provision concerning such liens, is embodied or reenacted in the general statutes, for if so, the entire act of 1865 is repealed. Neither is it essential that the exact phraseology, or the exact provision of the prior act, be retained in the general statutes, in order to make this repealing section applicable. The idea is this, that if the attention of the legislature had been directed to a prior statute, and it had taken certain portions of it for incorporation into the general statutes, although in so doing it changed the phraseology, or enlarged or restricted the provisions, it thereby manifested its intention to drop from the laws all the remaining portions of that statute. One thing more: an act amending a section of a prior act is, for the purposes of this repealing clause, to be taken as simply a portion of the amended act, and not as an independent statute. In other words, by the amendment the old section is stricken out, and the amended section inserted, and the whole is to be treated as a single statute. It is perhaps not necessary in this case to resort to this rule, for independent of it, and , - . . , i " bavmg regard simply to the amended section alone, the same result will follow. Turning now to the laws of 1865, we find that chapter 44 is an act “for the incorporation and regulation of railroad companies,” and contains some twenty-eight sections, with various provisions bearing upon those general subjects. Section 6 provides for the collection of unpaid installments of stock, and contains no reference to mechanic’s liens. Chapter 45 is an act to amend chapter 44, was approved the day after the approval of the last-named act, and amends only section 6. After providing for the collection of unpaid installments, it adds in the same section these words:
“And any person who shall perform any labor, or furnish any material for the construction, repairing, or altering of any railroad, shall have a lien for the same, in the same manner as though the same were a building, and such lien shall extend to the whole railroad, together with all the real property connected with the road.”
The validity of this portion of the act is challenged by defendant in error, under section 16, of art. 2 of the state constitution. Commissioners of Sedgwick County v. Bailey, 13 Kas. 600. But we do not care to examine that question. It needs but a slight examination to show that many of the provisions of chapter 44 are incorporated into the general statutes, and are to be found in chapter 23 of those statutes. And even as to the single matter of collection of unpaid installments, found in chapter 45, we find in sections 29 and 30 of chapter 23 of the general statutes provisions made in aid of all corporations for the collection of unpaid installments, one of which is the same as one of those named in chapter 45, to-wit, civil action. We think therefore, for the reasons given, not only said chapter 44, but also the amendment to section 6 thereof, found in chapter 45, must be held to be covered by the repealing section of 1868. It should also be stated that the general statutes contain full provisions for mechanic’s liens, so that the general subjects of the incorporation and regulation of railroad corporations, aud of mechanic’s liens, were presented to the attention and consideration of the legislature of 1868, and received such legislation as was deemed necessary.
We see no error in the ruling of the district court, and the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The questions for consideration are, whether a district court, upon a petition in error, can vacate the orders of a board of county commissioners in locating and opening a proposed public highway, when the record fails to show jurisdiction on the part of the board making the orders, where no exception was taken thereto by the party complaining, and no appearance was made by such party in any of the proceedings had before the commissioners; and whether, in this case, upon the record, such want of jurisdiction sufficiently appears?
It has several times been held in this court, that any error apparent in the final judgment of a district court may be corrected by suit in error in this court, although no exception was taken by the party complaining, and no motion made to set aside the judgment. Section 540, Gen. Stat. 1868, p. 735, gives the district court the same authority to re- . , ■, „ vacate, or modify, the final orders of any 7 7 J 7 ^ ^ J tribunal, board or officer exercising judicial functions, and inferior to said district court, as this court hás over the proceedings of district courts, excepting that the words, “for errors appearing on the record,” are not contained in § 540, and are included in the provisions of the code authorizing this court to review the judgments and orders of the district courts. But the omission of these words, although some of the decisions are based thereon, do not seem to us to affect the rule which we have adopted. The logical result of the reasoning contained in the case of Koehler v. Ball, 2 Kas. 160, tends to this conclusion. If the record shows the proceedings had by a board of county commissioners were without authority of law, to simply note an exception to a final order based thereon, would seem to be both unnecessary and valueless. If it be- urged that the district court has no authority to set aside a final order of a board of commissioners, void on its face, as it is not in law technically an order nor a judgment, and cannot therefore be enforced, we answer, that, as it is claimed to be a final order, based upon valid proceedings, and rights are attempted to be acquired thereunder, it is better to give the supervisory court authority to vacate and set aside such void entry, than to remit the complaining party to some other remedy more difficult to himself, and more vexatious to all concerned. The law ought not to favor a circuity of action. Section 540, supra, gives the district court full power to reverse, vacate or modify any final order of a board of county commissioners; and the more irregular and improper the order, the stronger the reason for the exercise of the power conferred.
The facts in this case show, that on July 6th 1874, one Sebastian Wertzberger, and fourteen others, filed a petition with the county clerk of Wabaunsee county to have a certain road laid out. The petition itself did not show that all, or any, of the signers were householders. On the presentation of the petition the following proceedings were had:
“July Session, 1874. — Road petition of Sebastian Wertzberger taken up, and the following persons appointed viewers: J. P. Gleich, Wm. Strasses, and Joseph Hensel, to meet at the house of S. Wertzberger, Friday, August 7th, 1874.”
At the September session of the board of county commissioners for 1874, the following additional proceedings were had, as appears from the journal:
“Report of viewers on Wertzberger road taken up. Report approved, and road ordered opened, and damages allowed as follows, to-wit: M. M. Muhlenbacker, $15.00; Peter Muhlenbacker, $15.00; Margaret Muhlenbacker, $15.00; J. L. Muhlenbacker, $7.50.”
The road was ordered to be laid out through the premises of the defendant in error, J. L. Muhlenbacker; but the record does not show that Muhlenbacker ever appeared before the board of commissioners, or the viewers. A certain written claim for damages, signed “ J. L. Muhlenbacker,” was in the possession of the viewers, and was filed in the county clerk’s- office, but it nowhere appears that the defendant ever signed such claim, or even authorized it to be presented or filed, or that he had any connection therewith.
The district court, upon the hearing of the petition in error of said J. L. Muhlenbacker, “ordered and adjudged that the proceedings and orders of the county board in locating and opening said road as a public highway, be an nulled, vacated, rendered wholly void and of no effect, and that Muhlenbacker have judgment for costs.” The judgment of the court below was correct. The record should have established the fact that there was some finding by the county board that at least twelve of the signers of the petition were householders, or in some way this should have appeared in the case before the board assumed authority to appropriate the property for the road. The fact that the petition was signed by twelve householders of Wabaunsee county, was a jurisdictional one. The legislature has seen fit to require that, before the board of county commissioners of a county can proceed to exercise the authority to locate and open roads, under the law of 1874, ch. 108, a petition signed by twelve householders must be presented. This is a precedent condition. A failure to comply with this precedent condition would make all subsequent proceedings without authority of law. This court has already held, “that it is not absolutely necessary, in order to make the road valid, that the petition itself should show upon its face that the signers are householders.” Willis v. Sproule, 13 Kas. 257. But the record should somewhere show this fact, before the viewers are appointed. It may be.shown by affidavit filed with the county clerk; or it may be shown upon the hearing of the petition, by oral evidence. But some entry or record thereof must be made. In this case, the county board do not seem to have considered the question at all; and in the absence of any showing to that effect, we cannot assume that the petition was signed by twelve householders of the county of Wabaunsee. The general rule applicable to such inferior jurisdictions as boards of county commissioners, is, that in their proceedings they are to be held to the strict limits of their authority, as conferred and prescribed by the statute. When jurisdiction is obtained, of course we should be liberal in reviewing all subsequent proceedings.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by the Atchison, Topeka & Santa Fé Railroad Company to perpetually enjoin the collection of certain taxes. It seems that in 1874 the county commissioners of Sedgwick county, and various school-district boards of said county, levied various taxes on the property within said county, and within said school districts respectively, several of which said taxes are claimed by the plaintiff in this case to be illegal and void. This action was commenced to restrain the collection of such of said taxes as are claimed to be illegal and void so far as the same are levied upon or affect the property of the plaintiff. A temporary injunction was also prayed for in said action, and the same was granted by the court, after a hearing of the application therefor on the petition of the plaintiff, and on an agreed statement of the facts of the case made by the parties. Afterward, and on March 6th 1875, the following act was passed by the legislature, to-wit :
Chap. 8. — An Act to Le&alize a Certain Levy op Taxes.
Be it enacted by the Legislature of the State of Kansas, That all levies of taxes heretofore made by the board of county commissioners of Sedgwick county, Kansas, in the year 1874, be and the same are hereby legalized.
Sec. 2. This act shall take effect and be in force from and after its publication in the Kansas Farmer.
Approved March 6, 1875.— (Laws of 1875, page 6.)
Afterward, the defendant answered, setting up the passage of said act, and also made a motion to dissolve said temporary injunction so far as the same restrained the collection of a certain eight-mill tax levied by the county commissioners for the purpose of meeting a deficit in the county revenue for the year 1873. The only ground upon which said motion was made, was, the passage of said act by the legislature. The court below sustained the motion. The plaintiff excepted, and now brings the case to this court for review.
The only question presented in this court is, whether said eight-mill tax was valid at the time said motion was sustained, and at the time said temporary injunction was dissolved. Involved in this question, however, are these other questions: 1st, Was said eight-mill tax valid when it was levied? 2d, and if not, did it become valid by the subsequent passage of said act? All these questions we think must be answered in the negative. The county commissioners had no power to levy said eight-mill tax. There is no statute which in terms gives them any such power. There was no vote of the people, or the electors, attempting to authorize it. And this power to levy taxes for the current expenses of their county was otherwise exercised and exhausted by levying all the taxes that they had any authority to levy under that power. Under that power they could levy only one per cent, on the value of the taxable property in "'heir county. (Gen. Stat. 294, §181.) And aside from this eight-mill tax they exercised this power to its fullest extent, by levying all the taxes that they had power to levy for current expenses for the years 1871, 1872, 1873, and 1874. Said eight-mill tax was therefore not levied in pursuance of any law, and was therefore void. (Const., art. 11, §4.)
But-was said tax made valid by the subsequent passage of said act of the legislature? We think not. And two reasons may be offered therefor: 1st, The tax was void when levied, not because of any mere irregularity in the tax proceedings, but because the commissioners had no power to levy the same. 2d, the only act or law upon which the supposed validity of said tax is founded, (the curative act of 1875, above quoted,) does not in any manner state the object of the tax. An ir regular'or defective execution of any power or authority may generally be so aided or cured by a subsequent statute passed for that purpose, and having a retrospective operation. But a want of power or authority can seldom if ever be so aided or cured. (12 Kas. 305.) Where- the taxing officers have power to. tax, but exercise that power irregularly or defectively, the legislature may generally make the tax valid by subsequent legislation. But where the taxing officers have no power to levy the particular tax in question, but attempt to do so, the legislature can seldom if ever make such a tax valid. We have already given the act of the legislature under which it is claimed said tax is validated. Let us now quote a section of the constitution relating to' the levy of taxes, as follows:
“Sec. 4. No tax shall be levied except in pursuance of a law, which shall distinctly state the object of the same, to which object only such tax shall be applied.” (Const., art. 11, §4.)
Now the tax in question in this case was not only not levied “in pursuance of a law,” but it is not sustained by any law-which “distinctly states the object of the same.” This we think is fatal to the tax. It is possible however that it is not necessary that the curative act should in all cases state the object of the tax. When a tax is .levied in pursuance of a law, and that law itself distinctly states the object of the tax levied under it, it would seem that that should be sufficient. If for some defect or irregularity in the tax proceedings it were thought that the tax were illegal and void, or voidable, and therefore a curative act should be passed for the purpose of validating such tax, it would probably not be necessary in such a case that the curative act should also distinctly state the object of the tax. But still, it is probably necessary in all cases that every tax should be sustained by some law which should distinctly state the object of such tax. This would seem to be necessary under said § 4 of article 11 of the constitution. Now the tax in the present case is sustained by no law except said curative act, and that act does not state the object of any tax. Said act is, according to the title of the act, “An act to legalize a certain levy of taxes; ” but according to the body of the act it is an act to legalize “all levies of taxes heretofore made by the board of county commissioners of Sedgwick county, in the year 1874;” and neither the object of the “certain levy of taxes,” nor the object of the “all levies of taxes,” is anywhere stated in the act. Now it may be, that there is some levy of a tax in Sedgwick county for the year 1874 which is or was defective, to which this act applies, and which this act cures, but it cannot be the levy of the tax now under consideration.
The judgment of the court below must therefore be. reversed, and cause remanded for further proceedings in accordance with this opinion.
Brewer, J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Hokton, C. J.:
On April 29th 1857, John H. Likins and John W. Boyd, both of them residing in the city of St. Joseph, state of Missouri, entered into a partnership (with the firm-name of Likins & Boyd,) for the purpose of transacting a general real-estate business, such as selling real estate on commission, buying, selling and locating land-warrants, paying taxes, and such other transactions as usually pertain to the real-estate business. There were no written articles of partnership, and at the formation of the partnership there was no agreement that the firm should buy, sell, and speculate in lands on their own account. This partnership continued uutil the death of Mr. Likins, which occurred at St. Joseph, March 13th 1860, and the partnership books have been in the possession of Mr. Boyd ever since the death of Likins. In June 1857, the firm purchased several tracts of land, including the tract in controversy, in Brown county, Kansas, known as the Iowa Trust Lands, which were sold at a government trust sale, at Iowa Point, for the benefit of the Iowa Indians. These lands had been settled upon by squatters, each of whom had the right to purchase his quarter-section. The firm of Likins & Boyd had made arrangements before the sale with several of these squatters, or claimants, for a transfer of their lands, or the certificates therefor, at a price then agreed upon. Likins attended the sale at Iowa Point in behalf of the firm, and made the purchase from the claimants, they bidding off their lands and then assigning the certificates of purchase in blank. These lands were bought for the firm, and paid for with the money of the firm, and they were entered on the books of the firm, under the heading of “stock account,” as assets of the firm. Sylvester B. Stines was the claimant of the quarter-section in controversy in this action, and the firm paid him $452 therefor, and the same was entered in “stock account.” This'quarter-section of land was conveyed by letters patent of the United States, and in the individual name of John PI. Likins, as well also as several other of the tracts purchased in said sale, none of which were patented in the name of Likins & Boyd, nor in the individual name of John W. Boyd; and the legal title of the quarter-section in controversy stood in the name of John H. Likins at the time of his death. The patent bears date, October 1st 1858. Mr. Likins afterward bought some lands for the firm, and took deeds in the individual name of John W. Boyd; and Boyd bought some lands for the firm, and took the title in the name of John PL Likins, so that the principal part of the partnership land stood in the name of one or the other of the partners individually, though some stood in the name of Likins & Boyd. The firm treated these lands standing in the name of each partner individually as partnership stock, and the firm paid the taxes on them as such.
The patents for the Iowa trust lands were kept in the office of Likins & Boyd, and the defendant Clark produced them at the trial, the plaintiff never having had possession of them. John W. Boyd, the surviving partner, who resided in St. Joseph, Missouri, and was never a resident of Kansas, administered the partnership effects in the state of Missouri. He did not include the Kansas lands in said administration. His first settlement in the probate court of Buchanan county, Missouri, was filed July 3d 1861; the second February 12th 1864, and the third June 7th 1865, the last settlement showing balance due Boyd, administrator, of $3,162.92. Rich Likins was the administrator of the individual effects of John H. Likins, in Missouri. Letters of administration on the. estate of John H. Likins, were granted to John Stewart, of Doniphan county, Kansas, on May 5th 1860, by the probate court of said county. Thereafter certain proceedings were had in the said probate court, which resulted in the sale of all the right, title and interest to all lands which John H. Likins, deceased, had at the time of his death, in Brown, Doniphan, and Atchison counties, in the state of Kansas. The sale of the,property in this controversy took place at the court-house door in Hiawatha, the county-seat of Brown county, March 5th 1861. The price paid was $126. The land was bid off by John W. Boyd, for John M. Vimont, as trustee of Virginia M. Boyd. John M. Vimont was the son-in-law of John ~W. Boyd, and Virginia M. Boyd was a daughter of John W. Boyd, and at the time of said sale aged about thirteen years. At the April Term 1861, of said probate court, being the next term of the court after such sale, the report of the administrator of the sale of the real estate made March 5th 1861, was confirmed by the court, and on April 1st 1861 a deed from such administrator to John M. Vimont, trustee of Virginia M. Boyd, was executed for the real estate named in this case. The deed was acknowledged April 1st 1861, before E. M. Lee, register of deeds of Doniphan ,,county, and was filed for record in Brown county on the 10th of said April, and duly recorded in book F, at pages 93 to 101 inclusive. On April 2d, 1861, John W. Boyd conveyed by deed of warranty, duly acknowledged and delivered, to John M. Vimont, as trustee of Virginia M. Boyd, an undivided-half of the four tracts of land in Brown county purchased in the name of said Vimont as trustee, etc., at said administrator’s sale, including the tract in suit. This deed was filed for record in Brown county, also, on said April 10th, and was duly recorded. On February 11th 1870, Virginia M. Boyd, being then of full age, acknowledged the receipt of $1,200, from the defendant Edward H. Clark, for her use and benefit, and executed and delivered to" said John M. Vimont, her trustee, a written- power and direction, duly acknowledged, to convey the premises in controversy to said Clark. On the same day the said John M. Vimont, as such trustee, executed "and delivered to said Clark a deed of warranty for said premises, in compliance with the written power and direction of the eestui que trust, and the sum of $1,200 received to the use and benefit of said Virginia M. Boyd. Said two deeds were filed for record in Brown county, March 8th 1870, and duly recorded in vol. I, at pages 193 to 195, of the register’s office. After the execution and delivery of said deeds, said Clark entered into possession of said premises, in the spring of 1870, and has ever since resided upon them. From the spring of 1870, up to the time this action was commenced, Clark had made improvements on the tract of land in suit, costing him about $1,456, and of the value of about $3,000, when the plaintiff John P. Johnson obtained his deed for the same. The defendant Clark and his grantors paid all the taxes on the land in suit ever since the death of John H. Likins.
At the death of John H. Likins, on March 13th 1860, his only surviving child, Myra H. Likins, became his sole heir-at-law. She was born in February, 1849. Myra’s mother died in 1860, prior to the death of her father. On July 21st 1870, Myra H. Likins was married to James C. Mobley, at Hagerstown, Md., where she has resided since 1860. On February 6th 1872, Myra H. Mobley and husband executed to John P. Johnson, the plaintiff, a quitclaim deed for the property in suit, with a large amount of other real estate, for the consideration of $1,500. This deed was duly acknowledged in Washington county, Md., February 6th 1872, and was delivered to plaintiff John P. Johnson, and filed for record in Brown county on February 24th 1872, and duly recorded. The plaintiff was at the time of the purchase an extensive dealer and speculator in real estate, particularly in Doniphan and Brown counties, and well acquainted with the value of lands, and familiar with the investigation of titles, and before he made the purchase of the lands from Mrs. Mobley and husband, he procured and examined an abstract of the title of the property, and also wrote to Washington and learned that the land was patented to John H. Likens. He made the purchase without viewing the lands, and without knowing what improvements were on them; but the buying of unimproved lands without seeing them was not an unusual transaction with him.
The same day on which the plaintiff recorded his deed in Brown county, February 24th 1872, he commenced his action in the district court of that county against the defendant E. H. Clark for the recovery of the real property in dispute in this cause. The case was referred to David Martin, Esq., to report the facts, and thereon the court gave judgment for the defendant. Proper exceptions were taken, and the cause is in this court for review at the instance of the plaintiff.
We have carefully read the voluminous record in the case, and also considered the arguments of the learned counsel on either side, as well as the many authorities cited; and while we cannot agree with some of the conclusions of law found by the district court, we are satisfied that upon the facts found the judgment of the court below was correct, and should be affirmed. Our examination has led us to the conclusion, that at the time of the death of John H. Likins, John W. Boyd had an equitable interest in the land, the legal title of which was in John H. Likins, of at least one undivided-half of the same, and that such equitable interest was duly conveyed on April 2d 1861 by John W. Boyd, by warranty deed to John M. Vimont, as trustee for Virginia M. Boyd, and on February 11th 1870 duly conveyed by deed from the trustee, joined in by the 'cestui que trust, to the defendant Clark. The real estate having been purchased by partners, with partnership funds, and on joint account, and having been placed upon the books of the firm as partnership property, and so treated as assets of the firm to the dissolution of the partnership by the death of Likins, and Boyd having contributed his full share of the purchase-money, although the title was taken in Likins’ name, Boyd had an equal equitable interest therein, and this interest was of such a character as could be enforced in a proper proceeding in the courts. Clark, the1 defendant, took immediate possession after obtaining the deeds, made improvements, paid taxes, and was the exclusive occupant of the premises. The records of Brown county, at the date of the plaintiff’s purchase, showed a deed to defendant Clark from Vimont, who as trustee derived title to the undivided-half of the property by the probate proceedings in the matter of the estate of John H. Likins, deceased, and also as such trustee derived title to another undivided-half of said premises from John W. Boyd. Of all these deeds, Johnson had full notice. It is well established, that open, notoririous, unequivocal and exclusive possession oi _ x real estate under an apparent claim of ownership, is notice to the world of whatever claim the possessor asserts, whether such claim is legal or equitable in its nature. Under these circumstances it was incumbent upon the plaintiff to inquire. Inquiry would inevitably have lead him to knowledge of Clark’s possession. This was notorious. Having ascertained the fact of Clark’s possession, he was bound to pursue his inquiry until he ascertained the nature of the possessor’s claim. Having these means of knowledge at his command, and failing to use them, the law treats the plaintiff precisely as though he had used them and learned all that might have been ascertained therefrom. And therefore the plaintiff, upon the facts in the case, is held by the law to, have had, at the date 'of his purchase, full knowledge of Boyd’s equitable interest in the land at the death of Likins, and to all of which interest Clark succeeded by his purchase from the grantee of Boyd.
The plaintiff seems to have been unfortunate in the means adopted by him to understand the condition of the property before buying. He took the trouble of writing to Washington to learn about the patent, when he could have seen it by calling upon Clark, who produced it on the trial. He obtained abstracts of title, but notwithstanding the conveyances of undivided parts to Vimont, the grantor of Clark, he made no inquiry of either Clark or Boyd, and finally paid the purchase-money without viewing the land, and without knowing what improvements were on them. An interview with Clark, on the premises, would have enabled the plaintiff to have been fully acquainted with Clark’s claim, and his rights to the premises, as also the valuable improvements on the place. There is nothing in the record by which Clark is estopped from relying upon his possession, as notice of so much of his title as was derived through the deed of John W. Boyd.
As stated above, an -investigation of the proceedings of the probate court shows, that the deed of the administrator of such estate, of April 1st 1860, conveyed title of an undivided-half of the premises sued for to John H. Vimont, as trustee, etc. The proceedings in said court were sufficiently regular to transfer the interest sold. The appraisement was for an undivided-half of the premises; the certificate of the appraisement was referred to in the administrator’s report of the sale, was returned with the report of sale to the court, and was copied in full in the deed. On the day after the administrator’s deed was executed, the deed of John W. Boyd to the grantee of the administrator’s deed, was also delivered, and this conveyed to such grantee another undivided-half of the premises. The administrator’s deed conveyed all the' right, title and interest of John H. Likins, deceased, to Vimont, as rustee. At the time, this interest was assumed to be one undivided-half. The appraisers acted upon this understanding, and the purchaser so bought. The plaintiff in error presents many supposed defects-to the proceedings in the probate court, and claims that such proceedings were not sufficient to divest the title conveyed by the administrator from Myra H. Moberly, nee Likins. Premising that, as a matter' of public policy, the importance of upholding sales made by guardians, and personal representatives, is very great, whenever it can be done under the law, as the proceedings had in the probate court do not appear to be void, the sale df the real estate based thereon will be sustained.
Under section 2, page 10, laws of 1859, the probate court of Doniphan county had jurisdiction to grant administration on the estate of John H. Likins, although his mansion-house, or place of abode, was in St. Joseph, Mo.,. at the time of his death, as he possessed lands , ; . . . . , m said county, baid section substantially prescribed that if the intestate died out of the territory, having no mansion-house, place of abode, or lands in the territory, letters could be granted in any county; but if the intestate died under like circumstances, except that he was possessed of lands in the territory, letters could rightfully be granted in the county in which the land, or part a thereof, was situated.
The application for the letters being in writing, and stating the name of the only heir of the deceased, and purportipg to have been sworn to before the clerk of the court by the applicant, although blended with the oath of 11 J ° office as administrator, was sufficient to authorize granting of letters therein. The signing of the probate judge’s name above that of the clerk, did not render the affidavit void; nor was the same invalidated by the name of the applicant being written below the jurat. These matters were mere informalities. The fact that the letters were signed, “ A. A. Dougherty, Judge, by E. M. Lee, Clerk,” did not render them invalid, although sections 21 to 25, laws of 1859, pp.12, 13, required the testimonium clause to be signed only with the signature of the clerk. Neither is the omission to set forth the seal to the letters in the probate record thereof, any such act as to make them void. The letters purport, in the attestation part, to have been sealed; and in the absence of the originals, and the years intervening since the record was made, we cannot presume the letters were not duly issued.
The court having the jurisdiction to grant letters of administration on the estate of the deceased, and an application having been filed to invoke its authority, and letters having been duly issued thereon, the court had the right to pass upon the sufficiency or the bond ot the administrator, conditioned for a proper performance of his administration; and after such bond was accepted, and the same had been approved as follows: — “I approve of the sufficiency of the penalty and security of the within bond. — A. A. Dougherty, Probate Judge” — by written indorsement thereon by the probate judge, a sale of real estate made by such administrator, under the order of the court, which has been approved by the court, and a deed issued to the purchaser thereon, will not be held void because said bond was only signed by the administrator, and by -one surety, and it is afterward shown by parol evidence, in a collateral proceeding, that such surety, at the time, was a non-resident of the territory of Kansas, and the governor of Missouri. The numerous authorities cited by the counsel of the plaintiff to establish a contrary rule, do not apply on this point, as in the cases so referred to the bonds were required as a condition precedent to the sales of the real estate, and were not bonds given by administrators upon qualifying for office, as provided for in §§15 and 16, laws 1859, page 12.
The application made by John "W. Boyd, on November 5th 1860, to the probate court, praying for a sale of the real estate of John H. Likins deceased, gave iurisdiction to the court to make the subsequent orders allowed; and the administrator’s sale was not void for any omissions therein. The administrator did not make the application, which Boyd wanted made. The ap plication was made by a creditor, whose demand for $1,604.05 had been proved up, and assigned to the fifth class of claims against the estate. . It was sworn to. Notice thereof was given verbally to the administrator before the application was made, and no objection was taken to it at the hearing. The objection is also made that the notice required by section 131,. laws 1859, page 38, of the hearing of the application to sell real estate, was not given, and that therefore the sale was void. The point made was, that the notice, as published, fixed the first day of January 1861 as the day on which the application would be heard. The order of publication was made in November 1869, and the notice dated the 9th of that month. The next term after November, at which the application must be heard, commenced on January 7th 1861, and not on January 1st, of that year. The law then in force required the January term of the court to commence on the 1st Monday of January; and as the notice ordered all persons interested to make their objections to the application for sale of the real estate “ on or before the January term to be held on the 1st day of January 1861,” and as no orders, were made as to said application, under said notice, until the said January term 1861, the mistake as to the time the court was to convene at its January term, after the publication of the notice, could not have misled any one, and did not invalidate the proceedings. Mowry v. Sanborn, Court of Appeals of N. Y.; vol. 4, C. L. J. 394.
Various other objections were also made to the proceedings had in the probate court, but as in our view such defects were mere irregularities, in no way affecting the jurisdiction of the court, we think it unnecessary to mention them jn detail^ as we have in this opinion passed upon the most important exceptions submitted. Section 141, laws of 1859, page 29, provided, “that if the report of the administrator of the proceedings of a sale of real estate made by him be approved by the probate court, such sale shall b'e valid, and the administrator shall execute and' deliver to the purchaser a deed reciting the order of sale, and the court by which it was made, the certificate of appraisement, the advertisement, the time and place of sale, the report of the proceedings, and the consideration, and conveying to the purchaser all the right, title and interest which the deceased had in the same.” In this case the sale was approved by the court, and the recitals of the administrator’s deed on file at the date of the purchase by Johnson fully met the requirements of the statute.. Section 142 made the deed evidence of the facts therein recited; and the matters so set forth in accordance with section 141, in the deed, are prima facie true without further proof.
The judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This is a proceeding in error instituted for the purpose of reversing an order of the district court setting aside a sheriff’s sale. The proceeding might properly be dismissed from this court, for the reason that the plaintiffs in error have not made Hoag, the defendant below, a party in this court. Of course, we would not reverse the order of the court below without first giving the defendant below an opportunity to be heard. But as we expect to affirm the order of the court below, we shall do so without prejudice to his rights.
The facts of the case are substantially as follows: On the 7th of January 1873, a judgment was rendered in a justice’s court in favor of Thomas Harrison and Frank Willis, partners as Harrison & Willis, and against George S. Hoag, for the sum of $231.50 debt, and $3 costs. On the 1st of March following, an abstract of this judgment was docketed in the district court of said county. On the 5th of June 1875, two deeds of conveyance were recorded in the office of the register of deeds of said county, as follows: one of said deeds purported to convey two certain forty-acre tracts of land situated in said county from Lindley M. Andrews and Elizabeth W. Andrews to George S. Hoag, and was dated 24th May 1875; the other deed purported to convey the same land from George S. Hoag to Elizabeth W. Andrews, and was dated June 5th 1875. Both of said deeds purported to have been acknowledged before Thomas Harrison, a justice of the peace of said county. On the 12th of October 1875, an execution was issued on said judgment and placed in the hands of the sheriff of said county. The sheriff levied the same on one of said forty-acre tracts, to-wit, the S.E. J of the S.E.-J of section 31, township 32, range 16 east. This piece of land upon which the sheriff levied was “appraised at $1,000, being $25 per acre.” The sheriff sold the north twenty acres of said land to said Harrison & Willis for the sum of $333.34. He did not sell the rest of said land. Whether the twenty acres sold was worth more or less than the other twenty acres levied on and not sold, is not shown. The twenty acres sold may have been worth $700, and the other twenty acres may have not been worth more than $300. The two twenty-acre pieces taken together, or the whole forty-acre tract, was worth $1,000. At the next term of the court a motion was made to confirm said sale, and while said motion was pending Elizabeth W. Andrews appeared and moved the court to set aside said sale. The grounds upon which she made her motion were, that the land which was sold belonged to her, and did not belong to George S. Hoag. The motion to set aside said sale was heard upon the affidavits of Elizabeth W. Andrews, George S. Hoag, Thomas Harrison, and the aforementioned deeds. The court below set aside said sale, and the said Harrison & Willis excepted, and now bring the case to this court for review.
It has already been decided by this court, that where land has been sold on execution, any person claiming to be the owner thereof, and interested in defeating the sale, may, although he may not be a party to the suit, move the court to set aside suph sale. (White-Crow v. White-Wing, 3 Kas. 276;. Gen. Stat. 734, § 532.) We shall follow that decision in this case; for this case clearly falls within the rule enunciated in that decision. It was not only shown in this case that Mrs. Andrews was the owner of the land, but it was also shown that except for parol evidence her land was apparently subject to the payment of said judg- • ment and therefore that a sheriff’s deed for the land executed in pursuance of a regular sheriff-sale under such judgment would cast a cloud upon her title. In fact, the holder of the sheriff’s deed would,pf he were an innocent bona fide purchaser, procure the whole of the estate in the land, and wholly defeat Mrs. Andrews’ title. Apparently, from the public records and said deeds, which was all the written evidence there was applicable to the subject, Hoag obtained a good title to the land on May 24th 1875. Apparently, the judgment-lien then attached to the land; (Babcock v. Jones, 15 Kas. 296;) and apparently, Mrs. Andrews obtained her title to said land on June 5th, subject to said judgment-lien. It will therefore be seen that it was necessary for Mrs. Andrews to introduce parol evidence in order to show that j-,er said land was not subject to said judgment-lien. The plaintiffs in error claim that this could not be done on a motion to set aside a sheriff’s sale. We would answer that it may be done, subject to an extensive discretion in the court hearing the motion to allow or disallow it. (White-Crow v. White-Wing, 3 Kas. 276, 280, 281.) But the final decision of the court upon the motion in such a case would not be conclusive upon either party as to the ultimate rights of the parties. (Trepto v. Buse, 10 Kas. 170, 179, 180.) Of course, such parol evidence should be competent and material, and such as would be admissible under the rules of evidence in other cases. The parol evidence introduced by Mrs. Andrews in this case was embodied in the affidavits of herself and said Hoag. There is no objection to the evidence because it was embodied in affidavits, for proper and competent parol evidence may be embodied in affidavits on the hearing of a motion. Said affidavits show substantially as follows: Said land was originally purchased, and the improvements made thereon, with the money of Mrs. Andrews, and it was at the time said deeds were made, and still 'continues to be the homestead of herself and her husband and children. The title to the land was taken in the name of her husband (said Lindley M. Andrews,) but he agreed that’ he would transfer the title to her. In pursuance of such agreement they asked said Hoag, a single man, if 'he would receive the title from them, and then transfer the title to Mrs. Andrews. He agreed that he would. In pursuance of this agreement, Andrews and his wife on said May 24th, made out and signed said first-mentioned deed, and took it to Independence, where they met said Thomas Harrison, an attorney-at-law and justice of the peace. Mrs. Andrews testifies that Andrews then told Harrison, in her presence, what they had come for, and made Harrison acquainted with all the facts, “and that said Harrison then said that the method of transferring title, as by Mrs. Andrews suggested, was proper, and was only doing justice to this affiant, [Mrs. Andrews,] and that thereupon said deed to said Hoag was acknowledged.” Harrison took the acknowledgment as a justice of the peace. Mrs. Andrews kept the deed. Her husband left Kansas to go to Illinois the next day. On June 5th, Mrs. Andrews and Hoag went to Independence to Harrison’s office, and there Hoag was made acquainted with the contents of both deeds. He then executed the second deed, and acknowledged the same before Harrison, who took the acknowledgment as a justice of the peace. Mrs. Andrews then handed both deeds to Hoag, and gave him money to get them recorded in the county register’s office, and he immediately had them so recorded. The first deed was not delivered to Hoag until after he had executed the second deed. Hoag never had possession of the said land, and never claimed to own it. But on the contrary, the land has all the time been in the possession of Mrs. Andrews and her family, as their homestead, and she has all the time claimed to own it. Mrs. Andrews was present at said sheriff’s sale, and forbade the sale, and informed said Harrison & Willis that she owned said land, and that Hoag never had any such interest therein as could be taken in payment of. their judgment. Harrison in his affidavit admits that he took the acknowledgment of said deeds, but denies that he was ever informed, prior to their execution or at the time of their execution, for ‘what purpose they were executed. He also denies that he had any knowledge of their contents, or what land they con veyed, or to whom they conveyed it. All that he knew about them was, that they were instruments in writing which the parties wished to acknowledge.
We think the court below did not err in setting aside said sheriff's sale. It is possible that Mrs. Andrews was in equity the real owner of said land before either of said deeds was executed, and that her husband held only the mere naked, legal title thereto. (Franklin v. Colley, 10 Kas. 260; Gen. Stat. 1097, §8.) But it is certain that Hoag never had any such interest in said land as could be sold on execution. A deed has no force or effect until it is delivered. And the proof of the delivery rests entirely in parol. A deed dated May 24th, may be shown by parol evidence not to have been delivered until June 5th. Indeed, such a deed or any deed, might be shown by parol evidence never to have been delivered at all. Such evidence does not contradict or vary any of the terms of the written instrument. The delivery'of the deed is a fact outside of the writing, and in the nature of things must be subsequent to its execution. The deed is first completed, and then it is delivered, and it may be delivered long after its completion, and long after its date.' Hence the delivery of the deed must be proved by evidence outside of the deed itself. And as the deed from Andrews and wife to Hoag was shown in this case not to have been delivered until June 5th, it therefore Had no force or effect until that time. Indeed, it had no force or effect until the deed from Hoag to Mrs. Andrews took effect. That is, the two deeds were delivered simultaneously, and took effect simultaneously. They were executed and delivered as parts and portions of one single contract, taking effect at the same time; and they must be considered as merely parts and portions of one single contract. They must be considered as though the two instruments were attached together, and formed but one single instrument. The estate therefore in the land did not stop a single moment in the hands of Hoag. There was not a single instant of time when it could be said that the land belonged to him. And in such cases it is held that a judgment-lien cannot attach. (Scott v. Warren, 21 Georgia, 408.) But if any estate ever did stop for a sufficient length of time in the hands of Hoag for a judgment-lien to attach, it was a mere naked legal estate, as contra-distinguished from an equitable estate. The whole equitable estate was clearly in the hands of Mrs. Andrews; and in such cases it is held that the judgment-lien does not attach. (Lounsburg v. Purdy, 11 Barbour, 490; Thomas v. Kennedy, 24 Iowa, 398.) That is, it is held that the judgment-lien cannot attach to a mere naked legal estate, when the entire equitable estate is vested in some third person. And in no case will the judgment-lien attach to any interest greater than the judgment-debtor himself possesses in the land. Swarts v. Stees, 2 Kas. 236; Blankenship v. Douglas, 26 Texas, 225; Tallman v. Farley, 1 Barb. 280; Averill v. Loucks, 6 Barb. 20, 26, 27; Ells v. Tousley, 1 Paige Ch. 280; Keirsted v. Avery, 4 Paige Ch. 9; Dunlap v. Burnett, 13 Miss. (5 S. & M.) 702; Walker v. Gilbert, 1 Freeman Ch. (Miss.) 85; Jenkins v. Bodley, 1 Smedes & Marsh. Ch. (Miss.) 338. The judgment-lien attaches merely to the interest of the judgment-debtor in the land, and to nothing more. (Gen. Stat. 708, § 419.) Every equity belonging to other persons will be protected by the courts. A judgment-creditor is never considered as a bona fide purchaser, or even as a purchaser at all. (Swarts v. Stees, 2 Kas. 241.) In the present case however, the plaintiffs claim both as judgment-creditors, and as purchasers. But they cannot claim as bona fide pur-, chasers. For, saying nothing about Harrison’s knowledge of the execution of said deeds, the plaintiffs were informed on the day of sale, and before they purchased the property, that it belonged to Mrs. Andrews. Besides, Mrs. Andrews was at the time in the possession of the property, occupying the same as the homestead of herself and family, and claiming it as her own, while Hoag never had the possession of the property, and never claimed to have any interest therein. As purchasers therefore, the plaintiffs could not take any greater interest in the land than Hoag himself possessed.
The order of the district court setting aside said sheriff’s sale will be affirmed.
All the Justices concurring. | [
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On the motion of the defendant in error, and in accordance with the decision just made in the case of Weeks v. Medler, the petition in error herein is dismissed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The appellant was charged by information with murder in the first degree in killing John Leggett, and upon trial was found guilty of murder in the second degree, and sentenced to the penitentiary for ten years. From that conviction and sentence he has appealed to this court. The single error assigned is the refusal of the court below to give the following instructions:
“If the jury find from the evidence that the defendant, in an altercation between them, commenced by the defendant, struck the said Leggett with his hand, with no purpose or design to kill or cause great bodily injury to said Leggett, said Leggett had no right to repel such assault with a deadly weapon; and if he did so, and after he had shot and wounded the defendant, and had retreated behind a wall, and the defendant had ceased to follow him, (if the jury so find,) said Leggett again shot or attempted to shoot at defendant, the defendant was justified in defending his own life, even to the taking of the life of said Leggett.”
Two inquiries are suggested in the case presented to us for consideration. First, was there evidence before the jury which rendered it necessary or proper, supposing the instruction requested to contain a correct statement of the law in the abstract, to give it to the jury? and second, is it objectionable as a statement of law? We first recur to the evidence. Louis Bruno testified that on the morning of 5th May 1876, he was in Phillips’ saloon in Abilene, Dickinson county; “that Rogers was there, and Leggett was tending the bar; that Rogers asked for a glass of whisky for himself and partner; Leggett said he could not have any; Rogers asked why. Leggett told him he had done everything he could do against the house, besides, he had stolen some checks, silver spoons, and cards. Rogers said he was a damned liar — that he had not taken those things. Leggett told him he could prove it by a man that was sitting in the house, then. Leggett called on me to prove it, and Rogers asked me if I had seen him take the checks or spoons, and I told him I had not. Rogers said to Leggett, ‘ You have accused me of taking those things, and I will make you dance to my music.’ Leggett answered ‘that he wanted no trouble with him whatever,’ and said, ‘for God’s sake do let me alone, and it is all right.’” Several witnesses for the prosecution testified substantially that on May 6th, the day after the above controversy between Rogers and Leggett, Rogers came into Carpenter’s restaurant, in Abilene, about noon; that Leggett was.in the room, sitting in his chair after eating his dinner, as Rogers came in the door; that Rogers walked up to him and accused him of talking about him; that Rogers shook his fist in his face, and said he had better keep his damned mouth shut about him; that Leggett rose up; that a few words passed between them, and then Rogers struck Leggett in the face; that Leggett staggered and ran backward about fifteen feet, into the kitchen; that during the altercation Leggett told Rogers to keep away from him, that he wanted nothing to do with him; that Rogers followed him to the door, and as he got to the door, he put his hand in his pocket and told Leggett to draw his six-shooter and shoot if he wanted to. About that time Rogers drew his pistol. There was a shot fired. As the shot was fired, Rogers winced back a little, and then Rogers presented his pistol to fire; and just before he fired there was a second shot, fired by Leggett. After Rogers fired, Leggett fell, in the kitchen. Leggett told Rogers to keep away from him — he wanted nothing to do with him. Rogers did not retreat back any after he struck Leggett, until he fired; Rogers shook his fist in Leggett’s face, and said he (Leggett) had better keep his damned mouth shut. The bullet from Rogers’ pistol entered Leggett’s left temple on the side of the head, and Leggett died from the effect of such pistol shot about August 28th 1876. Rogers took his pistol out of his pants pocket. The pistol shots were quite close together, not more than a minute from the first to the last shot. The last two pistol shots were almost simultaneous. Some of the witnesses testified that Rogers drew his pistol out of his pocket before the first shot was fired. On the part of the defense, the only witnesses w7ho testified to the altercation in Carpenter’s restaurant on the 6th of May were the defendant, and Thomas Smith. The testimony of the prisoner was to the effect that he went into Carpenter’s to eat dinner. As he walked toward the table he saw Leggett, and he advanced toward where he was sitting; he told him he had been talking very harshly about him, and he wanted Leggett to take it back; that Leggett started to rise out of his chair, and as he rose, his hand was in his pants pocket, drawing his pistol; that he saw Leggett’s pistol as he drew it out and made an effort to knock the pistol out of Leggett’s hand; the pistol went off, it struck the prisoner near the waist; Rogers’ hand struck Leggett on the shoulder; that Leggett retired then back to the kitchen door; as he got to the kitchen door he fired again. Rogers was six or eight feet from him; the second shot struck Rogers in the abdomen; that then he put his hand into his coat pocket and drew his pistol; that Leggett fired the second shot near the dining-room door, while yet in the dining-room, and Rogers was then six or eight feet from him. After the second shot Leggett stepped into the kitchen; he was out of Rogers’ sight; when Rogers drew his pistol he held it in front of him. After Leggett retreated behind the door of the kitchen, his left shoulder and right hand came in sight, and his head leaned out so he could see. Rogers then shot, Leggett fell, and his pistol dropped; that he shot Leggett because of the motions he had made, and the attitude he had taken, and to save his own life; that he did not shoot him for shooting the first or the second time; that Leggett retreated twelve or fourteen feet; that he followed to get the pistol. The evidence of Smith, who was invited by Rogers. to go to Carpenter’s to dinner that day, was similar to that of Rogers as to the commencement of the altercation. He also testified that, from where Leggett sat at the time Rogers spoke to him, to the kitchen door to which Leggett retreated, was about eighteen feet, and that Rogers was following Leggett, when Leggett shot the second time; that Rogers drew his pistol from his coat pocket as he was passing the end of the din ing-room table; that between the second shot of Leggett, and Eogers’ shot, there was so short a time that no one could tell which shot first; that he heard Eogers say, on May 5th, he would give Leggett a thumping; also heard him say he would lick him; that Eogers was a heavier and stouter man than Leggett, and witness thought when Eogers came in that the fuss was coming to a focus. • This witness called Leggett’s pistol a small pop-gun, and one of the Smith & Wesson pattern.-
The court in its general charge instructed the jury on the state of the evidence as claimed by the prosecution, that, “It is for the jury to decide from the evidence whether the defendant had reasonable cause to apprehend danger to his life, or some great personal injury, and whether at the time he fired the shot he was in immediate danger of his life or some great bodily harm or injury from the deceased, from which he reasonably supposed he could not escape except by disabling the deceased, or by taking his life. In such a case he would be entitled to acquittal. But when a party claims a justification for killing his adversary, it must not be in a combat of his own seeking; nor when he provokes another to commence an affray for the purpose of having a pretext to take the life of his assailant. And if a man for the purpose of bringing another into a quarrel provokes him so that an affray is commenced, and the person causing the quarrel is over-matched, and to save himself from apparent danger kills his adversary, he would not be justifiable; because the necessity being of his own creating shall not operate in his excuse.” At the instance of the defendant the court also instructed the jury that, “If the jury find from the evidence that in an altercation of words between the defendant and the deceased, said Leggett made an assault on the defendant with a deadly weapon or loaded pistol, and shot at and wounded the defendant, and that while the said Leggett was endeavoring to, shoot defendant again, he shot said Leggett and caused a wound which produced the death of said Leggett, the defendant acted in self-defense, and was justifiable.”
"We do not think the instruction refused either necessary, or proper. It might have misled the jury. In our view, the evidence does not show that Rogers ceased to follow Leggett, in the full significance that these words imply. A cessation on the part of Rogers to advance for a single moment, does not show he had given up the pursuit, or had ceased to follow. In one aspect of the case, Rogers ceased to advance, just as he shot; but before this, his pistol was in his hand in front of him, and the fatal bullet was fired by Rogers almost instantaneously with the second shot of Leggett. The instruction contradicts the theory of the defense, that Leggett first made an assault on the defendant, and concedes that the prisoner commenced the altercation, and struck the deceased first with his hand. All the evidence shows that Leggett retreated; that he retired from fifteen to eighteen feet; that he was literally trying to escape from the presence of Rogers; that Rogers made no attempt to shun the combat; that he advanced to the time that Leggett obtained mere temporary shelter behind the door or partition of the kitchen, but shot the moment Leggett presented, his arm- and head therefrom. Nowhere in the altercation did Rogers manifest sufficient good faith on his part to remove the apprehension of his adversary. Had he exhibited, after the first blow was struck, half the diligence that Leggett did to avoid further encounter, it is more than probable that Leggett would have been saved from an untimely death, and the prisoner from a long confinement in prison. Rogers testified that he followed up Leggett, but gave the excuse that he wished to disarm his opponent. Of the two, Rogers was the abler and stronger; he had the more physical strength, yet he made no effort to retreat, no attempt to escape from Leggett; and he hesitated only, when he supposed his antagonist was in a position to render his further advance dangerous; that hesitation was for a moment only; when the opportunity offered, the bullet from his ready pistol, fired with his own hand, pierced the temple of Leggett, and the latter fell with a fatal wound.
But if we have mistaken in any way the evidence presented in the record, still we think the instruction refused ought not to have been given, as it is objectionable as a statement of law. The instruction assumes that Rogers followed Leggett, after commencing the altercation, and striking him with his hand, and assumes no explanation of his ceasing to pursue. The words, “and the defendant had ceased to follow him,” are not broad enough in their import; are not sufficiently expressive of any intention on the part of Rogers to abandon the conflict. He may for the instant have ceased to follow, to gain fresh strength, or some new advantage for the attack. If the instruction is based upon the view that Rogers had repented, and was ceasing his pursuit, preparing to flee, then there is no assumption in the instruction that Rogers had done “works meet for repentance.” We do not hold, that when one person, with no felonious intent, but simply for the purpose of inflicting a personal chastisement, strikes another with his hand, he has absolutely forfeited all right to exist, as the able counsel for the appellant suggests must be the result, if this instruction be held not good law. In discussing the question of self-defense Lord Hale says: “Supposing that A. by malice makes a sudden assault upon B., who strikes again, and pursuing hard upon A., A. retreats to the wall, and in saving his own life kills B.; some have held this to be murder, and not se defendo, because A. gave the first assault. But Mr. Dalton thinketh it to be se defendo, though A. made the first assault, either with or without malice, and then retreated. It seems to me that if A. did retreat to the wall upon a real intent to save his life, and then merely in his own defense killed B., that it is se defendo. But if on the other side, A., knowing his advantage of strength, or skill, or weapon, retreated to the wall merely as a design to protect himself under the shelter of the law, but really intending to kill B., then it is murder, or manslaughter, as the circumstances of the case require.” 1 Hale’s P. C., 479, 480. Again: “If A. assaults B. first, and upon that assault B. re-assaults A., and that so fiercely that A. cannot retreat to the wall or other non ultra without danger of his life; nay, though A. fall upon the ground upon the assault pf B., and then kills B., this shall not be interpreted to be se defendo, but to be murder, or simple homicide, according to the circumstances of the case; for otherwise we should have all cases of murders or manslaughters by the way of interpretations turned into se defendo.” 1 Hale P. C. 482.
What acts have been held so far to abridge a man’s right of defense, that if he thereupon kill another, he cannot be acquitted of all crime, see State v. Starr, 38 Mo. 270; State v. Hill, 4 Dev. Bot. 491; Vaiden v. Commonwealth, 12 Gratt. 717; Adams v. The People, 47 Ill. 376; Haynes v. The State, 17 Ga. 465; Commonwealth v. Drum, 58 Pa. St. 9; Staffer v. State, 15 Ohio St. 47; Stuart v. State, 1 Ohio St. 66. The authorities uniformly hold that the person who first commences a malicious assault, then continues to advance as the assailed retreats, or does not in good faith attempt, so far as he can, to withdraw from the combat, and abandon the conflict, cannot justify taking the life of his adversary, however necessary it may be to save his own, and must be deemed to have brought upon himself the necessity of killing his fellow-man. We see no reason from the authorities cited by counsel, or the argument presented in behalf of the appellant, in any way, to loosen these well-settled principles so salutary to prevent altercations, and to save human life. The mere striking of one person by another with the intention to commit only a personal chastisement, is almost sure to be followed by a dangerous, if not deadly result, where the parties are armed with deadly weapons, as in this case; and while the carrying of the pistol loaded for use cannot be too severely censured, too strongly condemned, it is unfortunately a too prevalent custom fo be wholly ignored, or to suppose that an encounter between two persons hostile to each other will only result, after a blow is given by the first, in a combat with fists. The blow from the one is often followed by the pistol-shot from the other. The assailant places himself in peril when he makes the assault; and when he is in fault, and calls down upon himself the vengeance of the assailed, he cannot be jus tified under the law when he has not actually “ put into exercise the duty of withdrawing from the place.”
Under the instructions refused, a person armed with a deadly weapon, who commences an altercation, commits a personal chastisement on another, advances as the other retreats, and only ceases to follow in order to watch the acts of his adversary, and anticipating the shot of his opponent, kills the assailed by the quickness of his movements, is freed from all blame, and stands justified, because his antagonist in his retreat too fiercély returns the assault, and, having succeeded by flight to reach a door or partition from behind which he-seeks to defend himself while he has reasonable grounds of apprehension that he is in imminent danger. Such is not the' law. The instruction not given does not place the appellant in a fitting position at the time he gave the mortal wound for the- law to say he was remitted to his right of self-defense.
The judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The plaintiffs in error Gauss & Sons, brought this action against James A. Pope and Bainbridge E. Hobbs as partners, under the firm-name of “Pope & Hobbs,” on an account for goods alleged to have been sold and delivered to said Pope & Hobbs. Pope made default, but Hobbs answered, denying his liability for said goods. A trial was had by jury between the plaintiffs and the defendant Hobbs. Hobbs admitted on the trial that said account was correct, and that there was an unpaid balance due thereon of $387.02, but simply denied his own liability thereon. No question was raised in the court below concerning the admissibility of any evidence, or with regard to any of the instructions of the court to the jury. None of the instructions are brought to this court, and therefore it must be presumed that they were all entirely satisfactory to the plaintiffs below, who are now the plaintiffs in error. The jury found generally in favor of the defendant Hobbs, and also made several special findings. The plaintiffs moved the court for judgment on the special findings of the jury, which motion was overruled. The plaintiffs then moved for a new trial, on the ground that both the general verdict and special finding^ were against the evidence, which motion was also overruled. Judgment was given in favor of Hobbs and against the plaintiffs for costs. The plaintiffs assign said three rulings of the court below for error.
I. We shall consider the second of said rulings first. Does the evidence sustain the verdict and the special findings of the jury? The most of the. facts were undoubtedly proved to be just as the jury found them to be. But with respect to some of the other facts, the evidence was so contradictory and inconclusive that the jury might have found either way, and might have given the verdict to either party. There was really sufficient evidence introduced on the trial by each party, if it had been true, to sustain a verdict in favor of such party. And there was also enough evidence introduced by each party, if it had been true, to have defeated the other party. But as the jury found upon all the doubtful questions in favor of Hobbs, and against the plaintiffs, and as their findings have been sustained by the court below who saw the witnesses and heard them testify, this court which sees the evidence only on paper, cannot, upon the well-settled rules of this court, set aside such findings. Take all the evidence of the defendant, and all the evidence of the plaintiffs not inconsistent with the defendant’s evidence, and exclude the balance, and then the evidence would be amply sufficient to sustain the verdict and findings of the jury.
II. We shall consider the first and third rulings together. Do the special findings, and the general verdict, taken together, sustain the judgment? If the special findings are in any respect inconsistent with the general verdict, they will of course control the general verdict, and the judgment should be rendered accordingly. (Gen. Stat. 684, § 287.) But we do not think there is any such inconsistency in this case. We think the special findings in this case áre entirely consistent with the general verdict. The special findings are in substance as follows: Prior to September 8th 1874, Pope was selling goods at Cawker City, Kansas, and Hobbs had some goods in Nebraska. On the 8th or 9th of said September, they had a talk about forming a copartnership, but did not enter into any agreement with reference thereto. Soon after that time Hobbs went to Nebraska, and while gone Pope bought the goods for which the plaintiffs brought this action. He bought them in the name of “Pope & Hobbs,” and the plaintiffs shipped them to him in the same name. - On the 19th of October following, Hobbs returned from Nebraska, and on the next day he and Pope entered into' a copartnership for the purpose of dealing in merchandise under the name of “Pope & Hobbs.” Pope, who had previously received said goods from the plaintiffs, invoiced them along with his other goods, and put them into the copartnership as a part of his (Pope’s) share of the capital. Hobbs did not know at that time that any of said goods were purchased from the plaintiffs, or from whom they were purchased, or in what manner they were purchased; and he did not know that any goods had been bought or shipped by, for, or to Pope in the name of Pope & Hobbs. On October 29th, a bill for a part of said goods purchased by Pope from the plaintiffs was entered by Pope on the books of the firm of Pope & Hobbs; and between the 4th of February and the 9th of April 1875, a bill for the remainder, of said goods was entered by Pope on the books of the firm of Pope & Hobbs. On February 4th, March 3d, April 30th, June 29th, and July 5th, 1875, payments were made by Pope to the plaintiffs out of the partnership funds, amounting in the aggregate to $301, and Pope at the time entered these payments on the partnership books. Hobbs had access to said books, but he did not know anything concerning said entries, or said bills, or said payments, until after April or May 1875. Hobbs never consented that either himself, or the firm of Pope & Hobbs, should become responsible for said goods, and never acquiesced in or ratified what Pope had done with reference thereto. Hobbs did not inform the plaintiffs that he would not be responsible for said goods until October 1st 1875, but the plaintiffs lost nothing on account of the delay. It was shown by the evidence that Hobbs was a farmer by occupation; that he “knew nothing about keeping books, or the mercantile business,” that “he intrusted everything to Pope,” and that the partnership was dissolved on the 20th of July 1875. This suit was commenced October 13th 1875.
Now there is nothing in the foregoing facts, contained in the special findings of the jury, which would override or overthrow the general verdict of the jury. Hobbs was not liable for said -goods at the time they were purchased, or shipped, and he never did anything afterward to make himself liable. It is true, the goods were put into the partnership business ; but Hobbs did not at the time know anything concerning the previous transactions between Pope and the plaintiffs, and he accounted to Pope for the whole of the goods as the individual property of Pope. Hobbs never had- any transactions himself with the plaintiffs, and never did anything by way of ratification, or affirmance, or approval of Pope’s transactions with them. He never in any manner recognized Pope’s debt to the plaintiffs as his debt, or as a debt of the firm of Pope & Hobbs. And the plaintiffs lost nothing by any failure on the part of Hobbs to sooner notify them that the acts of’ Pope were unauthorized. But why should Hobbs have notified the plaintiffs at all? An incoming partner is not bound to notify the creditors of the other members of the firm that he will not be responsible for their debts and obligations previously contracted; but he may simply remain silent, and refuse to pay or discharge them. It is not necessary that an incoming partner should do something, in order to escape liability for the previous debts and obligations of his copartners, but on the contrary it is necessary that he should do something in order to make himself liable for such debts or obligations. It is in fact necessary that the incoming partner should do something from which it may be inferred that he intends to assume, or that the new partnership shall assume, the previous debts and obligations of his co-partners. The principal wrong committed by Hobbs in this case was to engage in a business of which he was wholly ignorant, and wholly incompetent to manage.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action of replevin brought by Hastings & Saxton against Owens, for a lot of railroad ties. Owens had theretofore recovered judgment in a justice’s court against the St. Joseph & Denver City Railroad Company, and on the supposition that these ties wei’e the property of said railroad company he had caused them to be levied upon and sold to satisfy his judgment, and Owens at such sale became the purchaser. Hastings & Saxton were in fact the owners of these ties, having purchased them, together with a large number of others, in 1872, when as contractors of said railroad company they had undertaken to build the said road from Marysville, Kansas, to Kearney Junction, in Nebraska; and the ties in dispute were among a large lot that were on hand when the said road failed-in 1872, and Hastings & Saxton discontinued their work under said contract. The plaintiffs below had left these ties, as well as all on hand at that time, scattered along the line of said railroad where they had been delivered for use in the construction of said road, and they had thus remained until said railroad company were allowed to take them under the following circumstances.: In May 1875, the said railroad, needing ties to replace decayed ones, entered into an agreement, in writing, with Hastings & Saxton, of which the following is a copy:
“Agreement between the St. Joseph & Denver City Railroad Co. and Hastings & Saxton. The following agreement made this second day of May 1875, by and between the St. Joseph & Denver City Railroad Co. of the first part, and Hastings & Saxton of the second part, witnesseth: That the party of the second part agrees that the party of the first part may select as many ties on the line of the St. J. & D. C. railroad as they may need, and after they (the ties) are placed under the track of said road they shall be counted, and accounted for to the parties of the second part at the price of thirty cents per tie; and the party of the first part agrees to pay for the same in monthly payments of one thousand dollars per month, and any fractional payment in proportion. And whereas, the party of the t first part have used, previous to this time, bridge timber agreed on at four hundred dollars, they bind themselves to pay in like manner for any timber that the party of the first part may need. They shall have the right to use (at 18 per M,) as long as the timber remains in El wood not otherwise disposed. The said ties shall not be considered the property of the St. Joseph & D. C. Railroad Co. until placed under the rail. L. D. Tuthill,
General Manager for St. Jos. & D. O. JR. It.
Hastings & Saxton.”
No question of estoppel can arise in this case, because Owens had ample notice of Hastings & Saxton’s claim, and as he himself testified, Saxton offered to show him the contract if he would come to their office. So that the only question is, whether this contract is valid, so far as it attempts to fix the time at which title to the ties should pass. And* we fail to see any sufficient reason against its validity. Prior to the contract, the ties were the unquestioned property of Hastings & Saxton. No creditor of the railroad company had or could acquire any interest in them. How then could he in any way' be wronged by any disposition which Hastings & Saxton made of them? Why could not the latter fix the time at which their title should pass, and fix it too in such a manner, and with the purpose of cutting off any/opportunity for jüst such levies as this? They knew that the railroad company was embarrassed; that a mortgage foreclosure was pending; and they had a right to make any stipulation like the one before us, for the purpose of protecting their own interests, and securing payment for their property. They might have been willing to trust to the mortgage creditors to pay for these ties, and not to the general creditors. Perhaps they held the mortgage bonds themselves. At any rate, they fixed the time at which they were willing to part with the title; and until that time arrived, no creditor of the railroad company could question their title, or acquire any interest in the property. It was a conditional sale, with condition not performed, and therefore no title passed. We see no reason to doubt their ■title, and therefore the judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action by Jerry Fitzsimmons, by his next friend, to recover damages for personal injuries. On the 17th of August 1873, Fitzsimmons, then about twelve years of age, was so much injured in his right leg by a turntable that to save his life the leg had to be amputated below the knee. He sat upon the end of the table, with r . 7 his legs hanging over. It was being run around by other boys about his own age, and when the rails on the table came in juxtaposition to those of the adjacent track, the limb was caught between them, and so crushed as to make amputation necessary. The table is situated on the Fort Leavenworth military reservation, from one-third to one-half of a mile north of the north line of Leavenworth, the intervening space being an open common, which is crossed by the Chicago & Southwestern Railway, and was the grazing-ground of many cows belonging to citizens of the town, among them the cow of the plaintiff's father, who was a laborer in very limited circumstances. About three o’clock on the afternoon of the day mentioned, (which was Sunday,) Fitzsimmons was sent by his father to look after the cow. Having found the cow, in company with five or six other boys he proceeded to the turn-table, and was injured as above stated. The turntable was not inclosed, guarded, or locked. The Kansas Central Railway Company was organized for the purpose of constructing a railroad from Leavenworth to the west line of the state, with sundry branches, (in all, about five hundred miles.) The defendant had made a contract with the Washington Improvement Company, a- corporation organized un der the laws of Pennsylvania, for the construction and equipment of its whole road, fifty-six miles of which had been completed and equipped at the time of the accident. There was conflict in the testimony as to .which of the above companies was in possession of and operating ,so much of the railroad as was then built. On the part of the railway company, evidence was offered of an agreement between the Washington Improvement Company and the Kansas Central Railway Company for the former company to furnish the means and material and to construct and equip the whole of the Kansas Central railroad, and the charter of said company showing its power to make the contract. The testimony of the president of the Kansas Central Railway Company was to the effect, that but fifty-six miles of the road had been constructed; that the same had not been turned over to the railway company, but at the time of the injury complained of the said Improvement Company was in the possession of and operating said railroad. There was evidence introduced in behalf of the plaintiff in the court below tending to contradict this defense. On the trial the defendant railway company requested the court to instruct the jury as follows:
“If the jury find from the testimony that the Kansas Central railway was, at the time of the injury to the plaintiff, in fact in the possession of, and operated by the Washington Improvement Company, the plaintiff cannot recover in this action.
“If the jury find from the evidence that the Kansas Central Railway Company contracted with the Washington Improvement Company to construct and equip its railroad five hundred miles or more west from the city of Leavenworth, and that said Washington Improvement Company had constructed but fifty-six miles thereof, and had not turned the same over to the Kansas Central Railway Company, but remained in the possession of the same at the time of the injury complained of, the plaintiff cannot recover.”
The court refused so to instruct the jury, but did instruct them as follows:
“ The fact which is presented for our consideration is the alleged one, that at the time of the injury the turn-table in question, not only was first constructed by this Washington Improvement Company, but had been from its construction up to that time, and still beyond that period, under the exclusive management and control of that corporation or company, and the defendant — the Kansas Central Railway Company — had nothing to do with it; and it is claimed by the defendant that if that be so, then the Washington Improvement Company is the one that should be responsible, if anybody, and not the defendant.
“With reference to this question, I instruct you as follows: The contract between the Washington Improvement Company and the defendant, read in evidence, will be regarded by the jury a valid contract, in so far as it authorizes the Improvement Company to construct and equip the railroad of the defendant, and in so far as it gives to the Improvement Company the right to use and manage the road for the purposes of completing the track; and so I say to you, if you find that the turn-table and the railroad, in so far as it had been constructed under the contract read in evidence had not been turned over to the defendant, and had been used by the Improvement Company from the time of its construction up to the time of the injury in question, and this only for the purpose of prosecuting the work contracted to be done by it, then I instruct you the plaintiff cannot recover, and it will be the duty of the jury to find a verdict in favor of the defendant.
“But I say to you, that this contract is not to be regarded as valid for the purpose of conferring on the Improvement Company the right to use the road for general purposes — for the purposes of general traffic — and if you find therefore, that at the time of the injury the turn-table and the road so' far as it was constructed were being operated and used for the purpose of general traffic — as railroads are generally used and operated — then I say that the defendant cannot relieve itself from liability by the fact that the immediate running of the trains and the operation of the road was confided to others, who may have supposed that they were employed and paid by the Improvement Company. It cannot shield itself from responsibility in this case behind the contract in question.”
The proper exceptions were taken, and the case is here for review. The better authority is, that when a railroad is being constructed," and is in the exclusive possession of and operated by the contractor for its construction, and the railroad company at the time of the injuries bejng comrnjtted thereon has no control thereof, such company is not liable for the damages resulting from the injuries committed by the contractor in operating the road. The relation of master and servant does not exist between an employer and an independent contractor. There are exceptions, as usually is the case, to this rule, but the later decisions, as well as reason, support the general principle stated. Knight v. Fox, 5 Exch. R. 721; Rudie v. London & Northwestern Rly. Co., 4 Exch. R. 244; Ellis v. Sheffield Gas Consumers Co., 2 El. & Bl. 767; Kelly v. Mayor of N. Y., 11 N. Y. 432; Lockwood v. New York, 2 Hilt. 66; Blackwood v. Wiswall, 24 Barb. 355; Carman v. Steubenville & Indiana Rld. Co., 4 Ohio St. 399; Boswell v. Laird, 8 Cal. 466; Steel v. S. E. Rly., 16 C. B. 550; Meyer v. Midland Pacific Rld. Co., 2 Neb. 319; Peachey v. Rowland, 16 Eng. L. & E. Rep. 442.
This general doctrine the court below substantially recognized in its charge to the jury, but made a distinction as to the liability of the railway company in the use for which the contractor operated the road. The liability of the railway company is attempted to be made to depend on the character of the use of the road, not the character or manner of the possession of the same by the contractor. In effect, the court instructed the jury, that if the improvement company had charge of the railroad, and was operating it for the purposes of construction only, the railway company was not liable; but if the contracting company had like possession and like control, and was operating the road for the purpose of general traffic, then the railway company was liable. The instruction thus given was too broad, and not sufficiently limited to be applicable to the case at bar. The real defense to the action was, that the railroad was being constructed by the Washington Improvement Company, was in its possession and under its control, and operated by it; that it had not yet been turned over to the railway company, and that the railway company had nothing to do with its operation or construction, or the employment of its hands. If the improvement company held possession of the road, and engaged in general traffic against the objections of the railway company, under the charge, the railway company would be liable. If the contracting company had failed to properly equip the road, or had built defective bridges, and the railway company refused to accept the same, this charge of the court would hold the railway company liable for all damages caused thereby, if in defiance of the railway company’s orders and authority the contracting company carried freight and passengers over the road. Under its charter, the railway company had full authority from the state to construct its road; it had the undoubted right to employ individuals or a corporation to build and equip the same. During its construction it was properly in the charge of and under the control of the corporation having the contract for its construction, and thus far, it is conceded, the railway company is not liable for the acts of contracting party. But because the improvement company engaged for a time in general traffic over the road, the court by its charge says the liability of the railway company is settled. The charge does not base this liability upon the improvement company being the lessee of the road, nor upon any contract by which the road is to be operated with the consent or for the benefit of the railway company. Nor can it be claimed from the instructions that the railway company had made any contract in violation of its charter, or to avoid its responsibility. It is conceded that the improvement company had authority under its incorporation to construct and equip the road; and to hold, that while in the possession of the road and its appurtenances, the railway company should be responsible for its wrongful acts or omissions, because said improvement company ran trains and carried passengers and freight, would be deciding the law contrary to that given in "the first part of the charge, and affirming in its broadest sense the principle that the employer is responsible for all acts and omissions of the contractor, the same as those of a servant. Such is not the law. The principle by which all these cases are governed is the general one, that a person who receives an injury from another must proceed against the party by whom the injury is inflicted. In the case of master and servant, the master is liable for the negligent acts of the servant, on the ground that he has the power of selecting, him; but in order to make one person liable for an act which another person has done, the latter must be the servant of the party sought to be made liable. The maxim of the law is, respondeat superior; and in this case, the railway company, on the facts presented by the defense, and on which the defendant in the court below asked that the instructions quoted above be given, does not stand in the relation of superior to the improvement company. We are unwilling to follow the decisions cited by the counsel for the defendant in this court, so far as they conflict with these principles. As to the decisions cited by the same counsel, that if a railway company leases its- road to another, or places its'road in the hands of an irresponsible individual, or a worthless corporation, it cannot thereby avoid its liability, we need only say, that in this case they are not applicable. The instructions are not restricted by any such qualifications. The Kansas Central Railway Company had not leased its road to be operated for general traffic; nor is the charge based upon the theory that the improvement company was operating the road in its own name for the use and benefit of the railway company, merely to relieve the latter from responsibility. The fact that the improvement company had no authority to operate a railroad in Kansas, as claimed by counsel for defendant in error, does not on the facts presented change the law in .this case. If the improvement company, in carrying passengers and freight, was violating its own charter, as well as committing acts not authorized by the contract existing between it and the railway corporation, the reasons are still stronger in favor of holding the railway company not liable for such unlawful acts. That such improvement company could not interpose the violation of its own charter to shield it from responsibility, is fully discussed and decided in Bissell v. Michigan Southern & Northern Rld. Cos., 22 N. Y. 258. Considering the instructions refused, and the charge given, we think the court erred, and that it may have misled the jury-
We do not wish to be understood that upon the evidence produced, the jury should have found that the Washington Improvement Company was in fact operating the railroad; nor that the Kansas Central Railway Company is not liable in the case. The question, as to which company was operating the road at the time of the injuries complained of, is a question of fáct to be decided upon the evidence, by the jury. But a party to an action has the right to have his case submitted to the jury under proper instructions, and in this case the plaintiff in error has been denied this legal right.
Other questions are presented in the brief of the counsel, but as a new trial is to be had, and as these questions may not arise again, we need not comment thereon.
The judgment must be reversed, and a new trial ordered.
Yalentine, J., concurring. | [
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The opinion of the court was delivered by
"Valentine, J.:
This was an action brought by Hughan & McDowall against the city of Waterville, for work, labor and materials furnished by them to the city upon a certain written contract entered into between the parties for the construction of a certain dam on the defendant’s land across the Little Blue river. The plaintiffs allege in their petition, among other things, that they constructed said dam in accordance with said contract, and that the value of their labor and materials furnished amounted according to the contract to the sum of $7,871.85; that at sundry times the defendant paid them for such labor and materials various sums, amounting in the aggregate to the sum of $4,493, and that there still remains due from the defendant to the plaintiffs the sum of $3,378.85; that for this sum the defendant, through its mayor and clerk, gave to the plaintiffs a certain paper in effect a due-bill, which sum still remains due and unpaid, and for which with interest the plaintiffs ask judgment. The defendant answered to this petition, putting in issue substantially all the allegations of the petition except those setting forth said payments made by the defendant to the plaintiffs, and setting forth substantially that said dam was a mill-dam, and that said contract was ultra vires, illegal, and void, and therefore that the defendant was under no legal obligation to pay the plaintiffs for the construction of said dam, etc. The allegations of the answer putting in issue the execution of said due-bill were duly verified by affidavit. The plaintiffs replied to said answer, denying generally all the allegations of new matter contained in the answer. A trial was had before the court and a jury.
On the trial the plaintiffs introduced in evidence a copy of said due-bill, and did not introduce tbe original -in evidence. This was allowed to be done over the objections of the defendant; and in this we think the court below erred. It was shown on the trial that the original due-bill, after it was signed by the mayor and clerk, was handed to the plaintiff McDowall. And there was no legal evidence showing that it was ever destroyed, or lost, or ever went into the hands of any other person. The other plaintiff, Hughan, testified on the trial however, that McDowall told him (Hughan) that he (McDowall) gave said due-bill, along with the other papers in the case, to their attorney, H. P. Cooper. Cooper was the attorney who commenced this action for the plaintiffs. There was nothing further shown with reference to said due-bill. There was no attempt made to ascertain whether Cooper still had it, or not. This case was tried in Marshall county. McDowall was at the time of the trial in Chase county; and Cooper was in Washington county, about twenty-seven miles distant from the place of trial. Said copy of said due-bill-showed that the plaintiffs had done 692 5-27 yards of masonry at $10 per yard, and 100 yards at $9.50 per yard, amounting in the aggregate to $7,871.85, and that $4,493 of that amount had been paid, leaving $3,378.85 still due to the plaintiffs. This due-bill was the only evidence introduced on the trial showing that the plaintiffs did the amount of work which they claimed to have done, and the only evidence showing the value of the work which they actually did do. The only other evidence upon this subject was the testimony of two witnesses, one of whom testified, that “ There was over 600 yards of work done on the contract;” and the other testified, that, “As near as I can remember, about 200 yards” of work was done under the contract. This was all the evidence introduced with respect to the amount and value of the work done.
The court below instructed the jury in substance, to find for the plaintiffs for the full amount of their claim; and so the jury found — finding in favor of the plaintiffs and against the defendant for $3,792.24, and the court rendered judgment in accordance with this verdict. A motion in arrest of judgment, and a motion for a new trial, were made by the defendant, each setting up various grounds, and each was overruled by the court.
We think it will appear from the foregoing statement of the case, that the court below erred in permitting said copy of said due-bill to be introduced in evidence, and that the error was material and substantial. There was no showing that the original was lost or destroyed, or placed beyond the reach of the plaintiffs. On the contrary, it was traced to one of the plaintiffs by competent and legal testimony, and to an attorney of the plaintiffs by incompetent testimony; and there the evidence leaves it. And without the evidence furnished by said copy of said due-bill, no such judgment could have been rendered upon the evidence as was rendered. Instead of showing that there were 792 5-27 yards of work done, as said copy of said due-bill did, the other evidence showed that there were only “over 600 yards,” or “about 200 yards,” done; and instead of showing that said work was worth from $9.50 per yard to $10 per yard, as said copy of said due-bill did, the other evidence was wholly silent upon the subject.
The judgment of the court below will be reversed, and cause remanded for a new trial.
Brewer, J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Beewek, J.:
This is a road case, an action in which the present owner of a few acres attempts by injunction to ■close up a road opened and used by the public over said tract long before he acquired any title thereto. The facts are these: Eor several years past the plaintiff has resided, his wife being the owner, upon the N.W.J of S.E.J of section 24, township 7, range 21, in Atchison county. While thus residing, and in June 1870, a petition was presented to the county board for a road which was intended by the petitioners to cross the S.E.J of section 24, but in fact named the S.W.J of said section. The road, was simply to cross the quarter-section. The description in the petition as it now appears reads, “a road commencing at about thirty rods west of the southeast corner of the S.W.J section 24, T. 7, E. 21, and on the south line of said quarter, thence running in a northwesterly direction to the north line cf said S.W.jr, about eighty rods from the northeast corner of said quarter of section 24, township 7, range 21, and intersecting the Atchison county-road at S. Scruggs’ land.” In the petition as originally brought to the county clerk’s office the initial point was described as, “ White Oak Grove, on the Leavenworth county-road,” but was at the time of filing changed by the clerk, with the consent of the principal petitioner. The mistake in the description was one that could not, as the court finds, have misled any one familiar with the locality. At this time the N.E.£ of the S.E.-J was owned by Henderson and Taylor, and the west sixty acres of the S.f- of. S.E.J by one James Boton, and the east twenty acres by one Cook. “At the time,” as the findings go on to read, “the viewers met to lay out a road under the order issued on such petition, the plaintiff met such viewers near the southeast corner of said southeast quarter, where they proceeded to begin the location of such road under such order, and demanded to see their authority for laying out such road. The surveyor exhibited the order of the county board requiring such road laid out as now described in such petition, and plaintiff then notified said viewers and surveyor that they were then half-a-mile east of the proposed location of such road, as called for in such order, and then denied their right to proceed to lay out a road anywhere on such southeast quarter, but under such order they must go half-a-mile west of where they then were, to locate such road.
“On further conversation, Oliphant offered to permit the road to run across the northwest quarter of said southeast quarter, on the line of the old Indian trail, for $500, or to permit it to run on the east line, giving one-half the road, for $200, which the viewers declined to give; and on the representation ofi a bystander, that Henderson and Taylor would give the right-of-way for such road over their land, the viewers informed said Oliphant that they would not take any of said northwest quarter of said southeast quarter, but would locate the road east of the east line of said northwest forty acres; and thereupon Oliphant said that he had nothing to say, if they did not disturb his forty acres. And the said Oliphant then went away, and said viewers then proceeded to lay out such road on the west side of the northeast quarter of said southeast quarter, taking forty feet off said west side, and allowed damages to Boton, but none to Cook, or Henderson and Taylor, over whose land the road was located; and no damages have ever been allowed or paid for the location of such road across the northeast quarter of said southeast quar ter. The said Henderson and Taylor resided in Leavenworth county.
“Neither Henderson nor Taylor was present; and the entire road, forty feet wide, was located on the west side of their land, and from a point on the county-line about thirty rods west of the southeast corner of the southeast quarter of said section, thence northerly to the center of said quarter, thence due north across said quarter, the initial point as actually located being at White Oak Grove, on the line of Leavenworth county, and the terminal point being at the intersection of the Atchison road at Scruggs’ land.
“After the report of said viewers was confirmed, such road was cut out through the timber on said land, twenty feet wide, and the timber thrown to one side, and left there, and a road as so opened, has, ever since August 1870, been opened and traveled as a public highway, the same having been opened by the road overseer by order of the board of county commissioners, of which fact plaintiff had full knowledge.”
Neither upon the face of the petition, nor upon the county records, does it appear affirmatively that the petitioners were householders. The language of the petition is, “the undersigned persons liable to be assessed for highway labor.” And it is stated in one of the findings, that “ no evidence was offered showing that any of the signers to such petition were householders of said county, or that any bond was entered into, or that any notice that such petition would be presented was given by any advertisement set up in the county clerk’s office, and in the township of Walnut in which such proposed road was designed to be laid out; but the then county clerk was a witness, and testified that he filed all papers and proofs brought to his office in such matter, and had no knowledge of any notice whatever having been given, and he thought that the change in the description in such petition was in fact made at the time when the county board acted on same on July 8th. The above finding is made because true, and to avoid a formal bill of exceptions.”
The report, survey, and plat seem to be regular, and duly recorded. In December 1871 plaintiff bought the W.J of N.E. J of S.E. £ of section 24 from Henderson and Taylor, and received a warranty deed therefor. After plaintiff's purchase in 1871, he petitioned the county board for a vacation of this road, and appealed from the decision of the board to the district court, but thereafter dismissed the appeal, and in February 1875 commenced this action of injunction. It also appears that he cleared up a portion of this twenty acres, and made several attempts to fence up the cleared land, together with the road, but was each time prevented, so far as the road is concerned, by the defendants. The testimony taken on the trial was not preserved, so that we have only the pleadings and findings before us. To the petition was attached a transcript of the record and papers in the proceedings of the county board.
Upon these facts we remark — first, that injunction is a proper action in a case like this; that a party having the legal title to and right of possession of a tract of land, upon which the public, without any legal authority therefor, is claiming an easement in the shape of a highway, may, if his attempts to take possession of said apparent highway and close it up are resisted by the public authorities, maintain injunction to restrain them from further interference with his rights. We do not decide that this is the only remedy he may pursue, but that it is an adequate and proper one.
II. The statute of limitations has not run against this action. While it might have run as against an action of trespass, for the first opening of the road, yet. the public acquire no rights to the possession of property, by mere prescription, any sooner than individuals; and the mere occupancy of land by the public for a highway for a period of five years, vests no title thereto in them, and at the end of the five years the owner may attempt to take possession, and if resisted may maintain injunction to restrain such resistance.
III. Plaintiff was in no manner estopped by what took place at the time of the meeting of the viewers from now asserting his claims to the land occupied by the highway. All that he did then was to maintain his rights to the land he was interested in as occupant, and husband of the owner. And when they were secured, and the viewers agreed to locate the road over other lands, his right to make objection ceased, and a mere declaration ’ that he had nothing further to say, did not estop him from thereafter asserting full title and right of possession to land subsequently purchased, even to the extent of disputing the validity of the road then attempted to be laid out over the land thus purchased. Scarcely a single element of estoppel is present. Clark v. Coolidge, 8 Kas. 196.
IY. The proceedings in this case for the laying out of the road cannot be sustained under the authority granted in section 16 of the act concerning counties and county officers, (Gen. Stat. 257,) to county commissioners “to lay out, alter, or discontinue any road running through one or more townships in such county, and also to perform such other duties respecting roads as may be provided by law,” and independent of the provisions of the act concerning roads and highways. (Gen. Stat. ch. 89.) For if it were conceded that said section 16 grants-authority to the commissioners of their own motion, and without previous petition, to lay out a road, yet such grant of power would not carry with it authority to delegate the power to others, and the road in this case was not laid out by the commissioners, but by viewers appointed by them. Qui facit per alium, facit per se, may be true of individual action, but is not of official and quasi judicial action. The authority to appoint viewers is contained only in chapter 89, above cited; and for the proceedings prescribed in that chapter a petition is an essential prerequisite.
Y. Whether the -rule be, in cases of this kind, that the burden of proof is on the plaintiff to show that the road proceedings were void, or upon the defendant, after plaintiff’s proof of title to the land, to show that they are valid, need not be decided; for conceding (though only for the purposes of this case) the former to be the correct rule, yet, if the pa pers and proceedings before the county board when offered in evidence by the plaintiff do not upon their face show jurisdiction, he has made out a prima facie case, and is not compelled to go outside the record and prove by parol the non-existence of jurisdictional facts. In other words, he may rest upon the record, if the record fails to show jurisdiction. There is no presumption in favor of tribunals of limited and special jurisdiction of the existence of facts outside of those named in the record. A party asserting their existence, must prove them, or the case will stand as though they did not exist.
YI. A petition signed by at least twelve householders, is a condition precedent to the exercise of any authority on the part of the commissioners under the roads - and - highways act. Its existence is a jurisdictional fact. (Willis v. Sproule, 13 Kas. 257; Comm’rs Wabaunsee County v. Muhlenbacher, ante, 129, 132.) If the record upon its face fails to show affirmatively the existence of this fact, the proceedings will, when attacked directly by petition in error, be held void; (ante, p. 132.) If attacked collaterally, as in this case, doubtless the fact that the petitioners were householders, and reside ing in the vicinity of the road, might be proved by evidence aliunde the record; (Willis v. Sproule, 13 Kas. 257, 264, and cases there cited;) but if not thus proved, and the record does not disclose the fact, the proceedings must be held void.
We have been not a little embarrassed by the effort of counsel to make a finding serve the purpose of both a finding, and a bill of exceptions. The purposes and scope of the two are entirely dissimilar. The one narrates the evidence as it is offered, the other states the facts the court finds to have been proved by such testimony. The one states what took place at the trial, the other what existed before suit was commenced. A statement therefore, in a finding, that such evidence was or was not given, may be entirely ignored. At first we were of the impression that this would compel an affirmance of the judgment, and are far from clear that such ought not to be the decision. But to the petition is attached the record of the proceedings before the county board, and this record is not denied in the answer. This record fails to show that the petitioners were householders. Prima fade it shows that thé county board had no jurisdiction, and that the proceedings were void. This record was in evidence. There is no finding that the petitioners were householders, none that a- sufficient petition was presented, and no fact stated anywhere in the findings from which it can be inferred that a sufficient petition existed. We therefore, though with grave doubts of the correctness of the ruling, order that the judgment be reversed, and the case remanded for a new trial.
All the'Justices, concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action to recover a money judgment for the value of certain .bonds and coupons claimed to have been wrongfully issued to the plaintiff in error, defend ant below. The case was tried by the court without a jury, and judgment rendered in favor of the defendant in error, for $489,539.43, to reverse which this proceeding in error is brought. The testimony was not preserved, so that no question of fact is presented for our consideration. No bill of exceptions, or case-made, was signed, so that the case stands before us with only those matters which of themselves go upon the record. Several errors are alleged — first, in denying a motion to make the petition certain and specific; second, error in rendering a judgment without any finding, general or special, upon which to predicate it; third, the petition stated no cause of action; fourth, the statute of limitations barred all right to relief; fifth, the amount of the judgment was excessive. The petition was in these words:
(Court, and Title.) The petition of the plaintiff for cause of action shows to the court: First, that the defendant is a corporation created by the laws of this state; second, that pursuant to a resolution passed by the “Board of County Commissioners of the County of Douglas,” on the 15 th of January 1867, ordering a special election therefor, the said board of county commissioners submitted to the voters of said county of Douglas, the question of issuing bonds to said defendant, in words and figures as follows, to-wit :
“Special Election! — To the qualified Electors of Douglas County. — You are hereby notified that a special election will be held at the several voting precincts in said county, on Wednesday, February 6th, 1867, to vote on the following questions, to-wit:
“ lst.-Shall the county of Douglas subscribe Three Hundred Thousand Dollars in full-paid stock to the capital stock of the Leavenworth, Lawrence & Galveston Bailroad Company, and issue the bonds of the county therefor, in bonds payable thirty years after date, bearing interest at the rate of seven per cent, per annum from' date of delivery, to be issued to said company when twenty-four miles of said railroad track shall be completed and in full operation from Lawrence, Douglas county, via Baldwin City: provided, that no greater amount of bonds shall be issued than the amount of stock issued by said railroad company to the county of Douglas.
“ 2d.-The condition of the above is with the express understanding and agreement that the said company shall relinquish all claim to the bonds for subscription of stock heretofore voted to said company, to-wit, the 12th of September 1865.
“Ballots to be printed or written: Shall the county of Douglas subscribe the sum of three hundred thousand dollars to the capital stock of the Leavenworth, Lawrence & Galveston Bailroad Company, and issue the bonds of the county therefor upon the following conditions, to-wit, said bonds payable thirty years after date, bearing interest at the rate of seven per cent. per annum from delivery, to be issued to said railroad company upon completion and full operation of twenty-four miles of railroad track from Lawrence, Douglas county, via Baldwin City; provided, that no greater amount of bonds shall be issued than the amount of stock issued by said company to the county of Douglas; and further provided, that said company shall complete and equip twenty-four miles of said railroad track before the 1st of January 1868; and also further provided, that the condition of the above is with the express understanding and agreement that the said company shall relinquish all claim for the ’bonds heretofore voted to the company, to-wit, on the 12th day of September 1865. ‘Yes,’ or ‘No.’ Polls will be opened at nine o’clock a.m. and close at seven p.m.
“By order of the Board of Commissioners of Douglas county.”
Third, that afterward, to-wit, on the 6th of February 1867, a vote was taken in said county pursuant to said submission, at which election a majority of the persons voting voted in the affirmative, but that up to the 1st of January 1868, and for some time thereafter, twenty-four miles of said' railroad track was not completed or equipped, or in full operation, as in said ballots provided.
Fourth, that afterward, to-wit, on or about the 12th of May 1869, the defendant fraudulently and corruptly induced Geo. Cutter, Geo. W. E. Griffith, and Aaron E. Platts, who then constituted the “Board of County Commissioners of the County of Douglas,” and conspired with them, and said commissioners corruptly conspired with the defendant in fraud, of the rights of said county of Douglas, under color and pretended authority of said submission and vote, to issue to the defendant bonds of said county to the amount of three hundred thousand dollars, without the issuing to or the acquisition by said county of any stock of defendant, and without any consideration other than the nominal consideration of one dollar; and for that purpose the said George Cutter, George W. E. Griffith and Aaron E. Platts, and the said defendant, by Wm, Sturges its president, and H. J. Canniff its secretary, executed and mutually delivered an instrument in writing, of which the following is a copy, to-wit:
“This agreement, made and entered into this twelfth day of May 1869, by and between the Leavenworth, Lawrence & Galveston Railroad Company, as party of the first part, and the Board of County Commissioners of Douglas county, state of Kansas, as party of the second part, witnesseth: that for and in consideration of the sum of one dollar, and the further consideration of the surrender to the party of the first part of three thousand shares of stock in the Leavenworth, Lawrence & Galveston Railroad Company heretofore subscribed by the party of the second part on the completion of_ said railroad twenty-five miles south of the city of Ottawa, in Franklin county in said state, the said party of the first part hereby agrees and binds itself that the city of Lawrence, in said county of Douglas, shall be its present terminal point, and shall forever remain a point on its main line; and second, that the party of the first part further obligates itself that it shall and will occupy suitable depot-grounds already provided or tobe provided by said city of Lawrence, and erect suitable buildings thereon fo the transaction of the business of said railroad company.
“And the party of the first part further obligates itself that the rates of transportation for freight and passengers to and from the city of Lawrence, over said road, shall be as low per mile as the rates of transportation to or from the city of Leavenworth, or to or from any other city or station within the state of Kansas, on the line of said road.
“And in consideration of the above covenants and agreements to be kept and performed by the said party of the first part, the said party of the second part hereby promises and agrees that as soon as the iron sufficient to build twenty-five miles of railroad shall be delivered in the city of Ottawa, Franklin county, Kansas, the said party of the second part shall and will deliver to the party of the first part, or its duly-authorized agent, the three hundred one-thousand-dollar bonds, with the coupons attached, now in possession of the Treasurer of Douglas county aforesaid, in accordance with the conditions of a bond of even date herewith, entered into by Shelton Sturges, Buckingham Sturges, Frank Sturges and Albert Sturges, to the said party of the second part. And the said party of the second part further agrees, that they will surrender the three thousand shares of railroad stock heretofore subscribed by the party of the second part in the said railroad company, in accordance with the provisions hereinbefore mentioned.
“ In witness whereof, we have hereunto subscribed our names, and affixed our official seals, on the day and year first above mentioned.
“Wai. Sturges, Prest, [seal.]
“Attest: H. J. Cannier, Secretary.
Geo. Cutter,
[seal.] G. W. E. Griffith,
Aaron E. Platts,
County Commissioners of Douglas Co., Kansas’’
That at the same time, and for the same purpose, and as a part of the same transaction, the said defendant made and delivered to said commissioners certificates of stock in said company to the amount of $300,000, and the said commissioners, for the purpose aforesaid, thereupon immediately assigned, released and re-delivered said certificates of stock to the defendant, and the defendant then and there for the same purpose received such release and transfer, well knowing that the same was unlawful, and was a fraud upon the rights of said county; that no subscription for stock of the defendant was ever made by the board of county commissioners of said county, as the plaintiff is informed and believes, and plaintiff alleges that if any subscription was ever made it was made pursuant to said fraudulent and corrupt conspiracy, and was void.
Fifth, that afterward, on or about the 9th of July 1869, in furtherance of the aforesaid fraudulent and corrupt purpose, the said commissioners, George Cutter, George W. E. Griffith and Aaron E. Platts, executed and delivered to the defendant three hundred bonds of the said county of Douglas, of the amount of one thousand dollars each, da[ed January 1st 1868, and payable thirty years after date, with interest at seven per cent, per annum, payable annually, and with coupons thereto attached for said interest, the coupons for the first year’s interest falling' due on the first day of January 1869, and the others falling due on the first day of January of each year thereafter until the principal would become due, the coupons falling due each year being for the amount of the previous year’s interest on the principal of said bonds; that the said bonds and coupons were made and delivered by the said George Cutter, George W. E. Griffith and Aaron E. Platts, and received by the defendant, without an adequate or valid consideration, or any consideration other than the nominal consideration of one dollar as aforesaid; and that said bonds bore date, and by their terms drew interest from a date long anterior to the issuing thereof and long anterior to the time any subscription was made for stock (if any ever was made), and said bonds were ante-dated by said commissioners and received by the defendant so ante-dated, knowingly, with the fraudulent intent that the said principal and interest should become due and be collectible earlier than they would be if the bonds were dated at the time they were made out, or at the time such subscription was made or to be made.
Sixth, that the coupons on said bonds, calling for the interest thereon for the years 1868,1869, and 1870, respectively, were, at the time they purported to become due, presented by the defendant to the treasurer of said county of Douglas, and the said interest paid by said treasurer to said defendant, amounting in the aggregate to sixty-three thousand dollars.
Seventh, that said bonds and coupons are in form negotiable, and the same or a portion thereof have been negotiated by said defendant, and transferred to third parties out of this state, but of what portion has been negotiated plaintiff is ignorant.
Wherefore plaintiff prays the judgment and decree of this court, that all said bonds and coupons under the control of the defendant be brought into court and delived to the plaintiff, and that the plaintiff recover in money the amount of all the aforesaid bonds and coupons not so brought into court and delivered to plaintiff, and the amount of money so paid as aforesaid by the plaintiff or the treasurer of said county of Douglas for interest on said bonds, with interest thereon from the date of such payment, and for such other and further relief as may be equitable and just, and the circumstances of the case may require, with costs of this action.
John Hutchings,
Covmiy Attorney for the County of Douglas.
A motion was thereupon filed by the defendant, to “require the plaintiffs to make their petition more specific and certain, in this, to-wit: -That the plaintiff state the facts showing the fraudulent conspiracy of the defendant with George Cutter, G. W. E. Griffith and Aaron E. Platts, with relation to the bonds in the petition t set forth; that the plaintiffs show or state the facts showing that the defendant ‘ fraudulently and corruptly’ induced, and the means whereby they induced, the said Cutter, Griffith and Platts to deliver said bonds in the petition mentioned to this defendant.” This motion was overruled, and this is the first alleged error. As a preliminary objection to this, it is insisted that the order overruling the motion does not disclose any particular part of the petition to which the motion was directed; that the motion does not become a part of the record until brought on by bill of exceptions, or case-made; and that therefore we are not advised as to its extent, and must presume in favor of the ruling of the district court, that it was directed to such portions of the petition as are full, specific and certain. In other words, if any portion of the petition is not open to objection in this respect, and the motion only ran to such portion, the court properly overruled it. Error is not presumed; it must be shown. It is not shown that the motion ran to other than the unobjectionable portion; therefore it is not shown that the court erred. We do not consider this objection well taken. It would seem from the order, that the motion ran to the entire petition. It reads:
“And now this cause came on to be heard, on the motion of the defendant to make the allegations of the petition more specific; and the parties appearing by their respective attorneys of record, the court, on consideration of said motion, doth overrule said motion — to which ruling of the court the defendant excepted.”
“The allegations of'the petition,” seems to imply all the allegations, and not simply a portion of them. But the motion itself is a part of the record. While it is true, that the authorities cited by defendant in error, or some of them at least, assert that a motion does not become a part ’ r ^ recor(j unless brought on by a bill of
exceptions, (State v. Marshall, 36 Mo. 400; Cornell v. Davis, 16 Wis. 686; Thompson v. Backenstoles, 1 Oregon, 17,) yet such has not been, we believe, the general understanding of the profession, or the general practice and ruling in the courts of this state. In MoCullagh v. Allen, 10 Kas., 150, we held that a motion for a new trial becomes, when filed, a part of the record, and need not be incorporated in a bill of exceptions. And this was but a recognition of the general practice already prevailing in the state. True, the motion is not generally entered upon the journal. Neither are the pleadings. But the judgment based upon the pleadings, and the order made upon the motion, must be. Gen. Stat., p. 707, §414; page 769, §705. And .can there be any doubt that the pleadings are a part of the record? Again, the law of 1862 required a final record in every case, unless waived; and'the laws of 1868 provide for one when ordered by the court. (Comp. Laws 1862, p. 189, §400; Gen. Stat., p.707, §415.) This “ record shall be made up from the petition, the process, return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court. * * * Evidence must not be recorded.” (Gen. Stat., p.707, §417.) The words, “all material acts and proceedings of the court,” are broad enough to include motions to reform the pleadings. Indeed, it may be stated as a general proposition, that the spirit and tendency of our code of procedure, civil and criminal, is to get onto, and make a part of the record, as much of the proceedings as possible. Notice the provisions as to instructions, and the number of journals and dockets. We conclude then, that the motion, and the ruling of the court thereon, are properly before us for consideration.
Ought it to have been sustained? And if so, was there substantial error in overruling it? The substance of this petition is, that the company obtained the bonds of the county when it ought not to have received them, and ought therefore to return them, or their value. It charges that the company obtained these bonds by means of a fraudulent and corrupt combination and conspiracy between it and the gentlemen at that time representing the county as its board of commissioners. Now when this general charge of combination, fraud, and conspiracy is made, the company comes in and asks that the facts may be stated showing this fraud and.wrong. Was money paid to these commissioners? and if so, how much? Were a portion of these bonds given to them? and if so, how large a portion? Were lands or other property transferred to them? and if so, what amounts, and when? Were political inducements, or promises of office, or other reward, held out to them? In short, what was this conspiracy, its character, extent, and terms? It is a general proposition, that when fraud is charged, and made the basis of recovery, a mere general allegation of fraud is insufficient; the facts showing the fraud must be stated. In Capuro v. Builders Ins. Co., 39 Cal. 124, the rule is thus declared: “The rule undoubtedly is, that when a party relies upon fraud, either to support his cause of action, or in defense, he must set up the facts which constitute the fraud. It follows, as a necessary consequence of that proposition, that he can prove only those facts which he has set up.” See also, Kinder v.Maoy, 7 Cal. 206; Simple v. Hagan, 27 Cal. 166; Kentv. Snyder, 30 Cal. 666; Minday v. Knight, 3 Hare, 497; U. S. v. Crafton, 4 Cent. Law Journal, 442. Mr. Justice McLean, in Moore v. Green, 19 Howard, 69-72, says: “When fraud is alleged as a ground to set aside a title, the statute does not begin to run until the fraud is discovered, and this is the ground on which the complainant asks relief. But in such a case, the bill must be specific in stating the facts and circumstances which constitute the fraud; and also as to the time it was discovered.. This is necessary, to enable the defendants to meet the fraud, and the alleged time of discovery.” In Williams v. First Pres. Society, 1 Ohio St. 478—505, it is held, “Where the injury complained of is the result of actual combination and fraud, they must be averred, not in a mere general manner, but with the same- precision that is required in other averments of fact.” In this very case the statute of limitations is relied on as a bar, and it is claimed the transactions, whatever they were, took place more than two years before the commencement of this actiou. The quick and ready reply of the learned counsel for the county is, that the statute commences to run only from the time of the discovery of the fraud. The reply is correct, but instantly suggests the further query — what fraud? There can be but one answer, and that is, the fraudulent combination and conspiracy which it is alleged existed, but the nature and terms of which are not disclosed. To obviate this objection counsel say, and we quote from their brief:
“Intent is a pleadable fact, and it is not necessary, nor is it in general proper, to set out the evidence by which that intent is to be proved. And the same is true of intent to defraud. It should be pleaded as a fact; and the evidence to prove it, should not in general be pleaded. The defendant had no right to a motion to require us to show what evidence we proposed to give to sustain the petition. If on the trial we offered evidence of facts which should have been pleaded, the defendant had his right to object; and if his objection was overruled, to except, and bring that exception here, which he has not done. Besides, the facts which we clearly stated, if true, were conclusive evidence of a fraudulent intent and a conspiracy to defraud the county. That the issuing by county officers of county bonds without authority, and without other than a nominal consideration, and the receiving of them by one knowing the facts, and seeking to make them available, is a fraud by both against the county, is an irresistible conclusion of law; and as they are presumed to know the law, the presumption is absolute that they intended to defraud. And. as one could not issue and deliver, and the other receive, without mutual agreement, they must have conspired to commit the fraud. Therefore, the proof of the agreement set up, and that it was carried into effect, was sufficient evidence of all the fraud and collusion we charged, and all that was specially set forth in the petition.”
And again:
“We call attention to the rule of pleading which we think governs this case. Where conspiracy is alleged, and the pur pose to be’ accomplished is unlawful, it is not necessary to state the means by which the conspiracy was effected. Lord Mansfield, in Rex v. Turner, 13 East, 230, uses the following language: ‘The conspiracy is stated, and its object. It is not necessary that any means should be stated.’ The distinction must be drawn between the case at bar, and that in which the act charged only becomes illegal from the means used to effect it. In this latter case such averments of fact should be made as explain the illegality, or constitute the, fraud. See Russell on Crimes, vol. 2, pp. 691, 692.”
In other words, the claim of counsel is, that inasmuch as the delivery of the bonds was without due authority, therefore it was done fraudulently, corruptly, and in pursuance of a corrupt conspiracy and combination between the comissioners and the company, and that the phrases asserting fraud, conspiracy, etc., are mere adjective clauses, qualifying the acts distinctively charged. It would follow from this, that if all these mere adjective clauses or phrases were omitted the petition ought still to disclose a complete cause of action; that the acts done would give a just basis for relief, independent of the motives for such acts, and the influences and inducements by which they were accomplished. Or to state it in different language, if the company honestly believed itself entitled to these bonds, and the commissioners honestly believed that the county ought to issue them, and in pursuance of this honest belief, and without other desire than to do and discharge the duties imposed upon them as representatives of the county the commissioners did in fact issue and deliver .'them, that still the county ought to recover. After giving the matter the most careful consideration we are constrained to hold that the petition does not carry or justify x " such a construction. Nor did the delivery of the bonds under the circumstances charged, if done honestly, and without fraud, conspiracy, and combination, entitle the county to any relief. The petition plainly alleges that the acts of the commissioners were in pursuance of a fraudulent and corrupt conspiracy and combination between them and the company. It is not consistent with its language, to hold that the commissioners were acting in an attempted honest discharge of their duty, or in honest effort to further and protect the interests of the county whose representatives and agents they were. It does not simply aver that the acts were in excess, or in contravention, of their authority as agents, and therefore not binding on their principal; but adds, that these acts were done by them in pursuance of a fraudulent and corrupt conspiracy between them and the recipients of the bonds. As it stands, it does not simply impute error of judgment, or mistaken action; it brands them with personal infamy, and makes this personally-infamous conduct the basis of the county’s cause of action. It is doubtless true, that as to.many acts of public officials it is immaterial with what motives or under what influences they are done. Thus, the salaries of the various judges of the district and supreme court are fixed by law. If at the appointed time the auditor of the state draws his warrant in favor of one of such judges for the salary then due, the act is binding on the public, and it is entirely immaterial what may be passing in his mind, or what motives influenced him, or, so far as the the state is concerned, whether such judge pays him more or less money to obtain the warrant. No allegation of corruption, conspiracy, fraud, or combination, will give to the state the right to recover the salary thus paid to such judge. Whatever steps he may have taken to acquire the money, he has only obtained that which was legally his due. On the other hand, for instance, under the laws of 1868 the probate judge received certain fees, and “such ‘other compensation as may be allowed by the county commissioners, not to exceed five hundred dollars per annum.” Gen. Stat., p. 273, § 85. Here it was not obligatory on the commissioners to make any allowance, or to pay anything out of the county funds. Suppose a probate judge paid to the commissioners personally one hundred dollars, and thus bribed them to allow and pay him out of the public treasury five hundred dollars : can there be any doubt but that the county could recover this five hundred dollars? or that this recovery would be based upon the fact that the allowance had been obtained by a fraudulent and corrupt conspiracy and combination between the commissioners and the judge? or, that in an action brought therefor by the county, the judge would have a right to insist that the petition should allege, not merely the existence of a fraudulent and corrupt conspiracy and combination, but also its nature and extent? And yet the allowance, if made by the commissioners honestly, and with unbiased judgment, would have been binding on the county. It was not binding, because of the fraudulent combination and conspiracy by which it was obtained. But, say counsel, the facts stated show the fraudulent intent, and the conspiracy; therefore any further statement of the means, nature, and extent of the fraud and conspiracy, was unnecessary.
■ Let us look for a moment at the facts alleged, omitting all averments of fraud, conspiracy, corruption, and the like: On 6th February 1867, a proposition was submitted to the qualified electors of Douglas county to subscribe for $300,000 stock in the railroad company, and issue a like amount of county bonds therefor. This proposition was carried. By it, authority was given to the commissioners to subscribe tor the stock and issue the bonds. The county was not bound as a subscriber, for -the vote was no subscription. But it had given authority for the subscription. It had placed this authority in its commissioners. It had given them discretion to bind the county by subscription. If that discretion was honestly exercised, and the subscription actually made, the county (waiving for the present the question of condition) would be bound thereby. If that discretion was not honestly exercised, but the subscription was obtained by the bribery and corruption of the commissioners, the county would not be bound. Nor was a mere formal subscription on the books of the company an essential prerequisite to the issue of the bonds. A delivery of proper certificates of stock by the company to the county at the time of the issue of the bonds, would have been sufficient, and valid, and binding on both parties. And this stock, thus re ceived, was within the power of the commissioners to sell and transfer. Mo. R. Ft. St. & Gulf Rld. Co. v. Miami County, 12 Kas. 482. Nor was there any legal objection to the commissioners negotiating and making arrangements to sell the stock prior to its actual receipt. Having determined to issue bonds and receive the stock, it was perfectly legitimate for them, if they deemed it more for the interests of the county to sell than to retain the stock, to make all arrangements for the sale before the actual receipt of the certificates, so that when the certificates were received they might be immediately transferred to the purchaser from the county. There remain therefore but two objections to the binding force and validity of the acts of the commissioners in respect to both bonds and stock, first, that the conditions prescribed in the vote were not complied with, and that therefore the authority to act at all never vested in the commissioners; and second, that there was no adequate consideration for the sale of the stock. Several conditions were named in the submission to the people, and prescribed by the vote. A failure of only one of those conditions is alleged, viz., a failure to complete and equip twenty-four miles of railroad track before the 1st of January 1868. The allegation of the petition is, “that up to the 1st of January 1868, and for some time thereafter, twenty-four miles,” etc. How soon thereafter this condition was complied with, is not disclosed — perhaps one day, perhaps a year. Was time, in this, so much a matter of substance that-a failure in this respect was an absolute revocation of authority in the commissioners, or, more correctly, an absolute bar to the vesting of any authority in them? or, was it a matter which could be waived by the commissioners, or if not binding on the county when waived by the commissioners alone, yet binding when waived by the commissioners in issuing the bonds and by the people in paying the intérest thereon for a series of years ? It is doubtless true, that the power to issue bonds in aid of railroads is not one of the ordinary powers of a county. Indeed, in the judgments of many, and among them of the writer of this opinion, it is a power which can never be granted to a county, or any other municipal organization. This question was brought Before this court years since, and the opinion then expressed by the writer has only strengthened with passing years and increasing information. If he may be permitted to paraphrase the words of the wisest of men, he would say to every one, Look not thou upon the voting of railroad bonds when it is new, for at the last it biteth like a serpent, and stingeth like au adder. But the judgment of the court then sustained the power, and repeatedly since that time has the power been recognized by both the judicial and legislative branches of the government. City of Troy v. A. & N. Rld. Co., 11 Kas. 519; Lewis v. Comm’rs Bourbon Co., 12 Kas. 186; Gulf Rld. Co. v. Miami County, 12 Kas. 230; Railway Co. v. City of Ft. Scott, 15 Kas. 434; Railway Co. v. Comm’rs Anderson Co., 16 Kas. 302; A. T. & S. F. Rld. Co. v. Comm’rs Jefferson Co., 17 Kas.; Leavenenworth Co. Comm’rs v. Higginbotham, 17 Kas. 62; Laws of 1872, p. 110, ch. 68; Laws of 1873, p. 214, ch. 109; Laws of 1874, p. 41, ch. 39; Laws of 1875, p. 44, ch. 39; Laws of 1875, p. 68, ch. 50; Laws of 1875, p. 85, ch. 59; Laws of 1875, p. 190, ch. 125; Laws of 1876, p. 212, ch. 106; Laws of 1876, p. 217, ch. 107; Laws of 1877, p. 190, ch. 141; Laws of 1877, p. 191, ch. 142; Laws of 1877, p. 193, ch. 143; Laws of 1877, p. 194, ch. 144. And the people have accepted these declarations of the legislative and judicial departments as conclusive, and voted and issued bonds to the extent of millions of dollars. "Whatever therefore may be individual opinions, it seems clear that at the present we must look upon the issue of railroad-aid bonds as the settled policy, and their validity as the settled law of the state. This power is, as stated, not one of the ordinary powers of a county. It is an extraordinary power, for which express authority is required. Lewis v. Comm’rs Bourbon Co., supra. But though an extraordinary power, when attempted to be exercised, the validity of such exercise is to be determined by general rules regarding municipal action. It requires plain warrant of authority. It must be exercised in conformity to prescribed forms. Nothing is taken by implication. But it is not a penal proceeding, demanding all the strictness of the ancient rules of the criminal law. Its validity does not depend upon the crossing of every t, or the dotting of every i. Any substantial departure is fatal. Thus, in A. T. & S. F. Rld. Co. v. Comm’rs Jefferson Co., the majority of the qualified electors actually voted against the proposition. In Lewis v. Comm’rs Bourbon Co., the same was true when the proposition was presented by itself, and while afterward an apparent majority was secured to an equivocal indorsement of it, it was only by uniting two propositions, enabling the strength of the one to overcome the weakness of the other, and thus secure a majority for both. There never was a direct and unequivocal assent of the people to the single proposition. In Railway Company v. Comm’rs Anderson Co., the authority granted to the. commissioners was never .fairly exercised by them. Through the wrongful efforts of the railroad company two of the commissioners were gotten together in an illegal session, and without consultation with the other attempted to bind the county by a subscription of stock and an issue of bonds. The discretion vested in the three commissioners was never exercised, and its exercise was prevented by the wrongful and fraudulent acts of the railroad company.
Now the failure charged against the railroad company in this case, is a failure to complete the specified number of miles of road within the given time; not a failure to complete at all. The work was done, but not when it was stipulated to be done. How great was the delay, we are not informed. One day would satisfy the allegations 0f the petition. This matter of time was waived by the commissioners, and the bonds were issued. If the commissioners had refused to make the waiver, it is a different question 'whether the company could have compelled them to make it. But they did waive it, and did issue the bonds. Can this waiver now be repudiated, and the bonds or their value recovered? .But it is said that, being agents, and only agents, the commissioners had no authority to bind the county, the principal, by any waiver. It was not a part of the authority given, which was to do an act upon and only upon certain named conditions. But the failure on the part of the railroad company was in a matter of public knowledge. Whether a railroad is completed to a certain point within a certain time, is a matter which cannot be concealed from public knowledge. Anybody who had any interest in the matter could ascertain for himself. The people generally, the county, the principal in this matter, the obligor and payor of these bonds, had fullest and amplest opportunity and means of ascertaining this fact. Yet with this matter so public and open as this, the county not only raised no question as to this waiver for over two years, not only thus by silence gave consent, but also paid the coupons on these bonds for the two years as they were presented when due, thus in about the clearest way possible acquiescing and ratifying this waiver by their agents.
So far as the other matter is concerned, the adequacy of the consideration for the sale of the stock, we scarcely need do more than refer to the case of the M. R. Ft. Scott & G. Rld. Co. v. Comm’rs Miami County, 12 Kas. 482. The completion of an additional twenty-five miles of road, and through rates for local freight and passengers, seem as adequate consideration for the stock as the stock was for the bonds. But it is unnecessary to pursue this branch of the case. From the considerations we have already named, it seems to us that if all allegations of fraud, combination, corruption, and conspiracy, are stricken from the petition, no cause of action remains. There was therefore substantial error in overruling the motion to make the petition more definite and certain, and for this the judgment must be reversed, and the case remanded for a new trial.
The magnitude of the amount involved, the’ interest felt in the case by the parties, and the effect which it will have as a precedent in other controversies between municipalities and raUroa,ds, have caused us to give the questions involved a most careful examination. • We have concluded that, if good, faith characterized all the conduct of the commissioners, the county is bound by their action; if fraud and corruption, then the company was entitled to have the facts showing such fraud and corruption fully stated, that it might go into trial knowing specifically what accusations it had to meet. It seems to us that this is right, beyond all mere technical considerations, and independent of all purely legal questions. As it now stands, three citizens of the county, honored by it with official trust, stand branded by the charge of the county and the judgment of the court with personal infamy. A like brand rests upon the officers of the company. It is due to all parties, the county making the charge, the commissioners of the county against whom the charge is made, that there be no indefiniteness in this accusation, but that it be made full, specific, and definite.
Another objection is, that the record discloses no finding upon which to predicate the judgment. The entry on the journal is as follows:
“And the court having duly considered the pleadings, evidence, and arguments, doth adjudge and decree that the board of county commissioners of the county of Douglas, plaintiff, do recover of and against the said Leavenworth, Lawrence & Galveston Railroad Company, defendant, the sum of $489,539.43 damages, and the costs of the plaintiff herein expended.”
The statute in reference to findings is section 290 of the code, Gen. Stat., p. 684, and is as follows:
“Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its finding except generally for the plaintiff, or defendant, unless one of the parties request it, with the view of excepting to the decision of the court upon the questions of law involved in the trial; in which ease the court shall state in writing, the conclusions of fact found, separately from the conclusions of law.”
On the part of the defendant in error it is insisted, that by plain implication of the language, a general finding need not be in writing, and that therefore we must presume that the. court orally announced one; and further, that if a written finding is required, the omission in , ° A . this case is not a substantial error, or one working any prejudice, as the judgment shows exactly what the finding was. The plaintiff in error cites very many authorities from different states holding that a written finding is essential, and that a failure in the record to show one is fatal to the judgment. In addition to this long list of authorities, see a late case from California, reported in 3 Law & Eq. Rep., p. 407, in which the supreme court of that state hold that a finding “that all the material facts set forth in the complaint are true,” will not support a judgment for the plaintiff. We are all of the opinion that the statute requires a written finding, and that a failure to incorporate one in the record is error; and Mr. Justice Valentine is inclined to the opinion that such an omission is fatal to the judgment, and of itself sufficient to1 compel a reversal, while the Chief Justice, and the writer of this opinion, are on the other hand inclined to regard the error, as in a case like the present, working no prejudice to the substantial rights of the defendant. We do not deem it necessary to consider any other question.
The judgment will be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
In the trial in the district court, it appeared that this action was brought by Reisner, defendant in error, a hotel-keeper, against one H. Hyde, and the Atlantic & Pacific railroad company to recover $104, and interest, for board, room, and lodging furnished to one William Hurdle, a disabled employé of the railroad company, from April 2d to May 1st 1873, at two dollars per day, and also for the services of an attendant for nineteen days at one dollar per day, and for certain bandages of the value of three dollars. The following is Reisner’s testimony, and is all the evidence introduced to the court:
“I am ‘the plaintiff in this action. In the months of April and May 1873, I was keeping a hotel, the same one that I now keep, and it is called the Tremont House. Mr. Hyde was the agent of the railroad company at this place, and attended to their business here. A man by the name of Hurdle got hurt while working for the company as a brakeman, somewhere below town, on a bridge. Mr. Hyde had him brought to my hotel, and sent for a doctor to care for him, and employed me to board, take care of, and nurse him, and said that the company would pay me, and that he would guarantee the payment of my account. He employed me to board him for the railroad company, as agent for the said company. I knew that he was doing business for the company, as agent, during this time. I asked him once or twice for pay, but have never received a dime. My account here in court, and annexed to the petition, is just, and the services reasonable, and worth the amount charged in my bill. This man was sick, and we waited on him nearly a month. I hired a person to take care of him. I knew Mr. Hyde was the general agent of said road at Atchison, and station-agent for this company, and he said the company would pay me, and that he would guarantee it; and neither said Hyde nor said company have ever paid me any part of my said' account.”
Judgment was rendered against both defendants in the court below; and the railway company brings the record here, and seeks to reverse the judgment against itself. The railway company assumes in the argument presented to this court, that Hyde, the person who made the arrangement with the defendant in error for the board and services sued for, was only a station-agent of the railway company, and that neither his duties nor his authority gave him power to bind the company, so as to make it liable in this action. The authorities cited sustain the proposition that a station-agent of a railroad company is not authorized, by virtue of his position as such agent, to employ a hotel-keeper, at the expense of the company, to attend to one of its brakemen, injured while working for the company, nor to furnish such employés with board and lodging while disabled. Tucker v. St. Louis, K. C. & Northern Rly. Co., 54 Mo. 177; Cooper v. N. Y. Central & Hudson River Rld. Co., 6 Hun. 276; Stephenson v. N. Y. & Harlem Rld. Co., 2 Duer, 341; Cox v. Railway Co., 3 Exch. 268. The testimony however, brief as it is, discloses the fact that Hyde was the general agent of the company. We cannot ignore this evidence. Upon it rests the liability of the plaintiff in error. The power and authority of the general agent of a railroad company is much greater than that of a station-agent. In the case of a general agency, the principal holds out the agent to the public as having unlimited authority as to all his business. When the witness testified that Hyde was the general agent of the road at Atchison, he thereby gave evidence that the railroad company held out to the public such person as its agent in all its business and employment. In other words, the general agent of the company is virtually- the corporation itself. It has been usual in the construction and operation of railroads in this state for some person therewith connected to act as general manager, or general agent, of the railroad being constructed or operated; and such general manager, or general agent, has had while occupying this position the full control of all the company’s affairs, and complete direction over its treasury. General manager, and general agent, are synonymous terms.
It does not appear from the evidence that there was any legal liability on the part of the railroad company to furnish board and attendance to the brakeman. Still, we do not think this proof was necessary to establish the liability of the company to Reisner. It was proven that the brakeman was hurt while in the employ of the company; and it is not unfrequent for railroad companies and other corporations to furnish board and medical attendance to employés disabled in the service of such companies, even when the injuries are not the result of the negligence of the corporation. Such action, whether resulting from humane or selfish motives, is certainly to be commended; and no court would hold the contract of a railroad company duly entered into for such an object as ultra vires, and incapable of being enforced. Hyde, being the general agent oft the company, and having unlimited authority as to all its business, had the power to make the arrangements with Eeisner, testified to, and the company was liable upon his engagement. The defendant in error was not compelled to institute inquiry as to the moral' or legal liability of the railroad company to take care of the disabled employé before receiving him into his hotel, after the general agent of the company had agreed that the company would pay for the board and service. I. W. & W. Rly. Co. v. Prince, 50 Ill. 26; I. W. & W. Rly. Co. v. Rodrigues, 47 Ill. 188. See also, M. & O. Rld. Co. v. Taft, 28 Mich. 289, 294. It may be, that the witness was mistaken as to the position held by Hyde; and the feet that the testimony shows that Hyde was the general agent of the company, and also station-agent, gives some force to the suggestion. We suppose it is not usual for a general agent of a railroad company to. also occupy the office of station-agent of the same, company. But in this case the evidence is conclusive upon the point, and we are compelled to accept it as true. The unfortunate position in which the counsel for the plaintiff in error were placed by the action of the receiver of the Atlantic & Pacific railroad company dispensing with their services on the trial, prevented any cross-examination of the witness by them, or the presentation of any contradictory testimony; in fact, prevented any defense being made to the account sued on. Eor all this, the defendant in error was not responsible. And as there was legal evidence which tended to support and uphold the judgment of the district court, we cannot now interfere.
The judgment will be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This action was originally a proceeding instituted by the Missouri, Kansas & Texas Eailway Company to obtain the right-of-way for its railroad through the various tracts of land along its route in Neosho county. The plaintiff in error, Squire Eosa, was aggrieved by the assessment of damages made concerning one of said tracts of land, and thereuPon he appealed to the district court. In the district court he filed a petition setting forth the ^ac<.g cage_ ^is petition the railway company demurred, on the ground that it did not state facts sufficient to constitute a cause of action, and the court below sustained the demurrer. The plaintiff then filed a new and amended petition, setting forth the facts of his case in greater detail. The defendant again demurred, for the same reason as before, and the court again sustained the demurrer. The plaintiff now brings the case to this court, and assigns for error the said rulings of the district court. Whether the court below erred in sustaining the first demurrer, we think is wholly immaterial; for even if the court did err, the plaintiff by filing a new and amended petition, and taking his chances upon that petition, entirely waived any error that may have been committed by sustaining the demurrer to his first petition. (Clearwater v. Meredith, 1 Wallace 25, 42; Dean v. Gecman, 44 Ill. 286; Judge v. Moore, 9 Fla. 269; Young v. Martin, 8 Wallace, 354; Mills v. Martin, 2 Nebraska, 299, 308, 309.) The only substantial question then for us to decide is, whether the court below erred in sustaining the demurrer to the new and amended petition. Or in other words, the question is, whether the new and amended petition stated facts sufficient to authorize the plaintiff to recover damages of any kind from the defendant.
All the damages alleged to have been committed, are damages to said land. No claim is made for injury to crops, or to buildings, or to improvements, or to anything else except the land itself.' And we shall assume that the petition sufficiently states the injury to the land, and shows that such injuryrwas greater than the amount allowed by the condemnation commissioners. We shall also assume that the petition states sufficiently that the railway company has no right or interest" in or to said land except such rights or interests as it may 'obtain by virtue of these condemnation proceedings. Indeed, we shall assume that the petition is sufficient in every respect, provided it sufficiently states or shows that the plaintiff has any such interest in said land as will enable him in an action like this to recover for damages or injuries done to the land itself. Now the petition states and shows, that said land is a part of the Osage ceded lands, acquired by the government of the United States under the Osage Indian treaty of September 29th 1865. (;U4 U. S. Stat. at Large, 687.) The plaintiff settled upon said land in January 1867, and has continued to occupy the same as his homestead ever since, and has made lasting and valuable improvements thereon. But there is no claim, or the slightest pretense, that the plaintiff has any title to said land. The title still remains in the government of the United States. On March 3d 1870, these condemnation proceedings were commenced by the railway company. On April 12th 1870, the plaintiff Rosa took his appeal from the assessment of the commissioners to the district court. On January 11th 1872, the plaintiff filed his said amended petition. On April 11th 1872, said demurrer thereto was filed. And in December 1872 the demurrer was sustained by the court below, as before stated. It will therefore be seen that the plaintiff’s amended petition not only fails to show that the plaintiff is the owner of said land, but it shows affirmatively that he is not the owner, that he has no interest therein, and that the government of the United States is the owner thereof. Upon what ground then the plaintiff would expect to recover for injuries done to the land itself, done to the in heritance, is not very clear.. The plaintiff has never had any interest in the land. From the time that he settled upon said land until April 10th 1869, he had the same right to purchase said land that others had, and had no greater right; for under the treaty of 1865 said Osage ceded lands were to be sold “ on the most advantageous terms for cash,” and “no preemption claim or homestead settlement shall [was to] be recognized.” From April 10th 1869-, to April 10th 1871, the plaintiff had the privilege of purchasing said land from the government for $1.25 per acre. (16-U. S. Stat. at Large, 55.) Since April 10th 1871, he has had no greater right or privilege to purchase said land than any other person, and no better terms have been extended to him than to any other person. But whatever has been his right or privilege to purchase said land, he has never exercised such right or privilege by purchasing the same; and therefore we think he cannot recover for injuries done merely to the land.
This action differs essentially from the action of trespass quare clausum fregit, and other actions referred to by counsel for plaintiff. In the first place, the defendant in this action must not be considered as a mere wrongdoer, as the defendants in the actions referred to are. The defendant in this case is attempting by a proceeding under the statute (Gen. Stat. 212, et seq.; and amendments, Laws of 1870, page 155,) to procure the right-of-way for its railroad, and is therefore not treated as a mere wrongdoer, and held bound, as a mere wrongdoer often is, to treat and consider the person in possession of the land as the owner thereof, when the fact is otherwise. Second, the plaintiff in this case has no title whatever. He does not even have that incipient title which a trespasser upon lands not belonging to the government of the United States may have by taking possession of the land and claiming it as his own. (Wood v. M. K. & T. Rly. Co., 11 Kas. 348, et seq.) In the cases referred to by counsel, the defendant was not only a mere wrongdoer, but the title to the property had also passed from the government of the United States. Third, the action of trespass quare clausum, fregit is an action merely for injury to the possession. The plaintiff may recover in that action without the slightest claim of title. He may indeed recover against a mere wrongdoer, although his possession is itself a trespass upon the rights of some other person. Nelson v. Mather, 5 Kas. 153; Fitzpatrick v. Gebhart, 7 Kas. 46; Pacific Rly. Co. v. Walker, 12 Kas. 603, 604. Generally, a mere wrongdoer is not allowed to dispute the title of the person whom he has injured, but that is not this case. In this kind of case the defendant is bound to pay for only such damages as the defendant causes, and these damages go only to such persons as sustain the loss, and in exact proportion as such persons do sustain such loss. Such damages are not to be paid for twice — once to the party in possession, and once to the real owner of the land — as damages are sometimes required to be paid by a mere wrongdoer. In this kind of proceeding, damages are paid to the person or persons entitled to receive the same, without any regard to who has possession. Damages done to crops, are to be paid to the owner of the crops; damages done to the land, are to be paid to the owner of the land; and damages done to anything else, real or personal, are to be paid to the person who sustains the loss. If the land belongs to one person only, of course all the damages to it are paid to that person. But.if the land belongs to two or more persons, then the damages to it are paid to the several owners in proportion to their respective interests therein. And the same rule prevails with respect to everything else on the land, or connected therewith. A person therefore who has sustained no loss by the establishment of the right-of-way, cannot recover any damages in this kind of proceeding. Now the plaintiff by his amended petition, shows that he has not sustained any loss, and that he cannot sustain any loss by the establishment of the right-of-way for the defendant’s railroad, and therefore he cannot recover any damages in this case.
The judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by the board of commissioners of Morris county against John B. Munson, as clerk of the district court, and the other defendants below, as his bondsmen, to recover the sum of $600, which plaintiff below alleged had been received by the said Munson in his official capacity as said clerk, as a part payment upon two several judgments before that time obtained by said board of commissioners, against John R. Horner and others, and which said judgments were then remaining of record unsatisfied in said clerk’s office; and which said sum of money the said Munson had refused to pay over to said board on demand. The defendants answered, by admitting that Munson was clerk of said court, that said defendants executed the bond as alleged in the petition, and that said board had recovered a judgment against Horner and others, but denied generally all the other allegations of the petition. Upon these pleadings the case was tried, and judgment was rendered in favor of the board of commissioners for the sum of $600, and costs.
Upon the trial, it appeared that the cases against Horner and others had been commenced for the board of commissioners by Duncan McDonald, who was at that time county attorney of Morris county, but that before the judgments were obtained his term of office had expired, and A. Moser had been elected as his successor at the election held in November 1874. There was also the testimony of the county clerk, that the records of his office showed no employment of McDonald in the cases subsequent to the expiration of his term of office; the testimony of the chairman of the county board that McDonald was not employed, and of Moser that he never recognized McDonald as having any connection with the case. It also appeared that $3,000 had been properly received by the clerk on the Horner judgments above referred to, and paid by him over to McDonald, and by the latter, save $600 which he claimed as attorney-fees, paid over to the county treasurer. The journal entries of the two judgments read, that the plaintiff appeared by McDonald as well as by Moser. Munson was clerk at the time of these entries, but by whom they were-.prepared, does not appear. There was testimony also that Munson said he knew that McDonald’s term of office had expired, but thought it was his duty to prosecute the cases he commenced to final judgment, and that the county commissioners were trying to beat him out of his fees. No special findings were made, but only a general finding for plaintiff.
The clerk having in his official capacity properly received the money due on the judgments to the plaintiff therein, can defeat this action only by showing that he had paid the same over to the plaintiff, or some party legally entitled to receive it. It is no defense, that he paid the money to some creditor of the plaintiff; and it matters not therefore whether McDonald had a legal claim against the county for the money by him retained. When a private party, who has been represented in a litigation by an attorney whom he had employed, discharges such attorney from further employment in that litigation, he is no longer bound by the acts of such attorney; and if knowledge of this discharge is brought to the clerk, the latter cannot thereafter relieve himself from liability to the party by payment to the attorney. Employment of an attorney, does not constitute a permanent agency, but is as a rule terminated at the will of the employer; and the authority of the attorney ceases immediately upon the termination of the employment. Now, the relation of attorney and client, between the county attorney and the county, subsists only by virtue of the occupancy of the office, and terminates with the end of the official term. So long as he holds the office of county attorney, he is authorized to represent the county. This authority comes with his office, and goes when his official term expires. Whenever the people elect a successor, it is tantamount to a revocation of authority. So when McDonald’s term of office expired, and Moser succeeded him therein, his authority to represent the county ended. Payment to him thereafter, discharged no liability to the county. That his term of office had expired, the clerk as a matter of fact knew, even if he was not charged with notice thereof. The testimony discloses no private employment; in fact, it shows there was none. He had no authority to receive this money, and the clerk by paying it to him in no manner discharged his liability to the county. We see no error, and the judgment must be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This was an action on a certain title-bond, executed by the defendant Andrew Oswald to the plaintiff, requiring the defendants to convey to the plaintiff certain real estate upon certain conditions. The bond was in the usual and ordinary form in which such instruments are usually executed. The plaintiff alleged in his petition that all the conditions of such bond had been fulfilled, and prayed that the defendants be compelled to convey to the plaintiff said real estate, or, that if they had disabled themselves from so doing, that they be compelled to pay to the plaintiff the value thereof in money, in lieu of such conveyance. Pauline Oswald, one of the defendants, is the wife of Andrew Oswald, the other defendant. The defendants demurred to the plaintiff’s petition on the ground that it does not'state facts sufficient to constitute a cause of action. The court below sustained the demurrer, and this ruling is the error -complained of.
‘ It would seem from the brief of counsel for defendants, that the only ground upon which they claim that the petition does not state facts sufficient to constitute a cause of action, is, that the petition does not show that any legal or valid consideration for said bond ever moved from the plaintiff to the defendants, or to either of them. The petition gives a copy of the bond, and makes the same a part of the petition; but neither the bond nor the petition shows what the consideration was. Indeed, neither of them states in terms that there was any consideration for the land. There was a stipulation in the bond, that Oswald was to convey said land to the plaintiff when the St. Joseph & Denver City railroad was completed to the town of- Hanover, in Washington county, Kansas, and a depot was erected at or near said town. And the petition states, “ that the plaintiff expended labor by its officers, and money in traveling, to secure the location of the railroad by the way of Hanover in said county, and to secure the erection of a depot or station near said town of Hanover; that plaintiff never paid any money or any other thing to the St. Joseph <fe Denver City Rid. Co. or its officers to influence their action in locating said railroad by the way of Hanover aforesaid, nor did the plaintiff pay or give any money or valuable thing whatever to influence the St. Joseph & Denver City Railroad Company or its officers to influence their action in locating the depot at Hanover aforesaid, nor was any corrupting influence- brought to bear upon the officers of the said railroad company to induce the location of the depot at or near the town of Hanover aforesaid.” These are the only allegations or statements in the petition or bond from which any inference might be drawn as to what the consideration for the bond was. And these do not show it. They simply show that the defendant was to convey said land upon the contingencies of said road being built to Hanover, and of a depot being built at or near that place; that the plaintiff used some means to bring about these contingencies, but that it did not use any illegal or immoral means to bring about that purpose. But still, nothing is disclosed as to what the real consideration for the land was. Now we suppose it will not be claimed, that the contract to convey was void because the conveyance depended upon the contingencies of a railroad and a depot being built. It is not illegal or immoral to build railroads, or depots; nor was it illegal or immoral to build a railroad to Hanover, or to build a depot at or near that place; and no contract to build or cause to be built such a railroad, or such a depot, would be illegal, immoral, or wrong in the slightest particular, unless the illegality, the immorality, or the wrong consisted of something aside from the mere building of such depot, or such railroad. And the mere contingency or condition upon which such conveyance was to be executed would not render the bond void. No contract made in good faith, and for a sufficient considera tion, will be void merely because the performance of its stipulations may depend upon some condition or contingency where it does not require the commission of some illegal, immoral, indecent, or unjust act to bring about such contingency, or condition.
But, returning to the main question in the case, it was not necessary for the plaintiff to allege or show any consideration for the execution of said bond. Townsly v. Olds, 6 Iowa, 526, 528; Caples v. Brandham, 20 Mo. 244, 248; Bush v. Stevens, 24 Wendell, 256; McCarty v. Beach, 10 Cal. 461; Wills v. Kempt, 17 Cal. 98. The bond itself, without showing any consideration upon its face, imports in legal contemplation a sufficient consideration. (Gen. Stat. 183, sec. 7.) That is, the law always presumes, in the absence of any thing to the contrary, that a bond apparently executed in good faith was executed in consequence of a sufficient consideration. This was always so at common law with reference to sealed instruments, and it is always so now under our statutes, with reference to all written contracts. Now as the law implies or presumes a consideration for said bond, it was not necessary to allege or set forth any consideration therefor in the plaintiff’s petition. Presumptions of law are never required to be set forth in the pleadings. (Gen. Stat. 653, 654, § 130.) If there was in fact no sufficient consideration for the execution of said bond, the defendants should have set forth the want of consideration in their answer. They cannot raise the question by demurrer, where the petition does not show upon its face, and affirmatively, that there was no such want of consideration. From anything appearing in the petition in this case, the plaintiff may have paid the defendants in money the full value of the property which the defendants agreed to convey. Upon the face of the title-bond, the law presumes that there was a sufficient consideration for defendants’ agreement. And generally men do not agree to do a thing without a sufficient consideration therefor.
The judgment of the court below will be reversed, and cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was commenced by Cook against the plaintiff in error before a justice of peace, and thence appealed to the district court, where the trial resulted in a judgment against the company, and thereupon the case was brought here. The case was tried in both the justice’s court and the district court, on the following bill of particulars :
The Leavenworth, Lawrence & Galveston Railroad Company, To Robert Cook, Dr.:
To $72.00 damages, resulting from the burning up and total destruction of 18 tons of hay in the county of Allen, state of Kansas, on or about the 18th of November 1873, by and on account of the agent and servants of the said Leavenworth, Lawrence & Galveston Railroad Company, while in the ordinary and usual performance of their duties as such agents or servants, carelessly and negligently setting fire to the prairie in said county of Allen, on or about said date, by which said fire in its spread and course said hay was burned and consumed, the same being reasonably worth at the time, the sum of $4.00 per ton, $72.00.
The jury returned a general verdict, in favor of the plaintiff below, and against the defendant for $72 damages, and also, in response to the following questions submitted to them, made the following answers, to-wit:
“l.-Was the fire that injured plaintiff’s property caused by the defendant? Yes.
“2.-Was the fire caused by sparks from the engine? No.
“3.-Was it caused by coals from the ash-pan of the engine? No.
“4.-Was it-caused by fire from stoves on said defendant’s train? Stoves or furnaces.
“5.-If fire was caused by fire taken and thrown from stoves on train, who was it thrown by? By employés of said road.
“6.-Was the fire caused by employés maliciously? We cannot answer.” * * *
“And thereupon the defendant moved the court to require the jury to make certain answers to the 4th and 6th questions, and thereupon the jury retired and after consideration returned to the 4th question the following answer: ‘ From the evidence we cannot say;’ and did not change their answer to the 6th question, and thereupon the defendant moved the court to require the jury, to answer said 4th and 6th questions certainly and specifically, which the court refused to do, to which refusal the defendant excepted.
“ And thereupon on the same day came on for hearing the defendant’s motion for a new trial herein, which is as follows:
“(Court, and tille.) ‘And now comes the defendant and moves the court for a new trial herein, for the following reasons:
“‘1st. The court erred in not requiring the jury to render certain and specific answers to each of the 4th and 6th questions submitted to the jury.
“‘2d.,The said verdict of the jury is not sustained by the evidence, and is contrary to the evidence.
“‘3d. The special findings of fact by the jury are contrary to the evidence.
“‘4th. The general verdict of the jury is not consistent with the special findings of the jury.’
“And thereupon both parties expressing a desire to have the questions at issue passed upon by the supreme court, the court made the following order:
“ And now this cause came on for hearing on the defendant’s motion for a new trial herein, and the court doth pro forma overrule said motion, inasmuch as the parties desire the opinion of the supreme court on the issues involved. To which ruling and decision, the defendant excepted.’ The court then rendered judgment in favor of the plaintiff and against the defendant for $72, and costs.”
The defendant now seeks to have that judgment reversed; and one of the first questions raised is, that the verdict of the jury is not sustained by sufficient evidence. All the evidence introduced on the trial in the court below has been brought to this court, but we shall give only such portions thereof as we may find necessary in the discussion of the different questions of law involved in the case. It will be noticed, that the court below in this case does not approve the verdict and findings of the jury, as is usually done by trial courts in similar cases when they overrule a motion to set aside the verdict. But in this case the court merely overrules the motion to set aside the verdict and findings pro forma, and consigns the whole question to the supreme court, unembarrassed by any approval or disapproval of the verdict on the part of the district court. We are therefore in this case perfectly at liberty to order to be done what we think the district court should have done. Now in this case we do not think that the verdict is sustained by sufficient evidence; and acting as a district court should do in such a case, we must order that the verdict be set aside, and that a new trial be granted. We think that the evidence shows that the fire was caused by fire escaping from one of the defendant’s engines, but we do not think that the evidence shows that the defendant, or any one of its agents or servants, was guilty of any negligence. The fire in this case seems to have, been a purely accidental fire; and this case seems to have come within the decisions rendered in the cases of the K. P. Rly. Co. v. Butts, 7 Kas. 308, and the M. K. & T. Rly. Co. v. Davidson, 14 Kas. 349; and therefore the railroad company in this case is not liable. We have said that we think the evidence shows that the defendant’s engine caused the fire. This is not the verdict of the jury however. The jury say otherwise. In answer to the second question, which was, “Was the fire caused by sparks from the engine,” the jury answer, “No.” In answer to the third question, which was, “Was it caused by coals from the ash-pan of the engine,” the jury also answer “No.” But the evidence tends to show strongly that the fire was caused by the defendant’s train as it passed, and there was not a particle of evidence tending to show that there was any fire on or about the train except in the engine. The theory of the-plaintiff below seems to be, that the fire was caused by fire taken by some one of the company’s employés from a stove or furnace, and- thrown out upon the dry grass. But there was not a particle of evidence in the case from which such a theory could logically be drawn. And the entire evidence was against any such theory. Every one of the company’s employés testifies that he did not throw out any fire at that place, and there was no proof that any one of them did so. Indeed, there was no proof that there was any furnace on the train except the one connected with the engine; and the only proof that there was any stove on this particular train, was the testimony of the witness Thorp, who merely testified on this subject that, “As baggage-master I [he] had charge of the stove in the baggage car.” And there was no proof that there was any fire in even this stove. Indeed, as we have before stated, there was no proof that there was any fire about the train except that in the engine.
There was a pile of cinders and ashes afterward found in a ditch at or near where the fire started. This pile of cinders and ashes indicated that there had been from a quart to a half-gallon of coals and cinders thrown there. The ashes, coals and cinders do not seem to have been scattered, but were all together; and the pile made such a hot fire that the ground beneath it was burned red like brick dust for from one to two inches deep. This pile of cinders was found from six to eight feet east of the east end of the cross-ties. At the time that this fire occurred, the train was going north at the rate of about twenty miles an hour, and “at that time a very extraordinary and high wind was blowing from the northwest” against the train. Now is it possible that said pile of cinders could have been thrown from that train as it was moving and under such circumstances ? Two of the' witnesses say not. It must be remembered that the train did not.stop at that place, but passed on north. The theory of the plaintiff below, that the fire was caused by fire thrown from stoves, or furnaces, by the defendant’s employés, is not sustained by sufficient evidence, and the special findings of the jury negative any other supposable theory which might be advanced, and which would make the defendant liable.
The judgment of the court below must be reversed, and cause remanded for a new trial.
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The opinion of the court was delivered by
Brewer, J.:
This was an’ action of ejectment. The answer was, first, a general denial, and then certain equitable defenses. The second defense was, substantially, that in August 1871, Smith and wife sold the lands in question to one Noah M. Blankenship, and received of him the purchase price thereof, consisting of other lands and some personal property, (describing the same,) all of which said Blankenship conveyed to said Smith; and after said Smith and wife had sold said lands to Blankenship, and while they (the Smiths) were still in possession thereof, defendants, Wicks and Mays, bought said lands of Blankenship, and paid him the purchase price, and said Smith and wife, knowing of and acquiescing in the purchase of said real estate by said Wicks and Mays, voluntarily, and of their own accord, with the intention of carrying out both their own sale to Blankenship and Blankenship’s sale to Wicks and Mays, delivered the possession of said lands to Wicks and Mays, which they still hold. The third defense supplemented the facts stated in the second, with an allegation that after plaintiffs, Smith and wife, had made their sale to Blankenship, and while defendants were negotiating with Blankenship, one of them, the defendant Wicks, went to plaintiffs to ascertain whether Blankenship had any title or right to sell, giving the reason for the inquiry, and was told by plaintiffs that they had sold to Blankenship, and that if defendants purchased from him it would be all right, and that said defendants relied upon these statements, etc. The fourth defense added still further allegations of defendants’ equitable title, but it is unnecessary to notice them.
Upon the trial plaintiffs proved a chain of title from the government, and rested. Then, as the record recites, the defendants put Solomon Smith, one of the plaintiffs below, on the stand as a witness, and after some preliminary questions, asked the following question: “State whether or not, you ever made any agreement with Noah M. Blankenship for the sale of the lands now in controversy ? ” To this question the plaintiffs below objected, on the grounds that the same is irrelevant, incompetent, and not the best evidence under the statutes of frauds and perjuries. Upon this question there was no ruling of the court, or exception, until after the offer of proof. The defendants below then made the following offer of testimony:
“ The defendants now offer to show and prove by Solomon Smith, the witness now on the stand, that sometime in August 1871, the plaintiffs, Solomon Smith, and Julia Smith, his then wife, by a verbal agreement with Noah M. Blankenship, sold the lands in controversy to said Blankenship; that said agreement was as follows: Noah M. Blankenship was to give Solomon Smith a warranty deed to 286f acres of land in Pulaski county, Kentucky, (describing it as the 286| acres of land mentioned in defendants’ second defense is described,) and said Blankenship was also to give said Solomon Smith a quitclaim deed to 200 acres of land in Pulaski county, Kentucky, (describing it as the 200 acres of land is described in defendants’ second defense,) and said Blankenship was also to assign to said Solomon Smith a judgment in the circuit court of Pulaski county, Kentucky, (describing it as the judgment in the defendants’ second defense is described,) and that was all that said Blankenship was to give said, plaintiff for said land in controversy; and that in consideration of said Blankenship’s performing said several acts on his part, the said plaintiffs orally agreed to execute to said Blankenship a warranty deed to the land in controversy. That after the said agreement between the said plaintiffs and said Blankenship was made, and while the plaintiffs were still in possession of the said lands in controversy, said Solomon Smith was informed by defendants, W. M. Wicks and Harrison Mays, that they had bought the land in controversy of said Blankenship, and that the said plaintiffs, with the intention of carrying out their said agreement with Blankenship, and the agreement they had been informed had been made between said Blankenship and the defendants for the sale of said lands, moved off the said lands in controversy, and delivered up to said defendants the key to the house on the said lands,- the house in which, up to that time, they had been living, for the purpose of said defendants taking possession of said lands.”
. The court thereupon sustained the objection and ruled out the testimony. Exceptions were duly taken; and the correctness of this ruling is the question now presented for our consideration. It may be remarked that all the matters alleged in the second, third, and fourth defenses, could have been given in evidence under the mere denial of the first defense. For the statute has provided, that in these actions it is sufficient for the defendant to deny generally the title alleged in the petition. Gen. Stat. 748, §596; Stout v. Hyatt, 13 Kas. 233. It is also clear, that the facts stated in the second, third, and fourth defenses, if true, constituted a perfect defense to this action, and established a complete equitable title in the defendants, and that too although the allegations therein were specifically of a parol agreement for the sale of the property. There was a parol contract, receipt of price, and delivery of possession, besides matters of estoppel. Edwards v. Fry, 9 Kas. 417. And while these three defenses were unnecessary, they were notice to the opposite party, and the court, of• at least one line of defense, and the scope of a part of the testimony. Again, there was no question as to this testimony being in the line of the defense set out fully in the answer — no intimation on the part of the court that it de sired to have the relevancy of the testimony disclosed, or query as to the other testimony to be offered. The 0ffer was entirely a voluntary one on the part of the defendants, made immediately upon the objection to the question. And again, the offer did not purport to be of all the testimony the defendants had, but simply of the matters they proposed to prove by the witness then on the stand. Though the facts stated were all that could be proved by this witness, non constat that other witnesses were not present to prove all the matters in the answer. On the other hand it may be conceded, that the matters stated in the proffer of proof were not of themselves sufficient to create an equitable title. They disclose simply an executory contract, with no performance on the part of either party, or at least with none on the part of the vendee. Now under these circumstances was there error in the ruling of the court? We think there was. There can be no question of the proposition, that where testimony apparently irrelevant is offered, the court may properly reject it unless its relevancy is disclosed by a proffer of other and further testimony. The rule is well stated in the case of Abney v. Kingsland, 10 Ala. 355, where the court says, “Where evidence is pertinent, but insufficient, the court should not assume that the party has no further proof to adduce, and reject it; but if it is prima facie irrelevant, it is incumbent upon the party offering it to show how it may become relevant by connecting it with other facts, and if this is not done it should not be received.” See also Baker v. Lessee of Swan, 32 Md. 355; Piper v. White, 56 Penn. St. 90; Howard v. Coshow, 33 Mo. 118; Depuy v. Williams 26 Cal. 315. Now the testimony offered, was prima facie relevant and pertinent. It was evidence of a fact specifically alleged, and which with the other facts alleged constituted a perfect defense. True, the answer did not in terms allege whether the contract was in writing, or parol; but the manner in which it was stated, in connection with other facts, was clear intimation that a parol contract was all that was intended, for if it were a written contract the other facts were unnecessary, and secondly, it was immaterial whether the contract were one way, or the other, for either,’ taken' in connection with the other facts alleged, was sufficient. It appears therefore, that, under an answer alleging a series of facts which taken together constitute a full defense, a question is asked as to the existence of one of those facts, and that then, without any inquiry by the court or the opposite party as to the extent of the further proof, and with only a statement by the defendant that he proposed to prove certain facts by the witness on the stand, without intimation as to what other witnesses or further testimony he had, an objection is sustained to the question. This we think was error.
But say counsel, a pleading is not presumed to be true, except when challenged by demurrer; and although the allegations of the answer were sufficient, the court was not to asssume them to be true, and base its rulings accordingly, but was justified in basing its rulings solely upon the oral statement of counsel. We are aware of the fact that since verification of pleadings has been done away with, there has been a great laxity of statement in them. Many counsel seem to think it entirely immaterial how much of unquestioned fiction they incorporate into their pleadings, especially their answers. But it is still true, that the issues presented to the court for hearing and trial arise out of the matters set forth in the pleadings, and still true that the pleadings are professional statements by counsel of the claims of their clients, and the matters they expect to prove. The oral statement of counsel in the presence of the court, as to what he expects to prove, is not a whit more sacred than his written statement in the pleading. True, he may often be mistaken in either; he may be misled or misinformed by his client, and therefore does not guarantee the truth of either. But still, in both, and in one as much as the other, he is presumed to be acting in good faith, and to state only those matters of which there is a reasonable expectation of proof. In this respect we are constrained to think there is a great growing evil. There is a disposition to look upon pleading as af fording a legitimate field for the exercise of coun- , _ . . sel s imagination, and to regard the signature or counsel thereto as nothing more than a means of giving the party a standing in court; while in fact the pleadings are, or should be, the exact statements of the facts the parties expect to prove; and the signatures of counsel, their professional statement that they believe those facts to be true. If all counsel would govern themselves by this rule, there would be less litigation, greater dispatch of business, a higher standard of professional character, and less occasion for severe reflections upon law and lawyers. We do not mean to decide that a court may not, if it has any reason to doubt the bona jides of any pleading, interrogate counsel as to the facts he expects to prove, and rely upon the counsel’s answer as a full statement of all the facts, and rule upon the admissibility of evidence accordingly. That question is not before us. Nothing of that kind took place. The court asked no question. Counsel did not pretend to disclose all his evidence. We may remark in passing however, in reference to such a case, that there should be no misunderstanding between court and counsel as to the purpose and scope of the interrogatory, that counsel may be careful to state all the facts he expects to prove; for it would be unjust to have the rights of a litigant cut off by an omission of counsel, in the hurry and excitement of a trial, to gather into his statement all the facts of his client’s case; and it must be remembered, that the same rule must apply to all cases, whether they contain but a single fact, or a long series of facts, some of them, it may be, trivial and minute, yet, like the links of a chain, absolutely essential to the case.
Without pursuing this digression any further, and returning to the case before us, it seems to us that the ruling of the court cannot be sustained; that the testimony offered was relevant and pertinent, and should have been received. For this error the judgment must be reversed, and the case remanded for a new trial.
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The opinion of the court was delivered by
Brewer, J.:
This was an action upon a promissory note, of which the following is a copy:
$250.00. Topeica, Kansas, June 24th, 1874.
Thirty-nine days after date, we promise to pay to the order of John Seaton, at the Topeka Bank and Savings Institution, Topeka, Kansas, two hundred and fifty dollars with interest at twelve per cent, per annum after due until paid. Also, costs of collecting, including reasonable attorney-fees, if suit be instituted on this note. Value received.
Topeka Eolling-Mill Company,
By B. D. Coldren, Prest.
And the first question presented is, whether this is a negotiable note. And the claim is, that because-of the stipulation for payment of costs of collection, and attorney-fees, the amount due on the paper is uncertain, while both the common law and the statute define negotiable paper as drawn for a “sum or sums of money certain.” Story on prom. Notes, § 1; Gen. Stat., §1, p. 114. This claim cannot be sustained. The amount due at the maturity of the paper, is certain; and the only uncertainty is in the amount which shall be collectible in case the maker defaults at the maturity of the paper in his promise to pay, and the holder is driven to the necessity of instituting a suit for collection, and then only as to the expenses of such collection. In the case of Sperry v. Harr, 32 Iowa, 184, the stipulation in the note was: “If not paid when due, and suit is brought thereon, I hereby agree to pay collection and attorney-fees therefor;” and the note was held to be negotiable. The court says in the opinion: “ The agreement for the payment of attorney-fees in no sense increased the amount of money which was payable when the note fell due, and we are unable to see that it rendered that amount uncertain in the least degree. It simply imposed an additional liability in case suit should be brought; and such liability did not become absolute until an action was instituted. This agreement relates rather to the remedy upon the note, if a legal remedy be pursued to enforce its collection, than to the sum which the maker is bound to pay. It is not different in character from a cognovit, which when attached to promissory notes does not destroy their negotiability.” The same proposition is affirmed in Garr v. Louisville Bank Co., 11 Bush, (Ky.) 180, in which the court declares, that “the reason for the rule, that the amount to be paid must be fixed and certain, is, that the paper is to become a substitute for money ; and this it cannot be, unless it can be ascertained from it exactly how much money it represents. As long therefore as it remains a substitute for money, the amount which it entitles the holder to demand must be fixed and certain; but when it is past due, it ceases to have that peculiar quality denominated negotiability, or to perform the office of money; and hence, anything which only renders its amount uncertain after it has ceased to be a substitute for money, but which in nowise affected it until after it had performed its office, cannot prevent its becoming negotiable paper.” Dietrich v. Baylie, 23 La. An. 767; Stoneman v. Pyle, 35 Ind. 103. That it is no longer an open question in the latter state, is evident from the cases of Wyant v. Pottorf, 37 Ind. 512, and Walker v. Woolen, vol. 4 Cent. Law J. 248. See also Dinsmore v. Duncan, 57 N. Y. 573, and Zimmerman v. Anderson, 67 Penn. St. 421—in which last case a stipulation waiving appraisement, stay of execution, etc., was held not to affect the negotiability of the paper. Bradley v. Lill, 4 Bissell, 473, in which the promise was to pay a certain amount with exchange, and the amount of the exchange not stated, and still it was held to be negotiable. And on same point see Smith v. Kendall, 9 Mich. 241; Johnson v. Frisbie, 15 Mich. 285; Leggett v. Jones, 10 Wis. 34; Gutacap v. Woolwise, 2 M’Lean, 581. (Contra, First National Bank v. Gay, 63 Mo. 33.) It seems to us therefore a just conclusion, that paper otherwise negotiable is not rendered non-negotiable by a stipulation for the payment of costs of collection, including attorney-fees, in case suit is brought thereon.
A second proposition of plaintiff in error is, that if the note be considered negotiable, notice of nonpayment was not given within a reasonable time, so as to charge the indorser. The evidence upon this point showed, that the protest was made August 5th, and that the said John Seaton did not receive notice thereof until the 10th; that said John Seaton resided in Atchison, Kansas, within the knowledge of all the parties except the notary at Topeka making protest, and was in business there, and attended the post-office two or three times every day; that Atchison was and is the terminus of the Atchison, Topeka & Santa Fé railroad, a daily mail-route, and is also the terminus of the Missouri Pacific (or Atlantic & Pacific) railroad, a daily mail-route; that Topeka is situated on said Atchison, Topeka & Santa Fé railroad, fifty miles from Atchison; that the notice to said John Seaton was transmitted in the same envelope with ^he certificate of protest to the plaintiffs, at Fort Scott, where they resided, and said notice was sent by the plaintiffs to the said John Seaton, and that it took two days for a letter to go by mail from Topeka to Fort Scott, and two days from Fort Scott to Atchison, and that said note was placed in a Topeka bank, at Topeka, for collection and protest if not paid when due, and was in said bank when so due, and after protest was returned to plaintiffs at Fort Scott. No question is made upon the protest, providing the note was negotiable.
Upon this we remark, that it rests upon the party seeking to charge an indorser to prove a legal notice. No presumptions arise in his favor. It is a question of fact, and the onus probandi is upon him. But like any other question of fact, it is to be settled upon the testimony as it is given, and need not be proved beyond the possibility of mistake. A reasonable construction must be given to the testimony, and reasonable inferences may be drawn from it. And if from this it appears that legal notice was given, it will be sufficient, although it at the same time appears that further testimony more full, explicit, and definite might possibly show an unwarrantable delay on the part of some one of the various parties. We are not to presume facts that are not proven, and we may rest upon the testimony given, and any reasonable inferences to be drawn from it. We remark again, that where the holder and the party to whom notice is to be given reside at different places, it is generally sufficient if notice is sent by the mail of the day next succeeding the day of dishonor. Williams v. Smith, 2 B. & Ald. 501; Bray v. Haduen, 5 Maule & Selwyn, 68; Bank of Alexandria v. Swan, 9 Peters, 33. It is sometimes said that it must go by the next practicable mail; and on the other hand, where the mail of the next succeeding day starts at an unseasonable hour, it will be sufficient if it is deposited in the post-office at any time on that day, so as to be ready for the mail of the succeeding day. Our statute says, “within a reasonable time.” (Gen. Stat. p. 115, §7.) What is “a reasonable time,” is generally a question of law for the courts. Byles on Bills, 222, and cases in note; 2 Greenl. Evidence, §186. We are not in this case advised as to the hour of the departure of the mail from Topeka for Fort Scott, or from Fort Scott for Atchison; and so no question of the seasonableness or unseasonableness of such hour is before us. We can then only fall back upon the general rule, that the notice must be deposited in the post-office in time for the mail of the’ next succeeding day. In other words, the protest having been on the 5th, the notice must have left Topeka in the mail of the 6th, or at least been deposited in the post-office in time for such mail. Again, the holder of protested paper is not obliged to give notice to prior parties. He may simply give notice to ^.g jmme(j;a^e predecessor on the paper, and then such predecessor has the same time in which to notify his predecessor, and so on. , So that where there are many parties to dishonored paper, the first indorser may not receive notice of the' dishonor for weeks, or months, thereafter, and that too although all the parties reside in the same vicinity. In the case before us, it is entirely immaterial whether the notary did or did not know of the residence of John Seaton; or whether said Seaton resided nearer to Topeka than Fort Scott, the residence of plaintiff’s. Eagle Bank v. Hathaway, 5 Metcalf, 212; Triplett v. Hunt, 3 Dana, 128; Farmer v. Rand, 4 Shep. 453; 3 Kent’s Comm. 106, and note; 2 Greenl. on Ev., § 187; 1 Parsons on Notes and Bills, 513. And again, a banker or agent to whom the paper has been transmitted for the purpose of obtaining acceptance or payment, is, so far as the question of notice is concerned, to be considered as though he were the real holder, and his principal a prior indorser. He may notify only his principal, and such principal has the same amount of time in which to give notice to prior parties. 1 Am. Lead. Cases, side page 394; 2 Greenl. Ev., § 187a; Byles on Bills, 224.
Now applying these principles to the case, and it was proper for the notary at Topeka to forward notices to plaintiffs at Fort Scott, without mailing any directly to Seaton, at Atchison, and whether he did or did not know of Seaton’s place of residence. Notice leaving Topeka by the mail of the 6th, would reach Fort Scott on the 7th; leaving Fort Scott on the 8th, would reach Atchison on the 9th. It was received by Seaton on the 10th. But the 9th was Sunday, so that he received it on the very day that he should have received it, going by the first mail, and in the usual time. It is true, that the testimony fails to disclose the exact hours at which the notice was mailed at Topeka, or at Fort Scott; or of the departure of the mails from those places; or of.the arrival of the mails at Fort Scott, or Atchison; or the receipt of the notice by plaintiffs, or Seaton. And if all these facts were disclosed, it might possibly appear that there was either on the part of the notary at Topeka, or of the plaintiffs at Fort Scott, such a delay in forwarding notice as would discharge the indorser. But upon the testimony as it stands, we think there was no error in finding that due diligence had been used in giving notice. 1 Parsons on Notes and Bills, 517, and cases cited in note.
A final proposition of the learned counsel for plaintiff in error is, that “neither the pleadings nor the proofs show any right of the plaintiffs below to recover against Mr. Seaton.” The petition alleges that plaintiffs are the assignees in bankruptcy of the Fort Scott Coal & Mining Company. that they have full power and authority to prpseeute this action, and that John Seaton indorsed and transferred to plaintiffs said note, (giving copy of indorsement,) and that they are now the holders and owners thereof. No denial is made of these allegations. It is said by counsel, that it does not appear that Seaton was ever indebted to the coal company, and that assignees in bankruptcy have no general power or authority to discount notes, etc., in behalf of their estates, and that no special authority from the bankrupt court is alleged. It is unnecessary to inquire whether the petition could not have been attacked by motion, or the authority of plaintiffs challenged by answer. Nothing of the kind was attempted. The defendant was content to go into trial upon the admission (by failure to deny) that plaintiffs were the owners and holders of the paper, that they acquired title to it by indorsement to them, and that they had full authority to prosecute and maintain this action. As they could not be the owners and holders without having authority to receive title by the indorsement, and as it is not questioned but that under some circumstances they could legally take title to such paper, we think the general allegations of the petition, unchallenged by motion, answer, or evidence, are sufficient to sustain the judgment.
Upon the whole record we see no error, and the judgment-will be affirmed.
Valentine, J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Yalentine, J.:
This was an action on three promissory notes. The first of said notes reads as follows:
$200. Westport, Mo., March 20th,-1873.
Sixty days after date, I promise to pay to the order of J. Bernard and William M. Johnson, trustees for Margaret J. Johnson, two hundred dollars, with' interest from date at ten per centum per annum. Yalue received.
M. Greeno.
The other two notes were precisely like this, except that both were payable “twelve months” after date, and the sec ond'was for “$100,” and the third note drew interest “after maturity.” Said J. Bernard and William M. Johnson, trustees of Margaret J. Johnson, were the plaintiffs below, and said Greeno was the defendant below. The plaintiffs’ petitiop contained the usual allegations contained in petitions on like notes, and also contained the following additional allegations and prayer for relief:
“And the plaintiffs further state, that said promissory notes, all and singular, were given by the defendant to the plaintiffs, as and for a part and parcel of the purchase-money, for the following described premises, situate in Johnson county, state of Kansas, on which defendant now resides, to-wit:” [here follows description of the premises f] “upon which said premises the plaintiffs claim a lien for the said several sums of money and interest; and the plaintiffs ask that such lien be declared, and that the said premises be ordered appraised, advertised, and sold according to law, and that the proceeds of such sale be applied, first, to the payment of the costs, and second, that the residue be applied tó the payment of the judgment to be rendered on said promissory notes, and that the plaintiffs have such other and further relief in equity as the proofs may entitle them to in the premises.”
The defendant’s answer contained a general denial of each of the plaintiff’s causes of action, and then stated that, “The defendant admits that said promissory notes, all and singular, were given as and for part of the purchase-money for the real estate mentioned in plaintiff’s petition; and further says, that plaintiffs sold defendant said real estate mentioned in plaintiff’s petition, and gave defendant his warranty deed therefor, agreeing to warrant and defend the same in the peaceable possession of the defendant forever against all persons whatsoever having or claiming any legal title or interest therein” — and then set up a breach of said warranty, and asked judgment in favor of the defendant and against the plaintiffs for $200. The plaintiffs replied, denying “each and every allegation in said answer contained, except that portion of the answer admitting the execution and delivery of said several notes sued upon by the plaintiffs, and also excepting that portion of the answer admitting that the said several notes were given for the purchase-money of the premises described in said petition.”
The defendant’s answer was afterward by leave of the court withdrawn from the case, and the defendant made no further appearance in the case. An entry was then made by the court, that the defendant was in default, and that the several allegations of the petition would be taken as true against him. Of course judgment should then have been rendered in favor of the plaintiffs, and against the defendant, upon the allegations of the petition. There was really nothing in the case to try, after said answer was withdrawn. But nevertheless, the record shows that the case came on for trial, that the plaintiffs waived a jury, that the case was tried by the court, that “the court having heard the evidence on the part of the plaintiffs, and being well advised in the premises, finds for the plaintiffs, and assesses their damages” at $597.13, the amount of said notes, that said amount is purchase-money for said land described in the plaintiffs’ petition, and that the plaintiffs have a lien on said land for the amount of said purchase-money; and the court then renders a personal judgment in favor of the plaintiffs and against the defendant for said amount, and in addition thereto renders a judgment that said land be sold to satisfy said personal judgment.
The defendant now brings the case to this court, and complains of that portion of said judgment which orders that said land should be sold: He claims that the court below erred in finding that the plaintiffs had a lien for the amount of said notes .on the defendant’s land, and also erred in rendering judgment for the sale of said land. These are the only questions in the case. We think the court below did so err. There is no such thing in this state as a vendor’s lien created by mere operation of law, or by mere force of the rules of equity. (Simpson v. Mundee, 3 Kas. 172; Brown v. Simpson, 4 Kas. 76; and as explanatory of these cases, see Stevens v. Chadwick, 10 Kas. 406; Smith v. Rowland, 13 Kas. 245; Seitz v. U. P. Rly. Co., 16 Kas. 133.) Vendors’ liens can be created in this state only by the parties themselves, and can be created only by express stipulation in writing to that effect, or by an agreed reservation of the title in the vendor at the time of the sale as security for the purchase-money. Whether the land in this case was “ occupied as a residence by the family of the owner,” (who is the defendant,) so as to make it his homestead under the homestead-exemption laws, is hardly shown in this case; but that does not make any difference. A lien for purchase-money cannot be created on a homestead in any different manner than it can be created upon any other real estate. The homestead-exemption laws do not make any difference. (Nichols v. Overacker, 16 Kas. 58.) Indeed, there is no homestead-exemption law as against purchase-money. As to purchase-money, the homestead is just like any other real estate, and governed by the same rule as other real estate. A homestead may be sold on an execution for the purchase-money; but the judgment rendered for the purchase-money is no more a lien on the homestead than it is on any of the other real estate belonging to the judgment-debtor. The debt for the purchase-money would not be a lien on any of the real estate of the judgment-debtor until the judgment were rendered, and then the judgment would be a lien on all the real estate of the judgment-debtor, including the homestead; and if there were no personal property, any of such real estate might be sold to satisfy such judgment. And in all cases, where the judgment is not a specific lien upon any particular property of the judgment-debtor, he has an undoubted right to have his personal goods (subject to execution) exhausted first, before any of his real estate' is taken to satisfy the judgment. (Koehler v. Ball, 2 Kas. 161; Gen. Stat. 714, 715, §448.) And after all of his personal goods have been exhausted, he still has the right to take the chances of the officer levying on some other real estate before levying on his homestead. The judgment in this case deprives the judgment-debtor of these rights, and is therefore erroneous.
If the land in this ease is a- homestead, and if the judgment-debtor has a wife, the judgment is erroneous for still another reason. It is an adjudication concerning the homestead where only the husband is a party. (Morris v. Ward, 5 Kas. 239; Dollman v. Harris, 5 Kas. 597.) The judgment in this case should have been an ordinary personal judgment against the defendant for the amount of the notes and costs, authorizing an ordinary execution to be isáued against the property in general of the judgment-debtor subject to execution; and on such an execution, the officer, after exhausting the personal property- of the judgment-debtor subject to execution, might levy on the real estate for which said notes were given, (or any other real estate of the judgment-debtor subject to execution,) whether the real estate for which said notes were given was occupied as a homestead or not.
Perhaps before closing this opinion we should say something with reference to the case of Pratt v. Topeka Bank, 12 Kas. 570. In that case a mortgage was executed by the husband alone to secure a portion of the purchase-money for the homestead of himself and wife, and also to secure certain other money. The mortgage however did not show how much of the money was purchase-money, or how much was' other money. Now it might seem from the opinion in that case, that the court intended to hold that the mortgage was void as to the purchase-money as w'ell as to the other money, but'nevertheless that the judgment to be rendered in the case should be made a specific lien upon the. homestead for the purchase-money. Such was not intended however by the court. The court intended to hold, that the mortgage was void only as to that portion of the money it secured which was not a part of the purchase-money, and that it was valid as to the purchase-money, and therefore and for that reason that the judgment for the purchase-money should be made a specific lien on the homestead. In the opinion of that case (page-572,) where it states that the mortgage was “invalid for the purpose of establishing any lien upon the homestead,’7 it was intended to refer to the mortgage as an entirety, as including both funds in the aggregate as one fund, and had no reference to the purchase-money as a separate and distinct fund.
That portion of the judgment rendered in the present case, which orders a sale of the lands mentioned in such judgment, will be reversed, and the cause will be remanded with the order that said judgment be so modified as to correspond with the views expressed in this opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action commenced by Karr, to recover a judgment on a note of $1,288, executed by the plaintiffs in error, and to foreclose a mortgage alleged to have been given by the same parties to secure the note. Separate answers were filed. J. N. Roach plead usury. Elizabeth Roach alleged in her answer, that the premises were at the date of the mortgage, and for more than ten years had been, the homestead of herself and husband, and occupied as such with their family; that the mortgage mentioned was given without her consent, and that she never consented to the execution of the mortgage; that the pretended certificate of acknowledgment attached to the mortgage was wholly false and fraudulent, and was procured to be made by the connivance of the said James S. Karr, his agents and attorneys, with the intent to defraud and injure her the said Elizabeth Eoach.
As regards the defense interposed by J. N. Eoach, the facts are, that on February 28th 1872, the plaintiffs in error executed their note to Mrs. S. C. Karr, a sister-in-law of James S. Karr, and wife of one J. C. Karr, for $840, due in one year from date, with twelve per cent, interest from date. This note was confessedly usurious. The plaintiffs in error claimed they received on the note only $700. The Karrs alleged they got $735. James S. Karr resides in Canada, but came to Kansas in May 1872, to negotiate some loans. He bought from $4,000 to $5,000 of securities, and among them this note of $840. He agreed with Mrs. S. C. Karr, and Mr. J. C. Karr to take the securities at their face-value, payment and delivery being by the terms of the contract expressly postponed until they should want the money in an enterprise which they were about to commence. Sometime in June or July 1872, and long before the maturity of the $840 note, it, with other securities, was sent to the defendant in error, and he paid for- them in accordance with his contract. When 'the note of $840 was delivered it was duly indorsed by both J. C. Karr and wife. When this note fell due it was surrendered to plaintiffs in error, and they executed in lieu thereof to James S. Karr their note of $1,150, bearing date February 28th 1873, due in one year with twelve per cent, interest from date. The interest due on the note of $840, and an additional $50 loaned the plaintiffs in error by James S. Karr, added to the principal .of the original note, made up (with usury included) the $1,150 note. When this note matured, it was also surrendered, and the note sued on, of $1,288, was given in lieu thereof. Upon the trial, the jury found as a matter of fact, that the defendant in error purchased the note of $840 in May 1872, and that the purchase was made in good faith by James S. Karr, and without notice to him that the note was usurious. Thereon, and upon the general verdict in the case for the defendant in error, the court rendered judgment against said J. N. Roach for the full amount of the note sued on, (less the usury included therein and first embraced in the note of $1,150,) with interest and costs.
It is alleged on the part of said J. N. Roach, that the special findings and judgment were erroneous, for the reason that it appears from undisputed evidence that the purchase of the note of $840 by James S. Karr was not completed till in June or July, the time the note was delivered and paid for; and as J. C. Karr was appointed as the agent of James S. Karr in May 1872, and so continued to be for a long time thereafter, and as J. C. Karr had complete knowledge of all the transactions incident to the execution of the note of $840, and the amount of usury included in the said note, that the knowledge of J. C. Karr as to the usurious character of the note was notice to James S. Karr. An agent for all the purposes of his agency, stands in the place and stead of his principal, and is presumed" to communicate to him every fact coming to such agent’s knowledge, which might in any way affect the interests of his principal; but the knowledge must be of some matter connected with the business in which the agent is engaged for the principal. Notice to an agent, to be notice to the principal, must be as to a matter within the scope of the agent’s employment. In this case, whether the note of $840 was purchased in May 1872, or not till June or July thereafter, is immaterial, as J. C. Karr acted at no time as the agent of James S. Karr to purchase or negotiate for this note. " If he acted for any one other than in his own interest, he acted as the agent of his wife. There is no evidence in any way tending to prove otherwise; and James S. Karr is not chargeable with the knowledge of J. C. Karr as to the said note. James S. Karr left certain securities with-him to look after in the way of collecting them, securing them, and of delivering them to him; but the agency of J. C. Karr did not extend to the purchase of this note. James S. Karr was, upon the evidence, an innocent purchaser of the note of $840, before maturity, for a valuable consideration, and the said note having been duly transferred to him by indorsement, he •could not be charged with any of the equities of J. N. Roach, having had no notice of the same prior to its purchase, and having made the purchase personally, and not through J. C. "Karr or any other agent, he is not affected in this one transaction by the knowledge of J. C. Karr. Under this view of ■the case, it is unnecessary to discuss the various instructions of the court as to J. N. Roach’s defense, as the testimony ¡shows conclusively that the defendant in error was an innocent and bona fide holder of the note o'f $840 before maturity, and all usurious interest added to the subsequent notes was properly excluded by the court and jury.
As to the. defense of Mrs. Roach, a more serious question is presented. But assuming the allegations of the answer ¡sufficient, and that a verification thereof was not necessary to avoid the mortgage upon the facts set forth in the plea, still, •considering all the evidence given and offered on the part of the said Mrs. Roach, we see no sufficient facts to justify a judgment in her favor. As to the execution of the mortgage in suit, Mrs. Roach testified:
“No one read the mortgage to me, and no one explained the nature of the mortgage to me. ' I inquired the nature of the papers before I made my mark to them. I believed it to be ¡some notes my husband was giving. I cannot write, nor read writing. I can read a little in the Testament, by spelling the words. I didn’t touch the pen until I aslred questions. I did sign the papers. I think my husband held the papers on his knee. I never had them in my hand. On the 12th of next March', if I live, I will be sixty-four years •old.”
Mrs. Roach then produced one Ann Harkness, and offered do prove by her, thaty “just prior to the time that defendant Elizabeth Roach made her mark to the mortgage, she inquired of her husband, J. N. Roach, what it was; that he told her it was none of her business; that the paper offered her to sign did not amount to a row of pins, and then told .her to sign it; that he further told her that the paper was only a note.” The court excluded the proposed testimony. At the time of the execution of the mortgage in suit, it (such mortgage) and the note secured thereby were to take up a note of 28th February 1873 of $1,150, bearing twelve per cent, interest from date, executed by the plaintiffs in error, and to obtain a reconveyance of the title to the homestead from Mrs. Sarah A. Karr, to whom the same had been conveyed by a warranty deed in form as security for the original loan of $840 of 29th February 1872, and held by James S. Karr to secure the renewals of that note. There is no claim that James S. Karr had any notice of the conversation between Mr. and Mrs. Eoach, which attended the execution of the mortgage at the time it was accepted by him, and for which he surrendered up the note of $1,150 and had the title to the homestead placed upon the records in the name of J. N. Eoach. The mortgage was complete, except the signature of Mrs. Eoach, when presented to her by her husband to be signed, and she at no time asked for it to be read to her. If she was in any manner mistaken or defrauded as to the contents of the mortgage, such result was the consequence of her own gross negligence. She should have demanded that the instrument be read to her. If she relied on the representations of her husband, it was at her peril alone. The sound policy of the law forbids that a person thus situated, as Mrs. Eoach was, and signing a mortgage under such circumstances as herein presented, should thereafter, as against the mortgagee, innocent of any irregularity in the execution of the instrument, assert that she never consented to the execution thereof. Helm, v. Helm, 11 Kas. 21; Hallenbeck and Wife v. Dewitt, 2 Johns. 404. A different rule would open the door to the grossest frauds, and lead to unfortunate results scarcely to be realized. With the view, that, considering all the testimony presented by Mrs. Eoach, and- all the evidence offered by her and which was excluded by the court, the court properly held the mortgage valid, and of full force for all moneys due thereon, deducting the usurious interest therein embodied, the questions raised as to . the acknowledg ment, and the erroneous instruction as to the consideration of the testimony by the jury, need not be commented upon. These could not affect the validity of the judgment.
The judgment of the court below will be affirmed.
All the Justices, concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
In July 1871 the defendant obtained a perpetual injunction enjoining the plaintiff in error, as treasurer of Neosho county, and his successors in office, from selling certain lands belonging to said defendant in error for the taxes of 1868, or any taxes that might thereafter be assessed by the authority of the state, or any municipal corporation. No exception was taken to this judgment, and no proceedings had to reverse it. More than three years thereafter, the plaintiff in error, his successor in office, and the county commissioners, filed a motion to vacate and set aside such judgment as void either in toto, or as to so much as purported to restrain any sales for taxes for the years subsequent to 1868. This motion was overruled, and this ruling is the error alleged.
An examination of the petition discloses the fact, that in it there is no reference to any other taxes than those of 1868, no claim for relief based upon other than a present use of the property for religious, charitable, educational and benevolent purposes, and no prayer for relief beyond the taxes of 1868, except the general prayer “for such other and further relief in the premises as may be just and proper.” In other words, while the only matter presented in the pleadings was the taxes of 1868, and the only party defendant the then acting treasurer of the county, the court by its decree attempted to bind the county, and all municipal authorities, forever, and as to all subsequent taxes. We think the decree was, as to everything except the taxes of 1868, void, and that it should have been set aside by the court upon the motion filed. The county treasurer is not the general representative of the county. He represents it only so far as the taxes which he is authorized to collect are concerned. He cannot bind it as to future taxes, nor can a decree as against him bind the county as to taxes other than those he is authorized to collect. As well attempt, when a sheriff holding an execution is sought, by injunction brought by the defendant in the execution, to be restrained in making a sale thereunder, and is the only party defendant, to add an injunction restraining the plaintiff in the action from ever thereafter bringing suit against the defendant, or attempting to collect any other judgment against the defendant. Such a decree would be void as to anything except the present execution. The sheriff is not the general representative of the plaintiff in the execution. Neither is the county treasurer the general representative of the county. A decree against him binds only the taxes he is authorized to collect, and cannot bind the county as to all future*claims it may have for taxes. The judgment therefore, so far as it attempted to bind the county as to future taxes, was void, and “a void judgment may be vacated at any time on motion of a party, or any person affected thereby.” Gen. Stat. p. 744, § 575.
The ruling of the district court will be reversed, and the case remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant in error recovered a judgment in the district court of Harvey county, for one dollar and fifty cents, to reverse which this proceeding in error has been brought. "We think that for several reasons it must be affirmed. One only will be noticed. While the testimony is preserved in the record, the pleadings are not. They are neither copied in full, nor referred to, nor their substance given, nor any statement of the issues raised by them, or the admissions made in them. While the case was tried by a jury, no instructions were preserved, so that we can only infer the nature of the issues from the character and drift of the evidence. The complaint of counsel is, that the verdict was against the evidence, in this, that it showed that the cellar wall (for the building of which the action was in part brought,) was not completed according to contract. Now the pleadings may have admitted that the contract was fully completed; or, that the wall was accepted as completed, notwithstanding the defect; or, that the principal payments made were to be applied on the cellar wall, leaving the other matters about which there was no dispute unpaid for, in whole or in part. And the instructions may have properly directed the attention of the jury to these very matters of admission, and so avoided all inquiry upon the question presented by counsel. How then can we say that there was error in the proceedings ? Indeed, it may be laid down as a general proposition, that where the ground of complaint is, that the verdict is against the evidence, the record must disclose not only what the evidence is, but also what the issues are; for no evidence is material which does not bear upon the issues, and none is to be regarded which contradicts the admitted facts.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Hobton, C. J.:
The plaintiff seeks in this proceeding to reverse the order of the court below discharging an attachment sued out at his instance against the property of the defendant. The only ground of attachment relied on is, “ that the defendant fraudulently contracted the debt for which the action was brought.” The affidavit for the attachment was sworn to January 15th 1876, by the plaintiff, H. A. Green. The case comes here upon evidence in the way of affidavits and depositions, as no oral testimony was offered or admitted on the hearing of the motion to discharge the attached property. Under these circumstances, if the order of the district court clearly appeared to be against the weight - and preponderance of the evidence, this court would reverse the order for that reason alone; but an examination of the affidavits and depositions convinces us there can be no reasonable doubts as to the correctness of the ruling of the court below. The only evidence necessary to be commented upon is contained in the affidavits and depositions of the plaintiff in error, and the affidavit of the defendant. In the original affidavit for the attachment, Green swore, in the words of the statute, that the defendant fraudulently contracted the debt. Afterward, his deposition was taken at the instance of the defendant, and, on the hearing such deposition was read in support of the motion to discharge the property. Among other things Green testified in his deposition:
“I believe I may have said to Mr. Embry, in Couch’s liquor-store, in February 1876, in the presence of Thomas Duniffe, that this (meaning the case at bar) was only a friendly suit. I then stated what I thought to be true.
“ Quesiion.-If this was a friendly suit, why did you charge him with fraud in your affidavit? Answer .-Because it was represented to me, that if the money was not accounted for, it was naturally fraud. I did not see at that time, why the fraud should be pursued.
What do you mean by the language, £the fraud pursued?’ Ans.-Following it up.
££§.-What fraud do you refer to? Ans.-The whole case at will.
“Q — Fraud by whom? Ans.-The defendant in this case.
££C>--Uo you now claim that Embry at any time attempted to defraud you? Ans.-Yes, not willfully though, but by neglect. I mean by neglecting to take such measures for the preservation of his business, as are usually taken by ordinary business men.
££ Q. — This then is what you mean by the fraud you refer to in your affidavit? Ans.-I never accused Mr. Embry of fraud in any other way. I do not think he would do it. I do not know now who informed me Mr. Embry was going to make a chattel mortgage to one Byron Sherry.
“Q — Have not others besides your attorneys advised you to commence proceedings against Mr. Embry ? Ans. — They had not advised me when I began it, because as I said before, when I began it, it was a friendly suit. A good many have since indirectly advised me to press the suit.”
The affidavit of the defendant denied the charge of having fraudulently contracted any debt to plaintiff; denied that he was indebted to the plaintiff in any sum; admitted having had business transactions with him, and that arrangements had been partially effected for a partnership between them, but that it was brought to an end by plaintiff failing to comply with his part of the contract. The plaintiff filed a subsequent affidavit, of the date of February 12th 1876, which made no explanation of the statements in his deposition taken by defendant, but did state that he was led to place $1,290 to the credit of Embry & Green, under a promise of a partnership; that Embry received the money sued for, viz., $550, from the deposit, on a check drawn by Embry, but signed by him, “Embry & Green.”
In our view, the statements of Green are so conflicting and contradictory as to be undeserving of any consideration-. His testimony was undoubtedly treated by the district court as wholly unreliable, and we must entirely disregard it. A person who so recklessly, if not criminally, trifles with the solemnity of an oath as to vary his evidence upon every different occasion when it is taken, ought not to merit the attention of the court with a claim that he is worthy of belief. When the golden thread of truth is once dropped, it is impossible to tell where it can be taken up again.
An attempt was made in the court below to prove by affidavits that the plaintiff was too much intoxicated to give coherent statements of fact, when his deposition was taken, and that he was also then laboring under fear of personal violence. The affidavits on this point are very indefinite, and do not seem to have been made from the personal knowledge of the parties. But the attempted exculpation of the plaintiff in this way, does not commend his conduct greatly to us, nor add any weight to his credibility at our hands. We are charitable enough to hope that there was some mistake in the evidence as written; but as presented to us, we can give it no value, and the plaintiff no credence.
The order of the court dissolving the attachment and releasing the attached property, will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action on certain promissory notes and a real-estate mortgage, executed by Julia J. Eeynolds and Geo. A. Eeynolds, to E. S. Stevens, and by him transferred to J. J. A. Quaely. In January 1875, Quaely commenced this action against said Julia J. and Geo. A. Eeynolds, on said notes and mortgage. Two of the notes were then past due; the third note had four months yet to run before maturity. On 12th July 1875, Quaely assigned said notes and mortgage to his mother, Catherine Quaely, and four days later, on July 16th, judgment was rendered on said notes and mortgage in favor of said J. J. A. Quaely, and against said defendants. On July 19th, the defendants filed a motion for a new trial. On Sept. 4th, the court still being in session, said motion was heard and sustained. The new trial was granted for the purpose of permitting the defendants to introduce additional evidence in proof of the third defense set forth in their answer. On Nov. 15th 1875, the. death of the plaintiff J. J. A. Quaely was suggested, and the action was revived in the name of Adah B. Quaely, administratrix of the estate of said J. J. A. Quaely deceased. "When J. J. A. Quaely died, is not shown by the record. In December 1875, another trial was had. On this trial the court made the following findings, and rendered the following judgment, to-wit:
The court finds, as conclusions of fact — 1st, That J. J. A. Quaely, deceased, formerly plaintiff in this action, was the owner and holder of the notes and mortgage sued upon herein at the time this action was commenced.
2d, That the judgment heretofore rendered herein, and all rights and benefits accruing therefrom, or to the proceeds of said notes and mortgage, had been on the 12th of July 1875, assigned and transferred to Catherine Quaely, who is •now the owner and holder thereof.
3d, That on the 11th of Nov. 1875, the plaintiff Adah B, Quaely was duly appointed administratrix of the estate, chattels and credits of J. J. A. Quaely, deceased.
4th, That the remaining facts, besides the above, are as found and decided in favor of J. J. A. Quaely on the former trial of this cause.
And the court finds as conclusions of law — 1st, That-the plaintiff, under the amended petition herein, is entitled to recover upon the notes and mortgage declared upon, of and from the defendants; 2d, That such recovery should be for and to the use of Catherine Quaely, now the real owner of the notes and mortgage.
And thereupon, (the plaintiff by her attorneys consenting,) it is by the court considered, ordered, and adjudged, that the plaintiff have and recover of and from said defendants, for the use and benefit of said Catherine Quaely, assignee, $5,458.33, together with the costs of this action taxed at $ — .—. And it is further considered, ordered, and decreed, that unless said judgment, interest, and costs, be paid within twenty days from this date, the sheriff of this county shall proceed to advertise and sell, without appraisement, the mortgaged premises, .and apply the proceeds thereof as hereinafter provided. [The details of how the property shall be advertised and sold, and how the proceeds thereof shall be disposed of are here stated, and then the judgment proceeds as follows:] And execution is awarded for any balance of the judgment remaining unpaid after the sale of the said premises and application of the proceeds, as hereinbefore provided.
The defendants below, who are now plaintiffs in error, claim that this judgment is erroneous and illegal. And first, they claim that the actual plaintiff in this action, Adah B. Quaely, administratrix of the estate of J. J. A. Quaely deceased, has no interest in the subject-matter of the action, and that the real party in interest, Catherine Quaely, is not a party to the suit, and therefore that no such judgment as was rendered in this case, could legally be rendered. They claim, secondly, that a judgment which authorizes a sale of real estate for the satisfaction of a debt, and provides that the proceedings for such sale may be commenced within twenty days, and that the real estate may be sold without appraisement, is not warranted by law. And thirdly, they claim that the court- below also erred in rendering a judgment (as the court below did in this case) upon a note which was not due when this action was commenced.
We sustain the first and second claims of the plaintiffs in error, but express no opinion in regard to the third. Said notes and mortgage did not belong to J. J. A. Quaely at the time of his death. They do not now belong to his estate. They are not assets in the hands of the administratrix, and there is no law authorizing the administratrix to administer upon them. (See executor-and-administrator act, Gen. Stat. 439, §§ 39, 40; p. 440, §§ 46, 47, 48; p. 461, § 152.) It is' probably true, under section 40 of the code, (Gen. Stat. 637,) that, if J. J. A. Quaely had lived, the action ipight have pro ceeded to its final determination in his name, notwithstanding his transfer of interest. But no authority is anywhere given for allowing such an action to proceed in the name of a personal representative of a deceased person. A person while living may take the risks and chances, and suffer the inconveniences and possible losses, of allowing an action to still proceed in his name after he has transferred all interest in the subject-matter thereof; but after his death, his administrator has no such right. The administrator has a right to attend only to the affairs of the estate. The estate is not to pay him for doing anything else, and the estate is not to take any risks for anything else. Nor does the administrator become the guardian for those persons for whom his intestate' was guardian. Indeed, the administrator is not guardian for any person or for anything except for matters connected with the estate. When J. J. A. Quaely died, the action should have been revived and prosecuted in the name of Catherine Quaely, his successor in interest, and not in the name of his personal representative to whom his right did not pass. (Civil code, §§ 40, 425, 430.) There might be cases where it would be proper for both the administrator and the person claiming to be the successor in interest to be made parties, and to allow them to interplead for the purpose of determining which was entitled to the judgment that might be recovered.
In this state all land sold on execution must be appraised, (Gen. Stat. 716, §453,) except where the words, “appraisement waived,” or other equivalent words, are inserted in the contract upon which the judgment is rendered, (Laws of 1872, p. 105.) Where the lands are appraised they are not allowed to be sold for less than two-thirds of their appraised value. But where the appraisement is waived, the debtor is entitled to a stay of execution for six months, and then the property may be sold for what it will bring. In this case the appraisement was waived; and therefore the error of the court below, was not in ordering the property to be sold with out appraisement, but in not granting the stay of execution for six months. The stay actually granted was for only twenty'days.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was a suit brought by William B. Sherrill, defendant in error, against A. Hawkins and one John Campbell, to recover judgment on a note of $1,350, dated January 9th 1874, secured by mortgage on certain real estate in Bourbon county, executed by A. Hawkins and Martha E. Hawkins, and recorded the same day. The plaintiff in error was made a defendant on his motion, and filed his answer and amended answer, as disclosed by the record, setting up a mortgage-lien for $810.96 against Plawkins and his wife, which was allowed him by the court, and is not here for review; also, setting up a note of $1,054.70, dated 31st August 1872, executed by plaintiff in error, Drury J. Fields, and A. Hawkins, and secured by mortgage recorded Sépt. 7th 1872, on a part of the real estate described in Sherrill’s mortgage, viz., sec. 1, township 25, range 25, Bourbon county. The payee of this note, a Mrs. M. C. Giles, received the full amount thereof on Sept. 3d 1874 from one of the makers, the plaintiff in error; and the question and the only-question in the case was, whether such receipt operated as a payment of the note, and a discharge of the mortgaged premises from the lien thereof. The district court found that it was a payment, and that the mortgagerlien was gone, and gave Sherrill’s mortgage priority. The facts in reference to this, as they appear from the testimony, are substantially these: The note was, on the face of it, the joint note of Fields and Hawkins. While Fields’ name appears first, there is nothing to indicate that either was surety. The mortgage security was given alone by Hawkins. The note was given for borrowed money. The money was borrowed for the use of Fields. He first spoke to the payee’s agent about the loan, and told him that Hawkins would not take the money. He (Fields) had no deed for his land, and that was the reason why he did not give the security himself. Hawkins agreed to furnish the security, and let Fields have the money. A check for the money was given to Hawkins, who turned it over to Fields, and the latter obtained the money thereon and used all except the sum of $100, which a few days thereafter he returned to Hawkins. During the summer and fall of 1873 he also returned to him an amount equal to the amount he had retained of the proceeds of the check, and took this receipt:
“Fort Scott, Sept. 1, 1873.
“Received of D. J. Fields ten hundred and fifty-four dollars & seventy cents, ($1054.70,) for which I promise to pay a promissory note indorsed by D. J. Fields and myself, and given in favor of Mrs. M. C. Giles. A. Hawkins.”
Hawkins did not pay said note,' but by payment of interest in advance, and a bonus, obtained an extension of the loan for a year. In September 1874, the note still remaining unpaid, Fields paid it and took an assignment without recourse. Now while both the payee of this note, and her agent, testify that they regarded Hawkins as the principal, and Fields as. only surety, yet we think that in the inception of this loan, and as between Fields and Hawkins, the finding of the court that Fields was the principal was unquestionably cor rect. Suppose, that after having received the proceeds of this loan, Fields had paid the same over to Mrs. Giles, and taken* an assignment of the note and mortgage: can it be claimed for a moment that he could have held them as valid securities against Hawkins, and enforce their collection from him ? Yet if Hawkins was principal, and he merely security, he could. The reverse was actually the case. Hawkins could have paid the note, and claimed the benefit of it as against Fields — for Fields was in fact the party who desired the loan, for whom it was made, and who received the proceeds of the loan. Whatever form then the transaction took, and whatever might be the rights of the payee or others, as between Fields and Hawkins the former was the principal debtor, and his payment of the note canceled it and discharged the mortgage.
What effect had the return of the amount of the note by Fields to Hawkins, and its extension by the latter for another year, upon the subsequent payment by Fields? This is really the difficult part of the case. On the one hand it is claimed that upon the face of the papers each maker was equally and jointly liable as principal, and that prima facie a payment by either would discharge the note and mortgage ; that if we look back of the face of the papers, we find that-Fields was really the principal and Hawkins the surety, and that this relation, once established, must be held to remain ; that the makers of the note, the debtors, cannot by simply passing money backward and forward between themselves, and without any knowledge or assent of the payee, the creditor, keep changing their relation to the debt, so that to-day one shall be the principal and the other the surety, and the next day the reverse. While on the other hand it is said, that the return of the money to Hawkins left him in the possession and enjoyment of the proceeds of the loan; that, by payment of advance interest and a bonus he obtained a year’s continuance of such possession; that Fields had ceased to have any further benefit from the loan, while Hawkins was enjoying the full benefit of it; that as this took place before Sherrill made his loan, he suffered no wrong by the transaction; that the record disclosed the existence of this mortgage, and that it was apparently unsatisfied; and that if Sherrill had made inquiries of the mortgagee he would have been informed that she considered Hawkins as the principal debtor, and that the note was unpaid; and that if he had made like inquiries of Fields, or Hawkins, the exact facts would have been told him, so that it is perfectly fair to presume that if he was content to make his loan upon a second mortgage, he has no right to complain if it is now adjudged to be only a second mortgage, and that it would be unjust to Fields who has twice paid this note to deprive him of any recourse upon the mortgage security. The latter view seems-to us to be the most just and equitable, and not to contravene any settled legal principle. It may be true, as counsel for defendant in error say, that it is very doubtful whether Fields in fact ever returned-any such amount to Hawkins; but we must take it that he did, as the court so found. The matter can be inquired into further on the rehearing.
The judgment of the district court- will therefore be reversed, and the case remanded with instructions to grant a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Hokton, C. J.:
Demurrer to petition. The action was brought by the plaintiff as administrator of the estate of Michael McCarthy, deceased. The petition alleges that the plaintiff is the duly-appointed and qualified administrator of said estate; that the defendant is and was a railroad corporation, organized and existing under and by virtue of the laws of Illinois, and was and is engaged in operating the Chicago & Southwestern Railroad, a road leading from the city of Leavenworth, Kansas, across the Missouri river bridge, thence east through Platte county, Missouri; that the intestate, on June 5th 1873, while in the employ of defendant as a track-repairer on its road, received personal injuries, in the county of Platte, and state of Missouri, through its gross and culpable negligence, of which injuries he died twenty-four hours thereafter; that the intestate at the time of his employment by said defendant, and at the time of his death, was a resident of this state; that the services were to be performed on the road defendant was operating and controlling; that immediately after the injuries complained of were received, the intestate was brought from Platte county, Missouri, to his home in Leavenworth city, in this state, where he died; that the intestate left Margaret McCarthy as his widow, and eight children, (giving the name of each,) and also states that by-reason of the premises the plaintiff claims damages in the sum of $10,000. The defendant demurred, and assigned the following grounds of objection: first, that the court did not have jurisdiction of the subject-matter of the action; second, that the plaintiff did not have legal capacity to sue; third, that the petition did not state facts sufficient to constitute a cause of action in favor of the plaintiff against the defendant. The district court sustained the demurrer; and the plaintiff electing to stand by his petition, final judgment was rendered in favor of defendant. To reverse such judgment, a petition in error has been filed in this court.
The suit is based on section 422 of the civil code, Gen. Stat. 1868, pp. 708, 709; and the first question presented is, whether this provision of our statute has any extra-territorial operation. In other words, does this' statute apply, where the suit is brought in this state for r J 7 0 , , an injury done in another state? This question has been before the courts of various states, upon petitions like the one filed in this case, and almost invariably the courts have held that the statutes of a state have no force beyond the limits of the state of their adoption. Generally, all laws are coextensive, and only coextensive with the political jurisdiction of the law-making power. This identical subject is fully discussed, and decided against the claim of the plaintiff in error, in the following cases: Campbell v. Rogers, 2 Handy, 110; Vanderwerken v.N. Y. & N.H. Rld. Co., 6 Abb. Pr. 239; Beach v. Bay State Steamboat Company, 30 Barb. 433; Whitford v. Panama R. R. Co., 23 N. Y. 465; Nashville & Chattanooga Rld. Co. v. Eakin, Adm’r, 6 Cold. (Tenn.) 582; Needham v. Grand Trunk Rly. Co., 38 Vt. 294; Selma, Rome & Bolton Rld. Co. v. Lacy, 43 Ga. 461; Hover v. Pennsylvania Company, &c., 25 Ohio St. 667.
In the states where the above-cited decisions were rendered, statutes similar to the provisions of section 422 are in force. At common law, this action could not be maintained. In the first place, if the death was caused by a felony, any action for a civil remedy for it would be merged in the criminal proseGU4i°n> or rather, suspended till the conclusion of the criminal action; and as the punishment for a feiony^ causing death, was the death of the offender, and the forfeiture of his property, the suspension of the action really resulted in its defeat. Higgins v. Butcher, Yelv. 89; Marsh v. Stone, 6 B. & C. 551, 557, 564. In the second place, the rule that a personal action dies with the person, which was always regarded as applicable to personal torts, operated to abate any cause of action that might have otherwise belonged to the injured party; and this applied equally to deaths by felony, negligence, or misadventure. No claim then can be maintained, in favor of the action brought, upon any rule of the common law; and it is not necessary, in reaching this conclusion, to hold that the doctrine expressed in Baker v. Bolton, 1 Campb. 493, that “in a civil court, the death of a human being cannot be complained of as an injury,” has authoritative force in this country in those states where there is no statute to recover damages sustained by a husband, parent, master, etc., through the death of a deceased, when the party suing was entitled to the services of such person.
It is contended by the counsel for the plaintiff, however, that confessing the full force of the limitations upon the operation of the laws of the state, so far as any extra-territorial power is concerned, and assuming that, by the common law the cause, of action which accrued to plaintiff’s intestate died with him, yet, the action is maintainable, and the demurrer should have been overruled, as the court will presume, in the absence of allegations in the record to the contrary, that the laws of Missouri in respect to actions of this character are like our own. Admitting the premises, the conclusion does not necessarily follow. Every statute of another state, giving a right of action, cannot be enforced in a spirit of comity in this state, even if such statute is set forth in the petition filed in the court; and a very different principle is involved, between presuming the laws of sister states like our own, to sustain *title to property within this state in litigation, and holding that the laws of other states are similar to ours in enforcing through our courts either the penal or remedial statutes of such other state. In Massachusetts,where the rule of the common law is in force, it has been decided in a case where the intestate was an ‘inhabitant of the state, but injured in New York, (which state has a statute similar to our own,) and the statute law of New York was set forth in the declaration, that the action could not be maintained. Hoar, J., in discussing the right of action, and the New York statute, says: “How can it be regarded as anything else than a statute penalty, which the personal representative of the deceased is to recover by an action which is limited in amount, although that amount may be much less than the extent of the injury sustained by those whose loss is to be estimated in computing it, and which is to be distributed among the parties entitled to receive it, not in proportion to the injuries which they have respectively sustained, but in proportion to the shares to which they would be severally entitled in the distribution of an intestate estate? We do not readily find a satisfactory answer to this question.” Richardson v. N. Y. Central Rld. Co., 98 Mass. 85. In Ohio, it has been decided, that where a person, who was a brakeman on the M. S. & N. I. Rld. Co., was killed in Cook county, Illinois, by the negligence of the railroad company, and where the statute of Illinois, which is like ours, was set out in the petition, and the same was very similar to that of Ohio, that an administrator appointed in Ohio could not maintain in that state an action for damages for the benefit of the widow, or next of kin, of the deceased. Woodard, Adm’x, v. M. S. & N. I. Rld. Co., 30 Ohio St. 121.
We think it is to be assumed on the petition, in the absence of more definite allegations, that the plaintiff was appointed administrator in this state. Many difficulties present themselves in holding that an administrator appointed under the laws of Kansas can undertake and discharge a trust of this character conferred by the laws of Missouri. The plaintiff is not amenable to the courts of Missouri; yet, if this, action is maintainable, the money is to be recovered here, upon the laws of another state, by a person acting in an administrative capacity under the authority of this state, and the fund is then to be distributed by the laws of the sister state. It is doubtful, whether an administrator’s bond would extend to such a case, or whether this action would be a bar to other proceedings in Missouri to recover damages for the injuries resulting in the death of the intestate. In the Ohio case cited, Grholson, J., says: “The jurisdiction of the court under which he (the administrator) acts, does not extend to trusts carried out in pursuance of the laws of other states; for it may well happen, that the next of kin, under the law of Illinois, may not be the same persons, or take in the same proportion, as under the law of Ohio. Certainly, to determine who are the cestuis que trust, the laws of Illinois must be regarded, and it is therefore the intention of the statute of that state, that the tribunal under which the personal representative, i.n whom the right of action is vested, and upon whom the trust is imposed, is acting, should administer the trust and distribute the fund among the proper parties.”
We think this reasoning sound, and applicable to the case at bar. We cannot presume that the laws of Missouri give an administrator of Kansas power to collect moneys under its laws, to administer trusts imposed by its authority, and to distribute funds among the proper parties to whom the same belongs by the. statutes of'that state. If the laws of our state are to be presumed in force in Missouri, then there was no necessity to institute an action so circuitous as this one must be, if maintainable here, in this state, as the administrator could have brought the action in the courts of Missouri. Kansas Pacific Rly. Co. v. Cutter, 16 Kas. 568. As a fact, alium.de, the laws of Kansas and Missouri are very dissimilar, and the plaintiff, even if a Missouri administrator, could not, under the laws of the latter state, maintain any action in that state, as the personal representative of the intestate, on account of the injuries which caused his intestate’s death. In that state, the damages in such actions must be sued for and recovered, first, by the husband or wife of the deceased; or second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased; or third, if such deceased be a minor, and unmarried, then by the father and mother, who may join in the suit, and each shall have an equal interest in the judgment, or, if either of them be dead, then by the survivor. Wag. Mo. Stats. 1872, vol. 1, 519, 520.
We do not pass upon the question, whether an administrator appointed under the laws of another state having similar provisions of law to section 422 of our code, might or might not maintain an action of this character in this state for the purpose of recovering a fund to be distributed under the law of the state from whence he derives his appointment. Such a case is not presented in the record.
It is claimed that, whatever construction this court may give to section 422, that plaintiff’s causé of action is supported by section 420 of the code, (Gen. Stat. 708.) It reads as follows:
“In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to the real or personal estate, or for any deceit or fraud, shall also survive, and the action may be brought, notwithstanding the death of the person entitled or liable to the same.”
The plaintiff has declared on the cause of action given by section 422, and not on that given by section 420. But if sufficient facts were contained in the petition, so that section 420 could be considered, we do not think the position of the plaintiff would be any better to sustain his claim. Section 422 was originally passed on February 8th 1859, entitled “an act authorizing actions to be brought in certain cases;” (Comp. Laws, 1862, p. 80.) Section 420 was section 410 in the code of 1859. But both of these provisions of law took effect on the same day, viz., June 1st 1859. In the revision of 1868, these sections were embodied in the civil code as sections 420 and 422, are a part of the same act, and were adopted at the same time. They must be construed in pari materia. The purpose of section 422 is evidently not only to fix the amount of damages, and limit them to the use of the widow and children, or next of kin, but to take away the right of the administrator to sue for the benefit of the estate generally, where death resulted from the injuries. Sectión 420, as construed with section 422, only causes the actions to survive for injury to the person, when the death does not result from such injury, but does occur from other circumstances. The right of the action under section 422 is exclusive; andan administrator could not maintain an action under section 420 and 422 for the same injury. When death results from wrongful acts, section 422 is intended solely to apply. Read v. Great Eastern Rld. Co., 3 Q. B. 555; Andrews v. Hartford Rld. Co., 34 Conn. 57.
The fact, urged with considerable stress by the counsel of plaintiff, that the intestate lived in Kansas at the time of his employment, and died in this state, is immaterial in the decision of the questions presented. The wrongful acts were all committed in Missouri. This court has already held, that while section 422 gives a cause of action in every case coming within its terms, and happening within the state, the residence of the deceased is not material, and the place of his death unimportant in determining the right of the administrator to sue. Kas. Pacific Rly. Co. v. Cutter, supra.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action on a promissory note. The first question presented in this court is, whether the petition below sufficiently alleged that the note was executed by Abeel, defendant below. With regard to this matter, the petition below alleged as follows: “ On the 26th of May 1873, the defendant, by Charles A. Phillip and John T. Abeel, her attorneys-in-fact, made and delivered to one L. M. Taylor her promissory note of that date, and thereby promised to pay to said L. M. Taylor or order, four months after the date thereof, the sum of two hundred and eighty dollars. * * * A copy of said note, with all the indorsements thereon, is hereto attached, marked exhibit ‘A/ and made a part of this petition,” Exhibit “A,” attached to the petition was a written instrument, dated “Wichita, Kansas, May 26th, 1873,” and commenced as follows: “ For value received, four months after date, I promise to pay,” etc.; and it was signed as follows: “Eliza C. Abeel, by Chas. A. Phillip & John T. Abeel.”
The defendant made no appearance in the court below until after judgment was rendered against her on the allegations of said petition. The judgment was by default. We think the petition sufficiently alleged that the defendant executed said note. But if the defendant had' desired that the plaintiff should ‘state more specifically in his petition, in what manner she gave authority to Charles A. Phillip and J. T. Abeel to execute said note for her, she should have appeared in the case, and have moved the court to require the plaintiff to make a more specific statement concerning such matter. In the absence of any such a motion, the allegations which were actually made in said petition we think are amply sufficient.
The next and only other question is, whether the court below, by including in the judgment as originally rendered, an attorney-fee of fifty dollars, so vitiated the entire judgment, that no part of it could afterward be allowed to stand. The facts upon which this question is raised are as follows: The summons which was served upon the defendant was indorsed as follows: “Suit brought for the recovery of money; amount claimed $280, with interest from the 23d of September 1873, at the rate of twelve per cent, per annum, and an attorney-fee of $-, and costs of suit.” The court rendered judgment originally, not only for the amount of the note and interest, and costs, but also for an attorney-fee of fifty dollars. Afterward the defendant appeared in the case, and moved the court to vacate the entire judgment, upon various grounds. The court overruled the motion, but at the same time so modified the judgment as to make it a judgment only for the amount of the note and interest thereon from October 23d 1873, and for costs, not including the costs of said motion. There can certainly be no valid objection to the judgment as thus modified, even if it was erroneous as originally rendered. And the court below certainly did not commit any error against the defendant below by thus modifying the judgment.
The judgment as thus modified will be affirmed.
All the Justices concurring | [
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The opinion of the court was delivered by
Brewer, J.:
Action on county treasurer’s bond. The.first question arises on these facts: Pleadings were duly filed— petition, answer, and reply. The petition alleged the execution of a bond payable to the county commissioners, setting out the bond in full. This under the law in force at the time, (Comp; Laws 1862, p.428, §104,) was the proper bond. No denial under oath was filed. Therefore the execution of such a bond was admitted. The case however was tried on an agreed statement of facts, and the first fact in the statement showed the execution of a bond payable to the state of Kansas. This agreed statement was signed by the attorneys, and to it was attached an affidavit of the county attorney alleging all the matters prescribed infection 525 of the code, which provides for submitting a controversy without action. And the claim is, that this agreed statement, fully satisfying all the requirements of said section, must be considered as having superseded the pleadings, and as proceeding under said section; and that therefore the only matters to be considered are the facts in the statement. We cannot assent to this view, and for several reasons. There was an action pending. There was no pretense of any dismissal. There was no determination of the issues raised by those pleadings, otherwise than by the judgment herein. The agreed statement does not purport on its face to supersede the pleadings, or to be a matter outside of the action then pending. The agreed statement is of facts embraced in the issues raised by the pleadings. The journal entry of the trial reads, that the parties “submitted their cause to the court for trial and the determination of all the issues, as well of law as of fact, made by the said pleadings on file herein, upon the agreed statement of facts signed by the parties respectively.” A similar recital appears in the entry of the judgment. Now it seems to us a fair deduction, that court and parties alike looked upon this agreed statement as made in the case already pending, and as simply dispensing with further or other evidence in the case, and that it must be so regarded in this court. Of course then, it stands as admitted, that the proper bond was given. Do the further facts show any liability upon this bond ? These are the facts:
At the October term 1868, the State of Kansas obtained adjudgment against one Thomas Casad and his sureties, upon a forfeited recognizance for the sum of $5,000 in the district court of Johnson county, which judgment was never vacated, reversed, set aside, or modified.
On the 23d of June 1869, said J. Henry Blake, as county treasurer, received from the judgment-debtor the sum of $4,900 of Johnson county “scrip,” or written promises to pay $4,900, commonly called “scrip,” at the face thereof, in full payment and satisfaction of said judgment — $100 having been, prior thereto, paid to John T. Burris, county attorney, as his fees on said judgment of $5,000.
Said $4,900 in “scrip,” less the lawful commission of said treasurer, was placed to the credit of the “school fund” of Johnson county, by said treasurer; and afterward the said treasurer (J. Henry Blake) delivered said $4,900 of county “scrip” to one Rev. C. E. Lewis, the county superintendent of schools of Johnson county, who discounted said “scrip” in the market at and for 75 cents on the dollar; that is to say, he sold said “scrip” at 25 cents less than its face.. Johnson county “scrip” then, and at the time said J. Henry Blake received said $4,900 in “scrip” from the judgment-debtor, and at the time said Lewis as superintendent sold same, was selling, generally, in the market at such discount.
Said C. E. Lewis, county superintendent, after the sale of the $4,900 of “scrip” as aforesaid, paid to J. Henry Blake, treasurer, the sum of $3,675, the proceeds of said sale of county “scrip,” which the said treasurer placed to the credit of the common-school fund of Johnson county, and which said sum was duly apportioned among the various school districts in Johnson county by said Lewis, and was paid out by the said treasurer to the proper officers of said school districts upon the written orders of said.superintendent, from time to time.
Said treasurer retained as his commission, on the $4,900 of “scrip” the sum of $147, and placed the residue, being the sum of $4,753 in “scrip,” to the credit of the “school fund,” and disposed of it as hereinbefore stated.
There has been no settlement of the foregoing matters between the plaintiff and defendants, or either of them; and the said J. Henry Blake, defendant herein, waives all statutes of limitations in this case.
Upon these facts we remark, in the first place, that it has been already decided that the county commissioners were proper party plaintiffs in an action like this, although the funds when collected do not belong to the county for general use, but only for distribution to the various school districts. Comm’rs Jackson County v. Craft, 6 Kas. 145. In the second place, the county treasurer is by statute made the proper party to collect the moneys due upon such a judgment of forfeiture, as is disclosed by the agreed statement. Gen. Stat. 873, §332; Gen. Stat. 929, §75. Having authority to collect, if he receive anything other than money in full satisfaction- and discharge of the judgment, he renders himself liable for the amount thereof. If in the case before us he had taken a certain number of wagons in satisfaction and discharge of this judgment, he could not have turned the wagons over to the county, or to the school districts, and thus relieved himself from responsibility. This is not like the case in which a treasurer assumes a personal trust toward the judgment-debtor by receiving property upon a promise to dispose of it and apply the proceeds on the judgment, in which case he perhaps might not be responsible for anything more than the proceeds; nor is it a case in which there was only a partial collection of the judgment. He was under no obligations to receive this scrip in payment of the judgment; and if he did so, and satisfied and discharged it, he must make good the amount thereof. We remark again, that he could not discharge himself from liability by turning the scrip over to the county superintendent. His duty was to pay over school moneys to the school-district treasurers, and he had no authority to intrust either money or scrip to the superintendent. Gen. Stat. 929, §§ 74, 75.
And finally, it was unnecessary to prove a special demand, for the act of receiving the scrip in satisfaction of the judgment, and then delivering it to the county superintendent, was wrongful. If the testimony had disclosed simply that he had received the full amount of the judgment in money, it would doubtless be incumbent on the county to prove that he had failed to pay over this amount to the district treasurers, or to his successor in office. But the condition of his bond was that he should “ faithfully and promptly perform the duties of his said office,” should “ well and truly pay according to law all moneys which shall come to his hands as treasurer,” and should “deliver to his successor in office or to any other person authorized by law to receive the same, all moneys, books, papers and other things appertaining thereto, or belonging to his said office.” Now he had not faithfully performed the duties of his office, for he had received scrip, when he should have received money; he had given this scrip to a person unauthorized to receive scrip or money from him, and in return had received a less amount in money. This was a breach of official duty, and prima fade entailed a loss. If notwithstanding, he claims that he made good this loss, and reimbursed the county, it is for him to make this appear. It may perhaps be proper to add, that as this action was not brought for more than two years after the expiration of the term of office for which this bond was given, and as the constitution provides that a county treasurer shall not hold more than two terms in succession, it is apparent that he had ceased to be county treasurer before the commencement of this action. At any rate, the term for which this bond was given had long since expired.
We see no error in the proceedings, and must affirm the judgment.
All the Justices concurring. | [
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The opinion of the court was delivered by
BbewNk, J.:
This case shows, that on the 29th of September 1865, defendant Guest made his promissory note for $2,800, payable in one year thereafter, with seven per cent, interest, and at the same time executed a mortgage on lots 117 and 119 Connecticut street, Lawrence, to secure its payment; that December 19th 1866, he paid thereon $1,500; that the note and mortgage came to the hands of the plaintiff, as the assignee of W. H. R. Lykins, who owns the same; that this action was commenced November 25th 1873; that in October 1873, Thomas Guest, in answer to proceedings of garnishment brought by Chancellor Living ston, a creditor of Lykins, stated that on March 25th 1868, he was indebted on the note and mortgage in controversy, for the amount thereof, excepting $1,500 paid December 19th 1866, and that Lykins owed him $53; that none of that amount had been paid; that on the 3d of February 1868, the mortgagor, Thomas Guest, conveyed the undivided-half of the mortgaged premises to George Schmucker, and in the conveyance specified that the same was “subject to a mortgage given to R. & E. Hayes for the sum of $1,300, he the said George Schmucker to assume one-half of said amount.” George Schmucker accepted the deed, and afterward conveyed the premises to defendant John G. Schmucker. This latter conveyance was dated July 3d 1869, and contained the following clause, “subject to a mortgage given to one R. & E. Hayes, for the sum of thirteen hundred dollars.” On the 12th of February 1870, defendant Guest conveyed to F. W. McConnell and J. N. McConnell the other undivided-half of said premises, which conveyance contained the following clause: “There is a certain mortgage outstanding on lots 117 and 119 aforesaid, given by Thomas Guest to Richard A. Hayes and Ebenezer B. Hayes, dated about the 29th of September 1865, to be paid by Guest.” The plaintiff below also offered in evidence what purported to be a written agreement dated March 1st 1870, between Guest of the one part, and Schmucker and McConnell of the other. The paper, it was proven, was signed by Schmucker with the firm-name of “Schmucker & McConnell.” It contained what Guest testified was the contract between the parties, and was an agreement that certain stock of the value of $1,849.42, should be turned over to Schmucker & McConnell, and that they should pay at least that amount upon the mortgage with the interest thereon at seven per cent., and should indemnify Guest. At the end of the paper are the words, “We do hereby acknowledge the receipt of the above-mentioned stock.” The whole is signed, “ Schmucker & McConnell.” Guest’s name is not signed to the paper. An inventory of certain goods left with Schmucker & McConnell was also made out and delivered to Guest at the same time with the agreement. The district court refused to receive the agreement in evidence; sustaining an objection that it was incompetent, and not an agreement in writing signed by the parties. It permitted the parties to testify as to the parol agreement between Guest and Schmucker & McConnell. Guest testified to an agreement as expressed in the writing. Schmucker and McConnell denied such agreement, but admitted receiving the property, and that it was to indemnify them against the mortgage, as well as for other purposes, and testified that the signature of the firm was simply intended to be to the receipt, and as an acknowledgment that they had such property of Guest’s in their possession, and that there was no definite and complete agreement as to what they should do with the proceeds of such property. The court below found that there was due from Guest on the note $2,415.09, and rendered judgment against him for that amount, and entered a decree foreclosing the mortgage and barring all the defendants. It adjudged no personal liability upon Schmucker and McConnell.
Upon these facts it is clear that but for the statute of limitations a recovery against Guest, the mortgagor, of the amount unpaid on the note, and a decree foreclosing the mortgage and barring all the other defendants, would be right. So that the question in the case is, whether and how far that statute protects the plaintiffs in error. Guest, the mortgagor, and against whom the personal judgment was taken, is not here alleging error, and of course we need not consider any error against him except so far as it may affect the present plaintiffs in error. Again, it is also clear, that if nothing had intervened between the last payment on the note and the commencement of this action, the statute would have been a complete bar to any action on the note. More than five years had 'elapsed after the payment, and before the suit. Still again, it is settled by the decision of this court, that the answer in "the garnishee proceedings, though in some sense an acknowledgement of the debt, yet being one made to a mere stranger, and not to the creditor, or to any one acting for or representing him, does not avoid the bar of the statute. Sibert v. Wilder, 16 Kas. 176. And again, so long as the statute does not bar a recovery on the note, it does not a foreclosure of the mortgage. We are aware of the fact that in some states a distinction is drawn between the note and mortgage, and that a foreclosure of the latter may be barred even when a recovery on the note is not. And this in states such as California, where the note is the principal thing and the mortgage only a security for the note. Wood v. Goodfellow, 43 Cal. 185. We are not now considering the case of a revivor of the note by payment, promise, or acknowledgement; but refer simply to those cases in which the note never has been barred. In such cases we hold, that the mortgage lives as long as the note it was given to secure; that as no separate action can be maintained on the mortgage, independent of the debt secured by it, so there is no separate application of the statute to it. This is scarcely questioned where the mortgagor and promisor are the same, and the mortgaged premises remain the property of the mortgagor; but it is claimed that a conveyance of the mortgaged premises changes the operation of the statute, and that the grantee may successfully plead the statute to prevent a foreclosure, when his grantor, the mortgagor and promisor, cannot to prevent a personal judgment on the note. But if a payment on the note before the conveyance keeps the mortgage alive while the premises remain the property of the mortgagor, why should it not continue to have the same effect after the title has passed to his grantee? Note and mortgage are separate and distinct instruments no more after the conveyance than before. The relation of each instrument to the other is the same, after as before. One is principal and the other is security.' By the conveyance, other parties become interested in the mortgaged premises; so they do by the death of the mortgagor; but in each case the interest is subject and subordinate to the mortgage. By indorsement or guaranty, other parties may become interested in the note; but this does not affect the relation of the note to the mortgage, or cause the statute to bar the note when it does not the mortgage. This question was before us in the recent case of Waterson v. Kirkwood, 17 Nas. 9, 13, 14, in which we took occasion to express our dissent to the views of the California court as announced in Wood v. Goodfellow, supra. See also Palmer v. Butler, 36 Iowa, 576; Clinton Co. v. Cox, 37 Iowa, 570; Heyer v. Pruyn 7 Paige’s Ch. 465; Hughes v. Edwards, 9 Wheat. 490.
Again, when the note is barred, the mortgage is also barred, and a grantee of the mortgagor may interpose this defense to an action to foreclose the mortgage, whether the mortgagor does or not. He may protect the property conveyed to him by a plea of the statute, as to any lien sought to be charged against it. He cannot of course interpose-the plea beyond the extent of his interest, and therefore only to prevent a foreclosure. In the case of Coster v. Brown, 23 Cal. 142, the court decided that a “purchaser of an estate, subsequent to the mortgage, may intervene and plead the statute;” and further, “when the debt, to secure which a mortgage is given, is barred by the statute of limitations, the mortgage is also barred, and if an action is brought to foreclose it, one who has purchased or acquired a lien on the property subsequent to the mortgage has a right to intervene in the action and plead the statute of limitations.” Also, the case of Grattan v. Wiggins, 23 Cal. 16, where the rights of a subsequent grantee are more clearly set out, as follows: “In an action to recover judgment for the amount of a debt secured by mortgage on real estate, and also to foreclose the mortgage, the grantees of the mortgagor, purchasers subsequent to the execution of the mortgage, have a right to plead the statute of limitations as to that part of the claim of the plaintiff which asks for a decree foreclosing the mortgage and a sale of the mortgaged premises.” Also, see to the same point, Lord v. Morris, 18 Cal. 482, 490; McCarthy v. White, 21 Cal. 495; Low v. Allen, 26 Cal. 141; Lent v. Shear, 26 Cal. 361; Wood v. Goodfellow, 43 Cal. 185; Harris v. Mills, 28 Ill. 44; Pollock v. Maison, 41 Ill. 516; Medley v. Elliott, 62 Ill. 532.
Once more: When the note is barred, the mortgage is also barred, and no subsequent payment, promise, or acknowledgment can revive the mortgage as to property which the mortgagor has prior thereto conveyed to a third party. Whenever the mortgage is barred, the property is free from the lien. It is, as respects the mortgage, as though the latter had never existed. If therefore the mortgagor no^ longer owns the property, he cannot impose a burden upon it — his power to bind the property has ceased. He is as powerless over it as though he had never owned it. He can revive the note, as he could give a new note, for no rights but his own are involved. He can revive the old mortgage just so far and so far only as he could give a new mortgage, and that is, to bind his own property. Day v. Baldwin, 34 Iowa, 380.
Still further we remark, that the acceptance of a deed which in terms provides that the grantee shall pay off a certain incumbrance, is an undertaking by the grantee to pay the incumbrance, and an undertaking which may be appropriated by the holder of the incumbrance, and upon which he may maintain an action. Corbett v. Waterman, 11 Iowa, 87; Bowen v. Kurtz, 37 Iowa, 240; Ross v. Kinnison, 38 Iowa, 397; Lawrence v. Fox, 20 N. Y. 268; Thorp v. Keokuk Coal Co., 48 Iowa, 253; Burr, Admx., v. Beers, 24 Iowa, 178. The rule is thus stated by the assistant vice-chancellor in Blyer v. Monholland, 2 Sanford’s Ch. Rep. 478: “The obligation is not enforced as being made by Monhollands to the complainant for the payment of Fitzrandolph’s debt, but as a promise by M. to Fitzrandolph to pay him $2,500 by paying that sum to the complainant in discharge of his debt, which promise the complainant, as the mortgage-creditor of Fitzrandolph, is equitably entitled to lay hold of and enforce.” And the law courts have since then held, that a legal action might be maintained by the holder of the security. Lawrence v. Fox, 20 N. Y. 268; Anthony v. Herman, 14 Kas. 494. Such an undertaking is a contract in writing, and the statute of limitations does not begin to run upon such a contract until the execution of the deed. Nor is it material that this con tract is not signed by the grantee. The acceptance of the deed makes it a contract in writing binding upon the grantee, just as the acceptance by a lessee of a lease in writing signed by only the lessor makes it a written contract binding upon such lessee; and suit can be instituted upon it, and the same rights maintained, as though it were also signed by the grantee. And it is not to be considered as a mere promise or acknowledgment, as named in the exceptions to the statute of limitations, and therefore to be signed by the party to be charged. Those exceptions apply to debts already existing against the parties sought to be held; and aim to continue in force prior liabilities. But the grantee in such a deed was not liable before its execution! His liability dates from that. That is the first contract he has made, the first obligation he has assumed. At that time therefore, as to him, the statute first commences to run. Nor is he discharged by the fact that the debt as to the original debtor has since his promise become barred by the statute of limitations. For his contract is an original, absolute promise to pay the debt, and not a mere contract of indemnity, and to save the original debtor harmless. The creditor may ignore the original debtor entirely, and proceed directly and solely upon this promise. The grantee is not simply a surety. His promise is not to see that the original debtor pays, or to pay if he don’t. But it is a direct, absolute and unconditional promise to pay the debt to the creditor. Even where there has been only a guaranty of payment, it has been decided that the statute did not commence to run as to the guarantor until the date of his guaranty. Thomas v. Croft, 2 Rich, (S. C.) 113; Cruger v. Daniel, 8 U. S. Digest, Abbott’s Rev. 790; or, 1 McMullan (S. C.) Ch. 157. Upon the same principle, and by the same reasoning, it would seem to be clear, that, where the deed specifies that it is made subject to a certain mortgage, an acceptance of a deed is an undertaking that to the extent at least of the value of the granted premises the grantee shall pay the mortgage. Or in other words, it is an agreement by the grantee that the granted premises shall be used so far as may be necessary to discharge and pay the mortgage. And as in the case last suggested', and for the reasons there given, the statute begins to run only from the execution of the deed.
We think the written agreement signed by Schmucker & McConnell should have been received in evidence. It was a written agreement to pay this note and mortgage, or at least to pay a certain amount thereon. It recited an ample consideration therefor, was executed less than five years before the commencement of the action; and under the decision in Anthony v. Herman, supra, we fail to see any valid objection to its admission. The evidence of an oral agreement was of no value, for it placed such agreement more than three years prior to the commencement of the action. Other objections might also be presented to it.
It does not follow that the case is to be considered here as .though the written agreement had been received in evidence, for though the court erred in not admitting it, yet non constat, that if admitted no valid defense to it could have beén offered. The error is righted by remanding the case for a new trial, and not by considering the testimony as really in the case. For instance, suppose a tax deed were offered .in evidence, objections made to it as void upon the face, and sustained. This court on review, if it held the deed prima facie valid,. should not dispose of the case as though the objections had been overruled and the deed admitted, for if admitted the opposing party might have shown that it was void because prior to any sale the taxes had actually been paid. In other words, a party by objecting to the admission of testimony does not waive all defenses he may have to the testimony if admitted. We notice that some of the authorities cited by counsel for defendant in error seem to sustain their claim, but we are not prepared to assent to it.
We think that upon- the record as it now stands before us, no decree of foreclosure and sale should have been entered as to the entire property, but only as to the undivided-half conveyed to Schmucker, and for the satisfaction of one-half the debt. The judgment will therefore be reversed, and the case • remanded for a new trial, unless the defendant in error shall consent to a modification of the decree in accordance with the views herein expressed, such consent to be filed in the district court within thirty days after the receipt of. the mandate in this case. Any error, if error there be, in the decree, as to redemption, can be corrected in the subsequent trial and decree, or after the filing of the consent.
Valentine, J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by the plaintiff to recover the value of two mules, killed on the railroad track of defendant, by one of its trains. The testimony, which is preserved in the record, is, so far as any question of negligence on either side is concerned, as follows:
Hopkins, plaintiff, testified: “The mules in question, the property of the State of Kansas, and in plaintiff’s possession as warden, together with several others, a small herd, were sent by him, on the 7th of June 1874, along a private or neighborhood road from the penitentiary, to be driven on said private road across the railroad of defendant, near by, to graze on the timber-bottom beyond. He sent them by and they were under charge of two convicts from the penitentiary, whom witness then regarded and still thinks were at the time thoroughly competent and trustworthy men for the purpose, and whom he was in the habit of placing in charge of said mules, and had ever faithfully discharged their duties as such herdsmen.”
Charles Franke, witness for plaintiff, testified, that, “He was driving in a buggy, with his brother, from their farm in the vicinity, along said neighborhood road, and had approached near the said railroad of defendant, where the said mules were killed ; that he saw the mules in charge of the two convicts who were driving them, and that the mulles seemed to be coming up from drinking at the creek, which makes a bend just there, leaving a narrow strip between it and the railroad track, and that they were coming out from this bend as the train came around the curve in the railroad near by; that he heard no whistle, or ringing of the locomotive bell, till just before the engine struck the animals; that there was no grass in the bend of the creek where the mules were when first seen by witness, and some of them in crossing the track were struck by the locomotive. There was no other place where they could have approached the water in the creek.”
Henry Franke, for the plaintiff, testified substantially the same as the last witness.
John Robinson, called as a witness by plaintiff, testified, that, “He was a fireman on the engine and train which ran over the mules mentioned; that the train was an excursion train, chartered by the German Turners’ Society of Leavenworth, and was en route from Leavenworth to Lawrence, on Sunday morning, at a point near the Kansas State Penitentiary, at about eight o’clock, or about one hour and-a-half or two hours before the usual time for the passing of the morning train on the road at that point. We were ordered to leave an hour or more before the regular leaving-time from the Leavenworth depot, and were running at about the rate of twelve to fifteen miles per hour, which was within the time ordered by schedule. Could not say whether the whistle was blown before passing the curve, which is from one to two hundred yards from where the mules were killed, but the whistle was blown when the engineer saw the animals on the track ahead, after and as the train rounded the curve. The train was not supplied with the Westinghouse air-brake, and could have been stopped considerably sooner with, than without, that appliance, but could not have been stopped before it reached the place where the mules were.”
The value of the mules killed was conceded to be three hundred dollars, and it was admitted that the defendant had the right, but had not, at the point named, fenced its track. Upon this testimony the court found as matters of fact, among other things that — “3d, the running over and killing of said mules was not the result of any negligence of the defendant; but, 4th, was the result of substantial negligence of the plaintiff contributing thereto;” and as a conclusion of law, that plaintiff was not entitled to recover.
It seems to us that the judgment of the court below must be reversed. We fail to see any evidence of negligence on the part of the plaintiff in the matter. Certainly, it was not negligence to send the mules out to graze, although to reach the place of grazing they must be driven across the railroad track, providing they were, as in this case, driven across at a place where it is conceded they might rightfully be driven. They were sent in charge of trusty and competent men. Nor is there in the meager statement of what took place at the time of the, injury, anything showing negligence on the part of the men in charge. The same may perhaps be said with equal truth of the conduct of those in charge of the train.. But it is unnecessary to enter into this question of negligence, for we conceive that the purpose and scope of the stock-killing law of 1874, in force at the time of this injury, was to obviate the necessity of such inquiry. It imposes liability for stock killed and wounded bjr running trains, “irrespective of the fact as to whether such killing or wounding was caused by the negligence of such railway company or corporation, or the assignee, or lessee thereof, or not.” (Laws 1874, p. 143, § 1.) That applies to such a case as this, where stock is killed by a passing train. We do not mean to decide that where the injury results from the willful or wanton act of the owner, that he can recover; nor that this law applies where the stock is killed at a public crossing, or depot-grounds, at which there can be no fence, or where the stock get upon the track at such a place, and then stray along the track to the place of injury, or where stock which is being carried in the cars is injured. But where the road is .unfenced at a place where it can and ought to be fenced, and stock there gets upon the track through no wanton or willful act of the ownerá, or persons in charge, and are injured by passing trains, then the law applies, and obviates the necessity of all inquiry into the mere negligence of the parties concerned, whether owners, persons in charge of the stock, or managers of the railroad trains.
The judgment will be reversed, and the case remanded for a new trial'.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was originally commenced by Daniel Giltenan against B. W. Lemert, to quiet title to a certain piece of land. Lemert answered, setting up title in himself, and asking for a judgment in his favor for the recovery of said land, and for the possession thereof. The case was afterward tried; judgment was rendered in favor of the defendant; the plaintiff then brought the case to this court, where the judgment of the court below was reversed, and cause remanded for a new trial. (Giltenan v. Lemert, 13 Kas. 476.) A new trial was afterward had, and again judgment was rendered in favor of the defendant for the land; but at this time the plaintiff made an application for the benefit of the occupying-claimant law, (Gen. Stat.749, et seq.,) and of section 2 of the act to protect bona fide purchasers of Indian lands. (Laws of 1874, p. 139.) The court below granted the application. And of this the defendant below, who is now plaintiff in error, complains, and seeks by this petition to have the same reversed. Whether said application was rightfully or wrongfully granted, is the only question in the case which we need consider. The facts of the case are substantially as follows: The land in controversy was originally a part of the Osage Indian reserve, and a part of that portion of said reserve which was afterward called the Osage ceded lands. By article 14 of the treaty with the Osage Indians, of September 26th 1865, (14 U. S. Stat. at Large, 689,) it is provided as follows :
“The half-breeds of the Osage tribe of Indians, not to exceed twenty-five in number, who have improvements on the north half of the lands sold to the United States, shall have a patent issued to them, in fee simple, for eighty acres each, to include, as far as practicable, their improvements, said half-breeds to be designated by the chiefs and headmen of the tribe; * * * all of said lands to be selected by the parties, subject to the approval of the Secretary of the Interior.”
The land in controversy was a part of “the north half of the lands sold to the United States” under the provisions of this treaty. At the time that this treaty was made, Gesso Chouteau, who was a half-breed Osage Indian, occupied, with his wife and family, the land now in controversy, and had improvements thereon. It was his homestead. Chouteau claimed to be one of the twenty-five half-breed Osage Indians who should receive land under the provisions of said article 14 of said treaty; and immediately after the promulgation of said treaty, he selected the land in controversy as the land which he should so receive. On August 3d 1867, while Chouteau and his family were still occupying said land as their homestead, he sold said land to Giltenan for $350, and he alone executed to Giltenan a quitclaim deed for said land. At the same time there- was a parol contract made between the parties, in substance, but not in these exact words, that Giltenan should get the title to said land from the government in his own name if he could, but if he could not, and if such title should be transferred from the government to Chouteau, then Chouteau was to execute another deed to Giltenan for the land. About August 11th 1867, Giltenan took possession of said land, and has occupied the same as the homestead of himself and family ever since, and has made lasting and valuable improvements thereon. After said quitclaim deed was executed to Giltenan, and on September 16th 1867, Chouteau was designated by the chiefs and headmen of said tribe of Indians as one of the half-breed Osage Indians who should receive lands under said Osage treaty. Afterward, and on June 15th 1869, Chouteau’s selection of said land was approved by the Secretary of the Interior, and on June 10th 1870 a patent for said land was issued to Chouteau. On. February 3d 1873, Chouteau and wife executed to Lemert a general warranty deed for said land. All these facts were shown to the court, and. jury, on said second trial; and the jury then found thereon a verdict in favor of the defendant, Lemert.
The plaintiff, Giltenan, then made an application for relief under the provisions of the oceupying-elaimant act, and under the act to protect bona fid,e purchasers of Indian lands, as aforesaid. This application was in writing, but just what it contained, and how much it contained, we have not been informed, and cannot tell, for the plaintiff m error has not seen lit to bring such application to this court. We must therefore, in support of the decision of the court below, presume that it was sufficient, and that it contained all that was necessary for it to contain. The court below then rendered judgment in favor of the defendant for the land, but also at the same time granted plaintiff’s application for the relief asked for under said acts. The granting of said application was done upon no other evidence than that introduced on the trial, and that contained in the application itself. The plaintiff in error claims that said applica tion was made after said judgment was rendered, and not before. The record however would seem to show that it was made both before and after. But as all these acts were done substantially at the same time, we. suppose it makes but very little difference which was done first. The plaintiff in error seems also to claim that the application should have been embodied in the pleadings. This cannot be so. The law certainly does not contemplate that any party litigating the question of ownership to land, shall set forth in his pleadings that he expects to claim the benefit of the occupying-claimant act, and thereby confess the hopelessness of his cause. It is only when a party is defeated, when his antagonist has set up and proved an adverse and better title, that he should make his application; and even then no formal or written application is required. Section 603 of the code (Gen. Stat. 750) provides how the occupying claimant shall make his application. It says:
“The court rendering judgment in any case provided for by this act, against the occupying claimant, shall, at the request of either party, cause a journal entry thereof to be made; and the sheriff and clerk of the court, when thereafter required by either party, shall meet and draw from the box a jury of twelve men,” etc.
And this jury, upon an actual view of the premises, and upon proper evidence, determines the whole question as to how much the occupying claimant shall receive for the lasting and valuable improvements made by him. As to what evidence is required before granting an application in an occupying .claimant’s case, it is not necessary to determine in this case. Sufficient evidence for such a purpose was introduced on the trial of this case, and presumptively sufficient evidence was embodied in the plaintiff’s said application. But whether the evidence introduced on the trial should be taken into consideration by the court granting the application, is questioned in this case; and while we do not think it is necessary to decide that question in this case, still we would think such evidence might be taken into consideration. Probably all that is necessary in such a case is, that the court shall be able to know from the evidence introduced on'the trial, or from evidence submitted at the ,time of the hearing of the application, that the applicant’s title to the land, though defective, is one provided for by the occupying-claimant act. And we suppose that, since the decision in the case of Krause v. Means, 12 Kas. 335, there can be no question that this case comes within the occupying-claimant act. In that case it was held that, although the Indian owner, (who was a woman,) had no power to sell her land, yet, that she could, at the same time, so permit it to be incumbered by an occupying claimant’s light or lien that afterward, when she obtained the power to sell the land, she could not sell it so as to defeat an occupying claimant’s right, and that such occupying claimant could set up his right against any subsequent grantee of hers.
Said act to protect the bona fide purchasers of Indian lands, provides among other things as follows:
“That when in any case any of said lands are held by any person who has purchased the same in good faith, and for a valuable consideration, from the Indian or Indians to whom the same were allotted under such treaty, * * * such purchaser shall not in any case be evicted from such lands by any other person or persons who may have subsequently acquired an adverse title to the same, until such purchaser shall have been repaid the full amount of his or her purchase-money, with lawful interest thereon.”
The jury in this case assessed the value of the improvements made by Giltenan, over and above all waste and profits, at $460, and fixed the amount of the purchase-money paid by Giltenan to Chouteau, with interest, at $460.25; total, $920.25. And the court below allowed this amount to Giltenan. Now, it will be remembered that Giltenan procured his title from Chouteau, and paid said $350 purchase-money to Chouteau on August 3d 1867; and that Lemert procured his title from Chouteau and wife on February 3d 1872. This action was commenced February 7th 1872. And the said act to protect bona fide purchasers of Indian lands was not passed until March 7th 1874. And up to March 26th 1874, (the time when said act took effect,) there was no law authorizing any person 'evicted from Indian lands, or from any other lands, to recover from the successful party the amount of the purchase-money which such unsuccessful party had paid. .It will be seen that this action was pending for more than two years before said act took effect; and if judgment had been rendered at any time during that two years, nothing could have been allowed Giltenan for said purchase-money. When Lemert purchased said land, it was free and clear from all liens, charges, or incumbrances for purchase-money. It remained so up to the commencement of this suit, and for more than two years thereafter. And nothing has transpired since to create any such lien, charge, or incumbrance, except the mere passage of said act of the legislature. And what power has the legislature to impose such a lien, charge, or incumbrance upon the land of Lemert, without his consent, even if the legislature so desired? It is our opinion that said act cannot have the effect, under the circumstances of this case, to require Lemert to pay to Giltenan said purchase-money.
The judgment of the court below will therefore be so modified as to require Lemert to pay only the $460 for said improvements; and he will not be required to pay said $460.25, purchase-money and interest. The costs of this court will be equally divided between the parties.
Brewer, J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion by the court was delivered by
Valentine, J.:
Jacob Gottlieb commenced an action in a justice’s court against T. D. Harris, An order of attachment was issued in said action, and delivered to James J. Avery, constable. Avery levied the same upon a team of horses, a wagon, harness, fly-nets, blanket, and whip, as the property of said Harris, and afterward sold the same. W. J. Eastes claimed the property, and commenced this action in the district court of Bourbon county to recover its value. A trial was had, and the plaintiff Eastes recovered a verdict and judgment against the defendants, Avery and Gottlieb, for the sum of $259.75. To reverse this judgment the defendants below as plaintiffs in error now bring the case to this court. They assign two grounds for error: 1st, that the verdict of the jury is not sustained by the evidence; 2d, that the court below erred in giving a certain instruction to the jury.
I. The question presented to the jury, and determined by the jury, was simply which side had the preponderance in a great mass of contradictory and conflicting evidence. Either side presented sufficient evidence, if it had been true, to have obtained the verdict in favor of that side; and the question for the jury was, simply, which of the evidence it would believe, and which it' would disbelieve. The jury found in favor of the plaintiff below, upon such evidence, and this court cannot now set the verdict aside.
II. The plaintiffs in error claim that the court below erred in instructing the jury that—
“If the jury believe from the evidence, that Harris sold the property in question in good faith to pay any particular creditor of his, to the exclusion of others, without an intention to defraud, but simply to prefer one creditor to another, although the plaintiff may have had full knowledge of such intent on the part of Harris, it would not vitiate the purchase of Eastes, the plaintiff.”
We cannot say that this instruction was erroneous. It would seem from the evidence, that the property once belonged to Harris; that Harris sold it to Somerville, and Somerville sold it to Eastes. Harris was present at the time Somerville sold the property to Eastes. Mrs. Harris was probably also present. Eastes held Dodson’s notes for $185, and interest. Harris owed Dodson about $200. When Eastes bought said property he gave to Somerville Dodson’s notes, and one of his own for $65. Somerville then handed the Dodson notes to Harris, and Harris handed the same (probably at that time) to his wife. This was on Saturday afternoon, of January 16th 1875. On the next Monday morning, early, Harris left the state, and has never returned. A short time afterward Mrs. Harris sent said Dodson notes by Eastes to Dodson, and Dodson accepted the same as payment to that extent of his claim against Harris. Eastes testified on the trial, among other things, as follows:
“Don’t know as Harris said much of anything at sale. He saw the trade taking place.” “1 knew Harris was.indebted to Dodson about $200, and believed that the Dodson notes which I gave Somerville were to be turned over to Harris by Somerville, and by Harris to Dodson.” “I turned the Dodson notes over to Somerville at the time I made the trade with him.” “I turned them over when ! bought the horses. Mrs. T. D. Harris got the notes. Somerville turned the notes over to Harris at that time.” “T. D. Harris left the notes with his wife. After that, she asked me if I ever saw old man Dodson. She asked me to turn the notes over to him, and I did so.”
It would also seem from the evidence, that Harris, prior to said transactions, had been in the coal business, and that he failed in such business. He was then able to pay a portion of his debts, but not all of them. And he did pay a portion of his debts, but not all of them. A portion of the testimony of Dodson, brought out by the defendants below on cross-examination, will' indicate something as to how Harris acted after his failure. Dodson says that he went to see Somerville after Harris left the state, “and made inquiries from him if Mr. Harris had left me [Dodson] the money, because I had understood that he had paid all other coal men up for their coal.” Now it is fair to infer from the foregoing facts, that said sale was made to Eastes by Somerville in the presence of Harris, for the purpose of obtaining funds to pay Dodson, and that it was all in good faith. After Harris left the state, and after Dodson received said notes, he had a settlement with Mrs. Harris, and she paid him the balance of his claim. Taking into consideration the foregoing facts, we do not think that said instruction was erroneous. >
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Geo. W. Cockerell sued John C. Moll before a justice of the peace and recovered judgment for $37.50. Moll appealed to the district court. Afterward Moll sued Cockerell before a justice of the peace, and recovered judgment for $15. Cockerell appealed to the district court. Both actions were for trespass. In the justice’s court, and before trial, Cockerell, in the case where he was defendant, offered to allow judgment to be taken against him for five dollars. The cases came on for trial in the district court, when upon the application, and by the agreement of both parties, the two cases were consolidated into one, which was proceeded with from that time under the title — “George W. Cockerell vs. John C. Moll, and John C. Moll vs. George W. Cockerell, consolidated.” On the trial of the consolidated case, Moll recovered judgment for less than five dollars. The costs accruing after the offer to confess judgment were $199.25. These costs accrued in the case of Moll v. Cockerell, and in the consolidated case. Ought they to be taxed against Moll ? Clearly not. The statute applicable thereto reads:'
“If the defendant, any time before trial, offers in writing to allow judgment to be taken against him for a specified sum, the plaintiff may immediately have judgment therefor, with the costs then accrued; but if he do not accept such offer before the trial, and fails to recover in the action a sum equal to the offer, he cannot recover costs accrued after the offer, but costs must be adjudged against him.” Gen. Stat., p.799, §117.
Neither the letter nor the spirit of this statute requires that these costs be taxed against Moll. Before the letter of the statue applies, there must be a final adjudication in the action in which the offer was made, that the plaintiff is not entitled to recover the amount offered. Here there has been no such adjudication. It has never yet been determined how much Moll ought to recover on the cause of action disclosed in his bill of particulars, or in the single action which he brought, and in which the offer was made. The only semblance of a determination was in the judgment before the justice, which awarded Moll three times the offer.
Neither does the spirit of the statute permit any such taxation. The idea of the law is, that the wrongdoer, the party who causes the litigation, shall pay. the expenses thereof. Hence, when a party recovers judgment, the ordinary rule is that he also recovers his costs, because the judgment is a determination that the party against whom it is rendered is the party in fault, and that through his wrong, whether of omission or commission, the litigation was made necessary. But it is clear that sometimes the litigation is due to the rapacity of the plaintiff, and his efforts to extort unjust amounts from the defendant, and it would be harsh and wrong to compel a defendant who was willing to do right to pay the costs of defending himself against these unjust and extortionate demands. Hence the provision of the statute quoted. It aims to compel a plaintiff who is making both just and unjust demands, and refusing to accept that which he ought, to bear the expense of litigating the* unjust demand. It is therefore eminently fair and just. But in the case at bar there were two actions pending, in one of which Cockerell had recovered a judgment, and in the other Moll. Each party therefore was claimant in a separate action. Now Cockerell made no offer to settle both actions, and stop further litigation in them by a judgment in favor of Moll, for even a cent. He was willing to settle Moll’s claim and action by a judgment for five dollars, reserving the right to prosecute his own claim and action. But he does not show that Moll was not entitled to more than five dollars on his claim, or that he was making any unjust claim in it. Because the verdict in Moll’s favor in the consolidated actions was only five cents, non constat that Moll’s claim in the separate action was not justly fifteen dollars, as determined by the justice. He does not show therefore that Moll was making any unjust or extortionate demand. On the other hand, as he brought the first suit before the justice, and as on a trial of the joint actions the verdict is against him, it would seem that he is the party responsible for the entire litigation, and ought justly to bear the whole expense of it.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by William Miller, under “an act relating to killing or wounding stock by railroads,” (laws of 1874, page 143,) against the St. Louis, Lawrence & Western Railroad' Company, for killing his cow. Judgment was rendered in the court below in favor of Miller and against the railroad company for $35 damages for killing the cow, and for $10 attorney-fees. The railroad company brings the case to this court, and assigns for error that, “said court erred in rendering said judgment for the following reasons, to-wit, that the bill of particulars on which said judgment was founded does not contain facts sufficient tó constitute a cause of action against the defendant below.” This is. the only assignment of error in the case. The plaintiff in error now seems however to admit by its brief filed in this court that said bill of particulars does • “contain facts sufficient to constitute a cause of action against the defendant below.” The counsel for plaintiff in error now say in their brief, “we do not make any point on the judgment for value of the cow, but only that for attorney-fees.” It will therefore be seen that the entire object of the litigation in this court is to avoid the payment of an attorney-fee of ten dollars, supposed to have been erroneously allowed, not because attorney-fees may not be recovered in this class of cases, and not because the evidence was not amply sufficient to authorize such a recovery in this particular case, but merely because it is supposed that the allegations of the plaintiff’s bill of particulars are not technically sufficient to authorize such a recovery. The action was originally commenced before a justice of the peace. The plaintiff below filed a bill of particulars, setting forth a good cause of action for $35 damages for killing his cow, and then alleges, “that $10 is a reasonable attorney-fee for the prosecution of this suit,” and then “prays for judgment against said defendant for the said sum of $35, his damages sustained as aforesaid, and $10 attorney-fee for the prosecution of this suit and costs.” This bill of particulars was evidently drawn by a lawyer, but the plaintiff in error has not seen fit, in bringing it here, to make it or any ■other part of the record show whether it was signed by the plaintiff below himself, or by his attorney, or whether it was signed at all, or not. Neither does the plaintiff in error bring any portion of the proceedings of the justice to this court, except said bill of particulars, and the appeal bond filed when it (the plaintiff in error) appealed from the judgment of the justice in this case to the district court. And . hence we cannot tell whether the plaintiff below was assisted by counsel in the justice’s court or not. Neither has the plaintiff in error brought any of the proceedings of the district court to this court, except the journal entry of the proceedings on the trial, and the judgment. This journal entry shows that the case was regularly called, that the plaintiff ■below appeared by John P. St. John, his attorney, that the defendant did not appear, that a jury was impanneled to try the cause, that the cause was tried, and that the jury upon the evidence found the following verdict, to-wit:
“We the jury find for the plaintiff, and assess his damages at thirty-five dollars, and ten dollars attorney-fee.”
Whether the plaintiff below was assisted by counsel at any time except during the trial, we cannot tell. Whether the plaintiff’s bill of particulars was amended at any time, either in the justice’s court or in the district court, we cannot tell; :and what the evidence was respecting attorney-fees, or indeed .respecting anything else in the case, we cannot tell. We have only detached portions of the record of the case before us from which to ascertain any of these things. We have “the bill of particulars of the plaintiff,” “the appeal bond of the defendant,” and “the journal entry of the trial and judgment.” These are all that the plaintiff in error has chosen to submit to us; these are all that the clerk of the district court has certified to, and the certificate mentions them in the above words. What other proceedings were had in the case, we cannot tell. It does not appear that any bill of exceptions was drawn. Indeed, it does not even appear that any exception was taken. And it does not appear that any case was made under the statute for the supreme court. This is .not such a case-made, nor does the plaintiff in error even claim that it is. It is merely a petition in error founded ■upon three detached and isolated fragments of the record. But even these detached, isolated, and selected fragments of the record, do not show that the court below erred. We would even infer from them that the court below did not err. The judgment of the court below must therefore be affirmed.
It is understood by counsel for the parties, that precisely .-the same legal questions are involved in the cases of this same plaintiff in error against Anson Sauers, and Robert Wilson, as are involved in this ease. Therefore the judgments in those cases will also be affirmed.
All the Justices concurring. | [
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The opinion of the'court was delivered by
Valentine, J.:
The facts of this case are substantially as follows: On 21st June 1869, Thomas J. George purchased in the name of his wife, Caroline George, lots 1, 2 and 3, in block 19, in the town of Muscotah, in Atchison county, for which he was to pay $205. One-half of the purchase-money was paid at that time, and the other half was to be paid in one year. During the summer of 1869 said Thomas J. built a dwelling-house, and made other improvements on said lots, worth, in the agrégate, about $1,200, and during the said summer he and his family moved into said dwelling-house; and from that time till October 1872 they occupied said property as their homestead. The other half of said purchase-money was afterward paid by George, and on May 29th 1871, the grantor executed to Mrs. George a deed for said premises. All of said purchase-money, and all the money that it took to pay for said improvements, belonged to George, and not to Mrs. George; and the lots were purchased, and the title taken in her name, for the purpose of keeping the property beyond the reach of George’s creditors. The jury say in their findings, that said lots are not farming lands, and whether the town of Muscotah is incorporated or not, is not shown. The defendants however had previously alleged in their answer that the said town of Muscotah was incorporated, and this allegation was not denied by plaintiffs by any pleading verified .by affidavit. On May 1st 1871, Thomas J. George was indebted to the plaintiffs Hixon & Co. on an account for the sum of $858, the first item of which account was made on May 12th 1870; but what the nature of this item was, is not shown; and on June 15th 187l, judgment was rendered on said account in favor of said Hixon & Co. and against George for that amount. In October 1872, Thomas J. George went with his family to the Indian country, in the employment of the government of the United States; and they are still there, in such employment; but during all that time, they have not acquired any other residence, but have always intended and still intend to return to their former homestead, which homestead has during all that time been occupied by tenants of theirs from whom they have collected rents.
On September 15th 1873, Hixon & Co. commenced this action for the purpose of subjecting said lots to the payment of their said judgement. The case was tried by the court and a jury. “The court held that special issues or questions of fact might be submitted to the jury, but no general verdict could be rendered” in the case. • Therefore, only “special issues or questions of fact” were submitted to the jury, and upon these special issues or questions the jury made special findings. These findings covered nearly all the issues in the case, and also some special matters which were not in issue. After these special findings were made, the court itself, upon .these special findings, and the pleadings and the evidence, made a general finding in favor of the defendants 'George and wife, and against the plaintiffs, and thereupon the court rendered judgment in favor of the defendants and against the plaintiffs for costs. This judgment the plaintiffs now seek to have reversed.
We proceed to consider the various questions involved in this case, not in the exact order in which they have been presented to us by counsel, nor even in the exact order in which we have stated the facts of the case, but in an order equally as convenient. The court of course erred in holding that no general verdict could be rendered in the case. The court could, if it had so chosen, have ordered all the issues in the case to be tried by a jury, and could have done so by a general order, without the slightest mention of any particular issue; and then the jury could, (unless the court had otherwise ordered, either on its own motion, or at the request of one of the parties,) have found a general verdict upon all such issues, without mentioning any particular fact or issue in the case. But the error was immaterial; for in an equity case, like this, involving many issues as this does, the court has the power, without giving-any reason therefor, to send any portion of the issues which it chooses to a jury to be tried, and to require the jury to make a separate finding upon each of such issues; and the court may try the other issues in the case itself, or it may send them or any portion of them to another jury, or to a referee, to be tried. (Gen. Stat. 680, § 267; Carlin v. Donegan, 5 Kas. 496, 497.) In this case, neither party requested that the court should make separate findings, either of fact or of law, and therefore the court did not err in finding generally. (Gen. Stat. 684, § 90.)
Upon the facts of the case, as thus found by the court and jury, and admitted by the pleadings, can the plaintiffs recover? We think not. No part of the plaintiffs’ claim accrued prior to May 12th 1870; but long before that time said lots had been purchased in .the wife’s name; long before that time all the money ever expended by George, either for the land itself or f°r any improvement thereon, except $102.50 of the purchase-money for the land, had been paid out and expended by George, and had wholly ceased to be his property; and long before that time George and his wife and family were residing upon said land, and occupying the same as their homestead; and it must now be presumed, as nothing appears to the contrary, that the plaintiffs were fully aware of all these facts, not only at the time they gave the credit to George for which they now desire to have said lots made liable, but long before that time. Therefore, no fraud upon their rights can be imputed because said lots were purchased in George’s wife’s name, or because of his expenditure of said money. Nor can any fraud be charged even in regard to said $102.50 last expended. And generally, the expenditure of money in purchasing a homestead, or in subsequently paying therefor, or in making improvements thereon, can never be charged as a fraud upon the rights of creditors, or others, unless the complaining party had at the time of such expenditure some special interest or claim upon the funds used for such purpose. Now in this case the plaintiffs had no interest in or claim upon said $102.50. And as it was expended in the payment for property which was already the homestead of both George and his wife, it passed beyond the reach of George’s creditors, and neither it nor the homestead can be taken for George’s debts. And it would' have made no difference if the title to the property had been taken in George’s name, and not in his wife’s name. In either case, the property would have been exempt from the claims of any general creditor of either George or his wife. And it cannot make any difference in any case whether the husband, or wife, pay the purchase-money, or which of the two takes the title. In any case, the one may pay the purchase-money, and the other take the title, without committing any fraud upon creditors, or giving to creditors any interest in the homestead. Monroe v. May, 9 Kas. 476, 477; Cipperly v. Rhodes, 53 Ill. 346; Orr v. Shraft, 22 Mich. 260, 263, 264; Dreutzer v. Bell, 11 Wis. 114; Pike v. Miles, 23 Wis. 164.
But it is claimed that said property never was such a homestead as is contemplated by the homestead-exemption laws of Kansas. (Const., art. 15, § 9; Gen. Stat. 473.) And ^ *s s0 °laimed because the property is neither farming land, nor situated within the limits of any incorporated town or city. Now we would think that no spot in Kansas could be found where a homestead might not be taken and held under the homestead-exemption laws, provided of course that the property might be owned and occupied as the private residence of private individuals — that even within the limits of an unincorporated town or village such a homestead might be so taken and held. But under the pleadings in this case we hardly think that this question was put in issue in the court below, and if not, then the question need not be decided in this court. Both the petition and the answer alleged that the property was situated in the town of Muscotah. The answer alleged that the said town of Muscotah was incorporated; and there was no pleading verified by affidavit denying said allegation of the answer. Therefore, under the statutes, and the pleadings, ^ mus^ taken as true that the said town of Muscotah was incorporated, and that the property claimed as a homestead in this case was subject to be held under the homestead-exemption laws .as a homestead. The statute provides that “allegations” “ of the existence of a corporation,” “shall be taken as true, unless the denial of the same be verified by the affidavit of the party, his agent or attorney.” (Gen. Stat. 650, § 108.) Now we think that the word “corporation,” as used in the statute, means municipal corporations, such as cities, towns, and villages, as well as private corporations. If we are correct in this, then the defendants’ property was situated in the incorporated town of Muscotah, and therefore the claim of the pláintiffs, that this property was and is situated in a place where no legal homestead, under the homestead-exemption laws, can be taken or held, must fail. But suppose the plaintiffs’ reply really did put in issue the allegation in the answer, that the said town of Muscotah was incorporated, still the court below made a general finding upon all the issues in the case in favor of the defendants, and against the plaintiffs.
But it is claimed that the defendants abandoned their homestead in October 1872. Now suppose they did: will that give to the plaintiffs any right to have the property subjected to the payment of their judgment? We think not. It must be remembered that the property belongs to Mrs. George; that it belonged to her both before and at the time when said iudgment was rendered: . _, _ _ _ J ® _ _ that it never did belong to George; and that the judgment was not rendered against Mrs. George, but was rendered against George alone. The property was purchased in 1869; the defendants made it their homestead in 1869; Mrs. George’s title thereto was completed on May 29th 1871, and said judgment was not rendered until June 15th 1871. After said judgment was rendered, but before the defendants removed from their homestead, to-wit, in May 1872, they placed on record the deed conveying the property to Mrs. George, thereby showing that they still intended that the property should belong to her, and not to her husband. The homestead right of the defendants was good before they got full and complete title. (Randall v. Elder, 12 Kas. 257; Tar- rant v. Swain, 15 Kas. 146; Moore v. Reeves, 15 Kas. 150.) It was good in 1869, when they first occupied the premises; and it certainly remained good up to October 1872, when they removed therefrom. Now suppose that at any time from 1869 up to October 1872 George had owned any interest in the property, still, he would, have had the power, with the consent of his wife, to have transferred that interest to any person whom he might have chosen, and with or without any consideration therefor, and no such creditor as the plaintiffs would have any right to complain. (See cases heretofore cited, and Morris v. Ward, 5 Kas. 239; Mitchell v. Skinner, 17 Kas. 565; Crummens v. Bennett, 68 N. C. 494; Vogler v. Montgomery, 54 Mo. 584; Sears v. Hanks, 14 Ohio St. 298; Wood v. Chambers, 20 Texas, 247, 254.) Such a transfer would have not been any fraud upon the rights of the plaintiffs. A debtor cannot commit a fraud • -i., t -t. . ’ „ . upon ms creditor by disposing: of property u toward which the eye of the creditor need never be turned.” Monroe v. May, 9 Kas. 476. A debtor in the disposition of his property can commit a fraud upon his creditor’only by disposing of such of his property as the creditor has a legal right to look to for his pay. Now if George ever had any interest in said property, he disposed of that interest long before he abandoned the property as his homestead, by having the absolute and unconditional title thereto placed in his wife’s name, and having the deed to her for the property recorded. There was no fraud in this; Dreutzer v. Bell, 11 Wis. 114; Pike v. Miles, 23 Wis. 164; Cipperly v. Rhodes, 53 Ill. 346.
But the defendants never did abandon their homestead. They only left it temporarily while in the service of the government in the Indian country, and they always have intended to return to to it, and still intend to return to it. Such a removal from the homestead, and such a soiourning elsewhere, does not destroyfthe home- ° , ° ' J stead right. McDowell v. Diefendorffy supreme court of Kansas, reported in Dassler’s Digest, page 92, § 23; Tomlinson v. Swinney, 22 Ark. 400; Moss v. Warner, 10 Cal. 296; Cipperly v. Rhodes, supra; Gouhenant v. Cockrell, 20 Texas, 96; Drury v. Bachelder, 11 Gray, 214; Lazell v. Lazell, 8 Allen, 575. And it makes no difference in such a case, that the owners lease the premises during their absence. Wetz v. Beard, 12 Ohio St. 431; Wiggins v. Chance, 54 Ill. 175; Campbell v. Adair, 45 Miss. 170; Shepherd v. Cassidy, 20 Texas, 24; Dulanty v. Pynchan, 6 Allen, 510; Locke v. Rowell, 47 N. H. 46.
The judgment of the court below will be affirmed.
Brewer, J., concurring.
Horton, C. J., not sitting, having been of counsel in the court below. | [
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The opinion of the court was delivered by
•Hobton, C. J.:
The certificate of the clerk of the district court appended to the record in this case is as follows:
“State oe Kansas, Chautauqua County, ss.:
I, Thomas N. King, clerk of the district court in and for said county, do hereby certify that the above and foregoing is a true and complete copy of the records and papers in my office in the case of E. R. Cutler against C. W. Moore, as fully and completely as the same were directed to be made out and certified by 8. P. Moore, attorney for said defendant.
In testimony whereof, I have hereunto set my hand and affixed my official seal on this 25th of November 1875.
[seal.] T. N. King, Clerk”
The questions discussed in the brief of counsel for plaintiff in error are, that the service made upon the said plaintiff in error in the court below was defective, and that the attachment-proceedings had in said court failed to describe the property attached. It does not appear from the record in this case, that a full and complete transcript of the case in the court below has been brought to this court; and as it does affirmatively appear that the counsel for the plaintiff in error has had certified to this court only such proceedings of the district court as he has thought to his interest to present, we cannot undertake to consider the alleged error submitted to -us. The certificate to the record is of such character as to forbid any review of the matters attempted. to be presented to us for our determination.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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'The opinion of the court was delivered by
Valentine, J.:
This is a strange case, and the proceedings therein are exceedingly tangled. It is claimed by defendants in error, who were plaintiffs below, that the action was intended to be brought under the act providing for contesting county-seat and other elections, (Laws of 1871, page 190, et seq.) Now this may be so; and, for the purpose of this case, we shall assume that it is so; but still, no such action as is provided for in that act was ever prosecuted to final judgment in this case. If, in fact, the plaintiffs below commenced this action under said act, (and whether they did or not, or whether they could do so, we do not now choose to decide,) then they evidently abandoned their original cause of action long before any trial was had in the case, and prosecuted a new supposed cause of action, by filing a new and supplemental petition, setting forth therein a new supposed cause of action, making new parties defendant, asking for other relief than that asked for in the original petition, and asking for such relief as they could not have obtained under said act for contesting elections; and they prosecuted this new supposed cause of action to final judgment, and obtained judgment on such new supposed cause of action, and on it alone. And all this was done over and against the objections and .exceptions of plaintiffs in error, defendants below. Said judgment, and the only judgment rendered in the case, reads as follows:
“Thereupon it is considered and adjudged by the court here, that the preliminary injunctions heretofore granted in this action be and the same are hereby made perpetual; and the board of county commissioners are forever enjoined and restrained from levying any tax fop the payment of any interest on said bonds, or the principal thereof; and the county clerk is forever enjoined and restrained from placing any such tax on the tax-roll of said county. And it appearing that the said William Hammon, director, died during the pendency of this action, and that the board of county commissioners and the county clerk are necessary but only nominal parties, having no pecuniary interest therein, it is therefore considered aqd adjudged that the plaintiff have and recover of and from the said defendants, Asa Beyer, as clerk, and John Ernst, as treasurer of said school district No. 31, Atchison county, their costs in this behalf expended. And the defendants here except to each and every such finding and conclusion, and the action and decision of the court herein.”
Now this is evidently not a judgment in a contested election case. Under the act for contesting elections the court has no power to restrain county commissioners, or any one else, from levying any tax. Neither has the court any power under said act to restrain the county clerk, or any one else, from placing any tax upon the tax-roll. Nor had the court any power or authority in this case to compel the defendants Beyer and Ernst to pay the costs of litigating the questions whether the county commissioners and the county clerk should be so restrained in this particular case. Besides, Beyer and Ernst were at this time merely private citizens, having no interest in this litigation different from that of any other citizen of said school district. They had held no office for nearly two years prior to the rendering of this judgment, and were not attempting to manage the affairs of said school district in any particular. W. S. Knight, one of the plaintiffs below, was director of said school district; William Lewis was treasurer, and J. M. Ketch, a son of one of the plaintiffs, was clerk; and all of these men were opposed to said election, and to everything that was done thereunder, or in pursuance thereof. There was no excuse therefore for compelling Beyer and Ernst to litigate these questions. Said Beyer and Ernst ceased to be members of said school board before said supplemental petition was filed; and said supplemental petition stated these facts, and other facts wholly outside of the original cause of action, and then asked for the- relief for which the plaintiffs below finally obtained said judgment. If, when Beyer and Ernst ceased to be members of said, school board, and ceased to have any interest in said litigation, the plaintiffs had stopped all further proceedings against them, except proceedings to determine who should pay the costs up to that time, it is possible (but this question we do not decide) that the plaintiffs might have obtained a judgment against Beyer and Ernst for the costs which accrued up to that time. But the plaintiffs did not choose to stop there, and have the question then determined who should pay the costs, but they filed a new and supplemental petition, setting forth new facts which could have no place in a cause of action under said statute, and concerning which facts the defendants Beyer and Ernst could have no possible interest different from that of .the other residents of the.district; and they chose to litigate the case upon these new facts, notwithstanding the continued protestations and objections of the defendants Beyer and Ernst. And they obtained the judgment they sought upon these new facts. But the judgment cannot be sustained under said act for contesting elections; and indeed, if we take no other facts than those alleged in the various petitions of the plaintiffs, and considering all these facts to be true, it cannot be sustained upon any other statute or law. Other facts are still wanting in order to make a good cause of action in favor of the plaintiffs and against any person. (Bridge Co. v. Wyandotte County, 10 Kas. 326; Hays v. Hill, 17 Kas. 360.) The judgment is erroneous in whole, and in part. It must therefore be reversed.
Brewer; J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Valentine, J.:
This case w;as commenced before a justice of the peace, and was appealed to the district court. In the district court the parties filed new pleadings, which are as follows:
[Court, and Title.) “The said plaintiff complains of the said defendants for that heretofore, to-wit, on the 1st day of January 1871 there existed a partnership composed of Henry Harris, James J. Davis, John M. Rees, Evan Williams and John .Williams, and called the ‘Kansas Coal Company;’ that said partnership continued to exist and do business until about the 31st of August 1873, when it dissolved; that on the 15th of January 1872, the said Kánsas Coal Company became and was indebted to said plaintiff for work and labor before that time done for said Kansas Coal Company, at their request; for money loaned to said company, at their request; for money laid out and expended by said plaintiff for said company, at their request; for goods, wares and merchandise before that time sold and delivered to said company by plaintiff, at their request; for balance due on account stated by said company to said plaintiff for boarding the hands of the said company, at their request — a more particular bill of which is hereto attached, herein referred to, and made a part hereof, and marked ‘A/ in all amounting to two hundred dollars; and the said company never paid said sum, or any part thereof, to plaintiff. Plaintiff further says, that on or about the 4th of September 1873, the said defendants entered into an agreement, for a good consideration, with the plaintiff and James J. Davis, (a copy of which agreement is not herein set forth for the reason that the original is in. the hands of defendants, uncontrolled by plaintiff, and plaintiff has no copy, and can procure none,) that said defendants were to pay off all the debts of the said Kansas Coal Company; and plaintiff says that the said Kansas Coal Company was then indebted to said plaintiff as aforesaid, and that by virtue of said agreement with said defendants the defendants are indebted to said plaintiff in the sum of $200, but refuse to pay. Wherefore plaintiff prays judgment against the defendants for the sum of two hundred dollars, and interest, and costs of suit.
“Sheldon & Thomson, Attorneys for Plaintiff”
Answer: — {Court, and Title.) “And now comes the said Joseph Drake and James Ramskill defendants, and for answer to the amended petition of said plaintiff John Williams herein say:
“I. For a first defense to the said amended petition, the defendants deny each and every material allegation therein contained.
“II. For a second defense, these defendants, Joseph Drake and James Ramskill, say, that on the 4th of September 1873 they did enter into an agreement in writing with the said J. J. Davis, and said plaintiff under the name of ‘John D. Williams,’ relative to the purchase of their interest in the Kansas Coal Company; and these defendants further say that said contract is not in terms as is alleged in said plaintiff’s amended petition; but that by the terms of said contract, they, these defendants, were to pay off all the claims, debts and demands now due or contracted to become due as against the share of the said J. J. Davis and John D. Williams, and that the share of the said John D. Williams in said Kansas Coal Company was only a one-fifth interest; and these defendants further say that the said John D. Williams by the terms of said contract assigned to these defendants all his right and interest in and to all money due the said Kansas Coal Company in which he had an interest; and the defendants further say, that by the terms of the said agreement the plaintiff assigned all his interest in and to all notes and book accounts in which the said John D. Williams has an interest; and the defendants further say, that the annexed instrument in writing marked exhibit ‘A’ is the original agreement refei'red to in plaintiff’s amended petition. Wherefore, the defendants say that they are not indebted to said plaintiff as alleged, and pray that they may have their costs herein in this behalf expended.
“Joseph Drake, James Ramskill,
“By their attorney, James Rogers.”
Exhibit “A.” — Know all men by these presents, that I, J. J. Davis and John D. Williams, of the county of Osage and the state of Kansas, this 4th of September 1873, sold and transferred unto James Ramskill and Joseph Dx-ake, of the same place, all our right, title and interest in and to a certain lease on the following described real estate, to-wit, the northwest quarter of section 25, township 15, range 14, in said county of Osage, being the premises now occupied and worked by the Kansas Coal Company, in said county and state. Said sale and transfer is in and for consideration of $1,800, to be paid as follows: on the signing of this contract, three hundred dollars; and on the 4th of March 1874, the further sum of five hundred dollars; and on the 4th of September 1874, the further sum of five hundred dollars, with interest on the last-mentioned sum at seven per cent, per annum from this date; and on the 4th of March 1875, the further sum of five hundred dollax’S, with interest at the rate of ten per cent, per annum from the date hereof. The said J. J. Davis and John D. Williams also, in consideration of the foregoing stipulation, hereby assign to the said James Ramskill and Joseph Drake all our right, title and interest in and to all the buildings on said premises, and all the mules, horses, and fixtures, and tools in and out of said coal mines, and all things whatsoever used in and out in the working of said mines.
“The said James Ramskill and Joseph Dx'ake are by the terms of this sale to pay all the claims, debts and demands now due or contracted to become due as against the share of the said J. J. Davis and John D. Williams; and the said Davis and Williams hereby assign to the said James Ram-skill and Joseph Drake all their right, title and interest in and to all money due the said Kansas Coal Company in which they the said Williams and Davis have an interest, together with their interest in all notes and book accounts in which they the said Williams and Davis have any interest by the' terms of this assignment. The said James Ramskill and Joseph Drake are to have and retain all money now due the said Kansas Coal Company, that is to say, that portion of said money, notes, accounts in which the said Williams and Davis have an interest, and the same is hereby transferred to the said Ramskill and Drake.
J. J. Davis, [l.s.]
September 4th, 1873. John D. Williams, [l.s.] .
Reply.— {Court, and Title.) “And now comes the said plaintiff, and denies each and every allegation of the defendants, except the making of the agreement in the petition and in the answer alleged. And for further reply, the plaintiff says he has duly performed all the conditions of the said agreement on his part to be performed, but that the defendants have wholly failed to perform the conditions of said agreement on their part to be performed.
Sheldon & Thomson, Att’ys for Plff.”
After the foregoing pleadings were filed, the defendants below moved for judgment thereon, which motion the court overruled, and the defendants excepted. A jury was then impanneled to try the cause. The plaintiff below then offered to introduce evidence to prove his alleged cause of action, but defendants objected thereto, on the ground that the petition did not state facts sufficient to constitute a cause of action. The court overruled the objection, and permitted the evidence to be introduced, and the defendants again excepted. The plaintiff then proved his cause of action substantially as it was alleged in his petition, except that he proved the contract between himself and the defendants to be precisely as the defendants alleged that it was in their answer. The defendants objected and excepted to much of the evidence that was in troduced on the trial, and this they did for various reasons. The court gave general instructions to the jury, to each of which the defendants excepted. The jury, upon the evidence and the instructions, found a verdict in favor of the plaintiff and against the defendants for $133. The defendants then moved the court for a new trial, upon various grounds, which motion the court overruled, and the defendants again excepted. The court rendered judgment in accordance with the verdict of the jury. The defendants now bring the case to this court, assigning various grounds for error, and ask for a reversal of the judgment of the court below.
We think said judgment should be reversed. The plaintiff cannot maintain such an action as he is endeavoring to maintain upon said contract, (mentioned in his petition, set out in full as exhibit “A” to the answer, admitted by the reply, and proved on the trial.) It appears from the pleadings and the evidence in the case that a copartnership existed under the name of the “ Kansas Coal Company.” The plaintiff was a member of that copartnership, or company. The company owed him $133. Afterward, and by the terms of said contract, he sold his interest in said company to Drake and Ramskill, the present defendants. His whole interest in the company consisted at that time of a one-fifth interest in the company, and a claim against the company for said $133. Whether he intended to sell to Drake and Ram-skill his whole interest, including said claim for said $133, is not however quite clear. That portion of the contract which would tend to show that he intended to sell his interest in said claim, along with his other interest in the company, reads as follows: “And the said Davis and Williams hereby assign to the said James Ramskill and Joseph Drake all their right, title and interest in and to all money,” etc., “ together with their interest in all notes and booh acoownts in which they the said Williams and Davis have an interest by the terms of this assignment,” etc. Now at this time, Williams and Davis each had a fifth interest in said company. Each in addition thereto had a claim against the company for money coming to them respectively. The claim of each was founded on a “book account,” and the claim of Williams was for said $133. Now if-the.plaintiff Williams assigned his said “book account” to Drake and Ramskill, of course he cannot recover in this action, or in any other action. But suppose that he did not so assign the same, (and probably he did not intend to do so, even if the terms of his contract might be so construed,) then can he recover in this action? We think not. His remedy, if he has any, would be a suit of equity against his former partners, -the other members of the “Kansas Coal Company,” for an accounting. In such suit, Drake and Ramskill, as assignees of his interest, would however be proper parties.
But the plaintiff claims that the defendants agreed in said contract to pay his said claim. Now the only thing in said contract upon which the plaintiff can found any such claim reads as follows: “The said James Ramskill and Joseph Drake are by the terms of this sale to pay all the claims, debts, and demands now due or contracted to become due as against the share of the said J. J. Davis and John D. Williams.” Now it will be seen that the defendants did not agree to pay the plaintiff’s claim, but they agreed only to pay such claims as might come against the plaintiff’s share. There is nothing in the record that tends to show that the defendants ever knew that the plaintiff ever had any such claim until long after said contract was made. But as the defendants agreed to pay all claims against the plaintiff’s share, it will be necessary to consider whether the plaintiff had any claim against his own share. Could he have sued himself? Had he any cause of action against himself? Was he himself liable for what the company owed him? All these questions must certainly be answered in the negative. The plaintiff certainly had no claim against himself. He could have sued the other members of the company for an accounting and settlement, but he could not have sued himself. And even when his claim should at any time be paid out of the common property of the company, the plaintiff could not, in any sense, be considered as paying more than one-fifth of his own claim, for he would have only a one-fifth interest in said property. And he could not in any event have an execution against himself, or against his own individual property for the payment of his own claim. He would have no action at law against himself, or against any other person or persons, in which such an execution could be issued. His only remedy would be in equity. And after exhausting his remedy in equity against the property of the firm, and against the individual property of his copartners, his remedy would cease. But the court below ruled differently. Although this is purely an action at law, and although the plaintiff could not in any sense even in equity be considered as responsible for the payment of more than one-fifth of his own claim, yet the court below rendered a judgment at law against the defendants and in favor of the plaintiff for the whole amount of the plaintiff’s, claim. This was clearly erroneous. If the plaintiff in any sense sold a liability againstv himself so as to make his vendees liable therefor, the-liability could not under any view of the case have been for more than one-fifth of the amount for which said judgment was rendered.
The judgment will be reversed, and cause remanded for further proceedings in accordance with this opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Plaintiffs commenced an action against defendant Lucas, on notes and an account, and caused an attachment to be issued and levied on property alleged to be his. Before prosecuting such action to judgment they commenced this action to set aside, as fraudulent and void as against creditors, an assignment made by defendant Lucas and wife, to their co-defendant Battey, of all their property, including the property taken on the attachment. A demurrer to the petition filed in this action was sustained, and the case is here for review.
The principal question is, whether the plaintiffs, by the mere suing out of an attachment, and causing it to be levied upon the property conveyed by the assignment, and before the fact that they are creditors has been established by a judgment, have acquired the right to litigate the validity of the assignment. Upon this question elaborate briefs have been filed by counsel on both sides, and authorities cited and commented on from nearly every state in the union. The case has been before us for some time, and we have examined carefully the principal authorities cited by either counsel. On the mere matter of authorities, a decision well fortified could be rendered either way. In Drake on Attachments, §225, we find this summary of the question:
“In connection with the lien acquired by an attaching-creditor, has come up in different forms the question of his right to secure the benefit of his lien, as against fraudulent conveyances of and incumbrances upon the attached property. The first shape this question assumed, was as to the right of the attaching-creditor to maintain a creditor’s bill in equity to set aside such a conveyance or incumbrance. The doctrine that a creditor at large, before he obtains judgment, is not entitled to such a remedy, is familiar to the legal mind. ‘ The reason of the rule,’ said Chancellor Kent, ‘seems to be, that until the creditor has established his title he has no right to interfere, and it would lead to an unnecessary and perhaps fruitless and oppressive interruption to the exercise of the debtor’s rights. Unless he has a certain claim upon the property of the debtor, he has no concern with his frauds.’ Such doubtless is the general rule. * * * In different states the attempt has been made to establish another exception in favor of attaching-creditors. In New York, a bill in favor of such a creditor was once sustained by the court of chancery; but this was contrary to the uniform course of decision in that state, before and since. In Illinois, and Missouri, the right 'to maintain such a bill was denied. On the other hand, New Hampshire and New Jersey have held that an attachment confers a lien, in virtue of which the bill may be maintained. In New York, too, it was decided that an attaching-creditor is not, before he obtains judgment, entitled to impeach the bona fides of a judgment confessed by a debtor to a third person before the attachment was levied.”
A question, upon which courts have ruled so differently, cannot be perfectly plain and easy of settlement. Many considerations of weight can be urged on either side, and it is not easy for either to answer fully the arguments of the other. For a full review of the authorities and arguments, we refer to the briefs of counsel, and shall content ourselves with a statement of that which has influenced our decision. While an attachment is doubtless a specific lien,, it is a lien of very uncertain tenure. It is subject to defeat by the dissolution of the attachment, on motion, or a judgment in favor of the defendants on the merits of the claim. The grounds for attachment given by our statute, are many. Some of them imply no wrong on the part of the defendant. Suits in attachment are common. Motions to dissolve come, in almost every case; and the experience of every practitioner will testify that a large per cent, of the attachments issued and levied finally fail. Attachment-liens do not, with us, as in some states, require a judicial order for their creation. The mere affidavit of the creditor is sufficient, and that affidavit too, alleging only in general terms the existence of one of the statutory grounds for attachment. Hence, while it is a specific lien, it is a lien for a very uncertain claim.
Again, it would seem that no advantage would inure to the creditor, except in the mere matter of time, by sustaining such an action before the attachment and the claim are established by final judgment. So far as the creditor’s security is concerned, .the seizure by the officer preserves the lien as against all changes and transfers, and everything that the debtor or his assignee could do subsequent thereto. Except as to perishable property, and property whose keeping is expensive, no sale can be ordered until after the judgment; and for such property it would be of no advantage to sustain an action like this. Perishable property and property whose keeping is expensive, demands an immediate sale; and no action can be immediately forced to trial and judgment.
Still again, it would seem that often the time and attention of the court would be occupied with useless litigation. At any time before judgment the defendant may move to vacate and dissolve the attachment, inquiring, if need be, into the truth of the grounds alleged therefor. The judgment on the trial may be for the defendant, and that will end the attachment-lien. And whenever the attachment ceases, the suit brought to set aside any alleged fraudulent conveyance or incumbrance of the defendant fails also, and the whole time and labor of the court given thereto will be wasted time and labor. Why should a court be subjected to this ?
Is not the language above quoted from Chancellor Kent, most apt ? Ought not a party to have a certain claim upon the property of the defendant before he attempts to inquire into the bona fides of the defendant’s transactions, and invokes the processes of the law, and appropriates the time and labor of courts in the prosecution of such inquiry? and can a party who has simply asserted a claim, (and that is all an attachment amounts to, the mere assertion by the plaintiff of a claim,) be said in any just sense to have a certain claim upon the defendant’s property? We of course concede the right of the officer .to defend the possession of the attached property, and in such a proceeding doubtless the bona fides of the defendant’s acts may oftentimes be inquired into; but it does not seem to follow that, because the officer may defend his possession, the plaintiff may prosecute an independent action, not to preserve the possession, but to clear up the title. Until his claim has become certain, he has no right to inquire into the title. Possession must be^preserved, to preserve the attachment-lien. But nothing more is necessary until the claim has been made certain. As counsel for defendant well say, (we quote from their brief,) “the plaintiff’s lien can be of no avail to them unless they obtain judgment. Their right to enforce the lien is derived from thé judgment, and yet the judgment might not be available if the lien of the attachment was lost before the recovery. Therefore in order to preserve their lien as a security for the satisfaction of any judgment they may recover, they have the right to defend that lien against third parties claiming the goods, and in that defense they have the right to show any fact that will defeat the claimant’s title. If this were not so they might, though their claim against the debtor be never so meritorious, be compelled to relinquish their security to one claiming under a title fraudulent as to them. .But there can be no reason nor necessity for them, in order to maintain their lien, to institute independent actions against third parties who may have some kind of a claim on the property, yet who cannot (and are not attempting to) dispossess the plaintiff. The only right the plaintiffs have under the attachment is, to use such measures as may be necessary to preserve this security until they can reduce their claim to judgment. They have no right to harass other parties with litigation that may prove fruitless, in trying to remove obstructions to the sale of the property, until they have first obtained the right to have a sale of the property made. When that right has been definitely settled, their lien having been preserved intact, they can then commence actions to remove obstructions in the way of their execution. But until this is done, they have no right to interfere with the claims of third parties. There can be no reason nor necessity for such a proceeding.”
The judgment will be affirmed.
Valentine, J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Valentine, J.:
The only question involved in this case is, whether section 7 of the act of 1874, relating to roads and highways, so repeals or modifies section 30 of the act of 1868 relating to counties and county officers that no appeal can be taken under said section 30 in any case where an appeal might be taken under said section 7. Said section 30 reads as follows:
“Sec. 30. Any person who shall be aggrieved by any decision of the board of commissioners, may appeal from the decision of such board, to the district court of the same county, by causing a written notice of such appeal to be served on the clerk of such board, within thirty days after the making of such decision, and executing a bond to such county, with sufficient security, to be approved by the clerk of said board, conditioned for the faithful prosecution of such appeal, and the payment of all costs that shall be adjudged against the appellant.” (Gen. Stat. 260.)
That portion of said section - 7 which applies to this question reads as follows:
“Sec. 7. * * * All allowances for damages, as provided in this act, shall be subject to revision by the said board of county commissioners, and any person feeling himself aggrieved by the award of damages made by the board of county commissioners, may appeal from the decision of the said board of county commissioners to the district court upon the same terms, in the same manner, and with like effect as in appeals from judgments of justices of the peace in civil cases.” (Laws of 1874, p. 168.)
The statute prescribing how appeals shall be taken from judgments of justices of the peace in civil cases provides as follows:
“Sec. 121. The party appealing shall within ten days from the rendition of the judgment, enter into an undertaktaking to the adverse party, with at least one good and sufficient surety, to be approved- by such justice, in a sum not less than fifty dollars in any case, nor less than double the .amount of the judgment and costs, conditioned, first, that the appellant will prosecute his appeal to effect, and without unnecessary delay; second, that if judgment be rendered against him on the appeal, he will satisfy such judgment and-costs. Such undertaking need not be signed by the appellant.” (Gen. Stat. 800.)
“Sec. 122. The appeal shall be complete upon filing and approval of the undertaking as provided in section 121. The said justice shall immediately make out a certified transcript of his proceedings in the cause, and shall, within twenty days from the rendition of the judgment, deliver or transmit to the clerk of the district court of his county the said transcript, the undertaking on appeal, and all the papers in the cause. All further proceedings before the justice of the peace in the case shall cease and be stayed on the filing of the undertaking with said justice. No notice of appeal shall be required to be filed or served; and the case shall be tried de novo in the district court upon the original papers on which the cause was tried before the justice, unless the appellate court, in furtherance of justice, allow amended pleadings to be made, or new pleadings to be filed.” (Laws of 1870, page 184, §7, amending §122 of the justices act.)
Before proceeding further we would say, that there is nothing to be found in any statute that in terms repeals or modifies any of the provisions of said section 30 of the act relating to counties and county officers. And the act of 1874, relating to roads and highways, does not contain that general clause, often found in statutes, repealing “all acts and parts of acts inconsistent therewith.” The only question then is, simply, whether said section 7 of the act relating to roads and highways, does, of itself, and solely by implication, so repeal said section 30 that no appeal from an award of damages in a road case can be taken thereunder. Now before it can be held that said section 7 repeals said section 30, it must be held that there is an irreconcilable conflict between the two sections, or that one was unquestionably intended to take the place of the other, and be a substitute therefor, or that one includes the other, and that by giving the one having the most extended scope and operation full force and effect it would virtually render the other superfluous and nugatory. (See Sedgwick Const. &Stat. Construction, 2d ed. 97, et seq., and Pomeroy’s Notes, and cases there cited; Potter’s Dwarries Stat. & Const. 154, et seq,, and cases there cited.) Now it cannot be said that there is any conflict between said sections. Each may have force and operation. Neither purports to be exclusive. Neither purports to take the place of the other; and neither includes the other. Each simply permits an appeal to be taken, and each provides for a different mode of taking the appeal. They simply give cumulative, and not inconsistent modes for taking an appeal. (Sedgwick Stat. & Const. 100, et seq.; Pomeroy’s Notes, and cases there cited.) Section 30 provides that “any person who shall be aggrieved by any deoision of the board of commissioners may appeal from the decision of such board” in one way, while section 7 simply provides that “any person feeling himself aggrieved by the award of damages made by the board of county commissioners may appeal from the decision of the said board of county commissioners” in still another and an additional way. Both sections prescribe a mode for taking the appeal, but neither section provides that the mode it prescribes shall be the only mode. They each leave the appellant to exercise his option as to what mode he will adopt in taking his appeal. If he appeals under section 7, he must appeal in ten days, and must give a bond in a sum not less than fifty dollars; but in such a case he is relieved from serving any written notice on the county clerk. If however he appeals under section 30, he may do so in thirty days, and may give a bond in a sum less than fifty dollars, provided that such sum is sufficient, but in such a case he must always serve said written notice on the county clerk. These are the principal- differences between these two modes of appeal. Both are proper, and both may be held to be in force.
The decision of the court below dismissing said appeal will therefore be reversed, and cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On the 7th of. December 1874, J. W. Lees, the defendant in error, filed his bill of particulars against Haas & Co. before George W. Reece, a justice of the peace of Marshall county. On the same day a summons was issued to a deputy constable of Blue Rapids township in said county, commanding him to summon Haas & Co. to appear, etc., on the 14th of December 1874, etc., which was returned thus:
“Received .this writ this 8th day of December 1874; served by delivering a copy with the indorsements thereon, duly certified thereto, to the within-named-Haas, December 8th 1874. Delos Fokdham, Dept. Constable.”
On the return day, 14th of December, Mudgett & Smith, attorneys-at-law, appeared specially only for defendants, and filed a motion to dismiss the action for reasons therein stated. This motion was overruled, and without further service upon or appearance by Meyer B. Haas and Hartog B. Haas, judgment was rendered against them on said 14th of December, for $146, and costs. Two or three days after said trial, Messrs. Mudgett & Smith, attorneys for Haas & Co., prepared an appeal-bond and “had it properly signed by the surety, and inclosed and addressed to George W. Reece, justice of the peace, at Irving, Kansas,” the justice before whom the case was tried. Two or three days after rendering said judgment, said Reece removed from Marshall county, and from the state, and his docket came into the possession of J. P. Turner, as justice of the peace, on the 20th of said December, under the provisions, of §191 of the justices act. On the 24th of December said Turner received the letter sent by Mudgett & Smith, as above stated, inclosing the bond directed to said Reece, justice of the peace, out of the post-office, opened it, saw the appeal bond, but did not approve it, but sent it back by mail the same day to Mudgett & Smith. The surety had in the meantime left the county temporarily, and the affidavit of justification by the surety was not sworn to till 6th January 1875. But the affidavit of surety was appended to the appeal-bond, and the bond returned into court with the affidavit of said surety attached thereto. The transcript of the justice’s docket was filed (as were all the papers in the case) in the office of the clerk of the district court of Marshall county, on the 29th of January 1875. Turner, as justice of the peace, received the bond back again from Mudgett & Smith in three or four weeks after it was returned to them on December 24th. In May following, said Turner indorsed the appeal-bond as follows: “ Approved by me this S//,th day of December 1874. — J— N. Turner, Justice of the Peace.” And he also wrote on the back of the bond the following: “Lees vs. Haas & Co.—Defendants’ appeal-bond.—Filed, Dec. 24th 1874.—J. P. Turner, J. P.”
On the 25th of August 1875, the defendant in error filed a motion to dismiss the appeal in the case, for the following reasons:
“ 1st, Because there was no appeal-bond approved in this case within ten days from the rendition of the judgment in the court below.
“ 2d, Because there is no appeal-bond in this case ever executed and approved as required by law.
“3d, Because the appeal 'was not perfected as required by law, in this, to-wit, that the papers were not transmitted to this court within twenty days from the rendition of the judgment.
“4th, Because the transcript and an undertaking in appeal, and all the papers in this cause, were not transmitted to this court within twenty days from the rendition of the judgment.
“Affidavits will be used to support the motion.”
This motion was sustained, and the appeal dismissed, and judgment rendered against the plaintiffs in error for costs. To this decision and judgment, exceptions were properly taken; and the plaintiffs in error claim, that the judgment was improperly rendered against them in the justices court, because there was neither service of summons upon, nor general appearance by, either of the defendants in that court; and that the appeal was improperly dismissed in the district court.
As to the first objection, to the order and judgment of the district court, the plaintiffs in error are in no condition to take any advantage of any defective service in the proceedings before the justice of the peace, (if any there was, which we do not decide,) for by their appeal they are estopped from denying service of summons. Any defect existing in the service of process is thereby waived. The action of the plaintiffs in error, in presenting and having a bond of appeal filed and approved, is a submission in itself to the jurisdiction of the court; and they cannot now be permitted on error to allege a want of jurisdiction. Fee v. Big Sandy Co., 13 Ohio St. 563.
The second objection is well taken, as the court below erred in dismissing the appeal on the motion filed by defendant in error. The bond was received by Turner, the justice of the peace, within due time; and although he returned it to the attorneys of the plaintiffs in error at once, to have the surety justify, yet he received it back again, and before it was filed in the district, and long before the’ motion to dismiss was made, he filed and approved the bond, ^s of the date it was originally received, and that date was within ten days from the rendition of the judgment. Under these circumstances, the appeal bond is held to have been filed in time, as shown by the records of the justice, and the indorsements on the bond itself. In this connection the question is suggested, whether the justice, who filed and approved the appeal-bond subsequent to the date of its reception by him, as of the time it was first received, can be permitted in a direct proceeding to contradict his official acts, as to the time such indorsements were made, by his own testimony to. the court ? We need not decide this interrogatory now. The bond stands as if filed and approved when first received by the justice, and thereby the appeal was perfected within time.. Before the court conyened, or the hearing of the motion to dismiss, all the papers in the case were duly filed with the clerk, and hence the failure of the justice to transmit the papers to the district court at an earlier date, furnished no good reason for any dismissal of the cause. Appeals are favored, and mere technical defects or omissions are to be disregarded, as far as possible, without obstructing the course of justice.
The order and judgment of the district court are reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This case is badly mixed. Just what kind of action or actions the plaintiff intended to bring, we can hardly tell. But even if that problem were satisfactorily solved, still the case would not then be relieved from all difficulty. There are some inherent complications and intricacies equally difficult, of solution. The petition below i& drawn up in form as though it was intended to state only one cause of action; and yet the petition asks for several different kinds of relief, and such as are usually granted only in different kinds of action. It in substance asks that the plaintiff shall recover the undivided-half of certain real property of which he is not now in possession; that a certain tax deed on said real property be set aside and held for naught; that a certain supposed cloud upon the plaintiff’s title be removed;. that certain rents and profits received by the several defendants for the use of said property be accounted for by each of the defendants, respectively; that the said real property be partitioned, and one-half thereof given to the plaintiff in . severalty, “and that each of the defendants, their heirs and assigns, be barred from setting up any claim to, interest or estate in, or title to, or lien upon the same.” Now whatever this action or any part thereof may be called, still it is all • brought or intended to be brought under the code of civil procedure; and therefore under such code we suppose that “the court, in every stage of- action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect:” (Gen. Stat; 655, §140.) “And all proceedings under it, (said code,) shall be liberally construed, with a view to promote its object, and to assist the parties in obtaining justice.” (Gen. Stat. 631.) Said petition was not attacked in the court below in any manner except by demurrer. No motion was made to require that it be made more definite and certain; or that the several causes of action therein stated, be separately stated and numbered; or that any portion thereof be stricken out for immateriality, irrelevancy, or redundancy; and indeed, no motion was made attacking the petition in any manner whatever. The demurrer attacked the petition on the grounds, first, that several causes of action were improperly joined; second, that the petition did not state facts sufficient to constitute a cause of action. This demurrer was overruled by the court below, and this is one of the rulings now complained of by the defendants below, who are plaintiffs in error in this court. Whether the court below erred or not, in this ruling, is the principal question involved in this case, and we may as well consider the question now, and before passing to the other questions.
I. The principal question involved in this case is, whether there were in fact several causes of action improperly joined. If no cause of action was in fact stated in the petition, as the defendants below claim by the second ground of their demurrer, then of course several causes of action were not improp erly joined. But supposing that there was a cause of action stated in the petition, and more than one: then were there several causes of action improperly joined ? The question is not, whether the several causes of action actually stated in the petition were stated therein in an improper manner; for such a question cannot be raised on demurrer. But the real question is, whether the several causes of action actually stated in the petition can all be joined or united in one action. The petition in substance and effect, though not in these words, states we think about as follows: First, The plaintiff below, Albert G. Smith, is the owner and entitled to the immediate possession of the undivided-half of the west 55 feet of lots 8 and 9, in block 12, of the city of Atchison; but he is not in the possession thereof, and has not been in the possession thereof for several years; nor has he received any of the rents or profits thereof for several years. Second, George Scarborough, one of the defendants below, is the owner of the other undivided-half of said real property, (he having received his title thereto, by a deed for said undivided-half of said property from Thomas A. and Wm. L. Irvine, who were formerly tenants in common with the plaintiff. Scarborough was formerly in possession of said property, and received the entire rents and profits therefrom for several years, and has refused and still refuses to account to the plaintiff therefor, or for any part or portion thereof. But whether Scarborough is still in the possession of said real property, or of any part or portion thereof, is not very clear. If he is not in possession of any part or portion thereof, then Auld and Stebbins, the other defendants, are in the actual possession of the whole of it. Third, Auld and Stebbins are in the possession of at least an undivided-half of said property, and unless Scarborough is in possession of the other half they are in the actual possession of the whole of it; and they have been receiving the rents and profits thereof for several years, but they refuse to account to the plaintiff for any part or portion thereof. They hold said property under a quitclaim deed from Wm. L. Irvine to themselves, and a tax deed from the county clerk of Atchison county to Wm. L. Irvine. Said quitclaim deed was executed subsequently, and said tax deed prior, to the execution of said deed for the undivided-half of said property from Thomas A. and Wm. L. Irvine to Scarborough. Said tax deed is void on its face, for reasons stated in the petition. Thomas A. and Wm. L. Irvine, the plaintiff’s former co-tenants, are not parties to this action, but it would seem from the petition that even' they had, long prior to their transferring any interest to Scarborough, ousted the plaintiff from the said premises, and thereafter received all the rents and profits therefrom, and have ever since refused to account to the plaintiff for any part or portion thereof, and Wm. L. Irvine (one of the plaintiff’s co-tenants) took a tax deed to himself for the whole of said premises. The plaintiff closes his petition by asking for the relief heretofore stated.
We suppose the plaintiff sets forth in his petition three causes of action: first, an action in the nature of ejectment, under section 595 of the civil code, for the recovery of his undivided-half interest in said real property; second, an action to recover the value of his portion of the rents and profits of said real property; (see Gen. Stat. p. 541, §22, p.646, §83, sub. 6;) and third, and an action for partition of said real property; (see Gen. Stat. 753 to 755, §§614 to 629.) We do not think that the plaintiff sets forth a cause of action to quiet title or possess|ou^ or remove a cloud therefrom, for he does not show that he is in the possession of the property either actually or constructively — a necessary element in that kind of actions; but he does show that others are in the actual possession of the property, denying his right and title to the property, and enjoying the proceeds thereof. By the plaintiff’s action of ejectment however, he can virtually quiet his title and possession, and remove said .supposed cloud from his title, and have said tax deed declared void, provided that he recovers in the action; for such an action, where the plaintiff recovers, settles all questions between the plaintiff and defendant with respect to the property. The said causes of action for ejectment and for partition may virtually and in fact be only one cause of action. The plaintiff has a right in law to possess and enjoy some specific portion of said real property, and the defendants deprive him of this right. This would seem to constitute the elements of only one cause of action; and yet this includes both the causes of action, for ejectment, and for partition. That both of these causes of action in fact constitute only one enlarged cause of action, may be the view that the supreme court of Ohio took in the case of Tabler v. Wiseman, 2 Ohio St. 208, 211. In that case the court decided that, “In Ohio, a right of entry will entitle a party to the proceeding in partition, without the actual seisin required in some other states. If the tenant is not prevented by some intervening estate, from recovering the possession by an action at law, he will not be disabled to prosecute his writ of partition.” Now if the two causes of action for ejectment and partition, when united, constitute only one enlarged cause of action, then it is entirely unnecessary to inquire in this case what causes of action may be united, or to inquire whether the cause of action for rents and profits may be united with this enlarged cause of action; for on the final determination of this action, in the court below, nothing was allowed the plaintiff for rents and profits. We shall however suppose, for the purposes of this action, that the two causes of action, for ejectment, and for partition, are two separate causes of action. Then can these two causes of action be united in one action? And can they both be united with another cause of action for rents and profits taken from the same real property? That the cause of action for ejectment, and that for rents and profits, may be united in the same action, there can be no question. Section 83 of the code provides, that —
“The plaintiff may unite several causes of action in the same petition, whether they be such as have heretofore been denominated legal, or equitable, or both, where they all arise out of either one of the following classes: * * * Sixth, Claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same.” (Gen. Stat. 645, 646.)
The question however still remains, as to whether the cause of action for partition may be united with the other two causes of action. This depends upon another provision of said section 83 of the code. Said section provides, that—
“The plaintiff may unite several causes of action in the same petition, whether they be such as have heretofore been denominated legal, or equitable, or both, where they all 'arise out of either one of the following classes: First, The same transaction, or transactions connected with the same subject of action.”
Now whether these three causes of action may all be united in one action, or rather whether the cause of action for partition may be united with the other two causes of action, depends upon the meaning of the words, “causes of action,” “arise out of,” “transactions,” “connected with,” and “subiect of action.” We shall not attempt to define these, words any further than is necessary to apply them to this case. Now in this case we have three causes of action: First, for ejectment — the elements of which are as follows: the plaintiff has a right to the possession and enjoyment of said real property in common with his co-tenant or co-tenants — he one-half, and his co-tenant or co-tenants the other half — but the defendants deprive him of that right. Second, for rents and profits — the elements of which are as follows: the plaintiff has a right to the use and enjoyment of one-half of the rents and profits of said real property, but the defendants deprive him of that right. Third, for partition — the elements of which are as follows: the plaintiff has a right to the use and enjoyment, if he prefers it, to some specific moiety of said real property, the same to be set off to him in severalty, but the defendants deny and resist such right. These three causes of action are in fact all founded upon, or, in other words, “arise out of,” three classes of infringements upon one single right of the plaintiff. These infringements are the “ transactions ” out of which the plaintiff’s several causes of action arise, and are just such “transactions” as are contemplated in said section 83 of the code; and they consist merely of the acts of the defendants in contravention of the said right of the plaintiff. The word “transactions,” as used in said section, probably means, whatever may be done by one person which affects another’s rights, and out of which a cause of action may arise. Said single right of the plaintiff in this action, consists in his right to use and enjoy, in the manner he chooses, his said interest in said real property, with all the proceeds and avails thereof. This right is the “subject of action” in this case. It is the basis and foundation of the whole action. Each of the several causes of action depends entirely for its support upon the soundness and validity of this right; and, unless such right can be maintained, this whole action must fail. The phrase, “subject of action,” would probably ordinarily have a broader signification than we have given it. It would probably ordinarily mean, as to each cause of action, the entire “subject-matter of the action.” But for the purposes of uniting various causes of action it cannot have a broader signification than we have given it. , Of course, it does not include the several “transactions” “connected with” it, and out of which the several causes of action arise; for the “subject of action” (the “same” subject of action) must be common to all the several causes of action which are united, while the several “transactions” cannot be thus common. Each transaction or class of transactions must ordinarily belong to a different cause of action. And of course, the “subject of action” is not the “cause of action,” or the cause of any action, or any cause of action. It is simply one of the elements of each of the several causes of action, uniting and binding them together in one action. The legislature did not commit the folly of enacting, that several “causes of action” may be united when they all arise out of transactions connected with the same “cause of action.” But they enacted, that several “causes of action” may be united when they all arise out of transactions connected with the same “subject of action.” Neither can the “subject of action” be the “object of the action.” The “subject of action” must exist prior to the creation of the causes of action which, are to be united; for the causes of action are such as “arise out of” transactions “connected with” the “subject of action.” But the “object of the action” is only brought into existence by the commencement of the action itself, long after both the “subject,of action” and the “causes of action” have had an existence. The “object of the action” is the thing sought to be attained by the action. It is the remedy demanded, the relief prayed for, and is no part of the “subject of action,” or the “cause of action.” The “subject of action,” then, not being the whole of the “subject-matter of the action,” nor the “cause of action,” nor the “object of the action,” we think it is just what we have heretofore stated it to be. It is in this case, the original right of the plaintiff to enjoy his said property as he pleases. Now this right being the “subject of action,” and the various infringements upon this right being the “transactions” out of which the plaintiff’s several “causes of action” arose, it is clear that all of said “ transactions ” are “ connected with the same subject of action;” and therefore, that all of the said several causes of action may be united in one action. This view of the law is also in accordance with the general policy of the code, which seems to be to have the whole subject-matter of any controversy settled in one action. (See Page v. Webster, 8 Mich. 273.) We would also refer to the following sections of the code as throwing some light upon the question now under consideration:
“ Sec. 36. Any person may be made a defendant, who has, or claims, an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.” .
“Sec. 41. The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a determination of the controversy cannot be had without the presence of others, the court must order them to be brought in.” •
“Sec. 616. .Creditors having a specific or general lien upon all or any portion of the property, [in an action for partition,] may be made parties.”
“Sec. 617. The answers' of the defendants [in an action for partition] must state, among other things, the amount and nature of their respective interests. They may also deny the interests of any of the plaintiffs, or any of the defendants.”
“Sec. 629. The court shall have full power [in an action for partition] to make any order, not inconsistent with the provisions of this article, [relating to partition,] that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests.”
II. Does the petition state facts sufficient to constitute a cause of action for partition? It may be said, that, admitting that all the several causes of action set forth in the plaintiff’s petition may be properly joined in one action, and that all the persons made parties to this action may properly be made parties thereto, still, can a plaintiff in partition, who is not in possession of the property sought to be divided, maintain the action? (This question does not properly arise here; but as it is in the case we shall consider it now.) Whether ‘such action can be maintained, we think depends upon whether the plaintiff is entitled to the immediate possession of the property, or not, and whether his petition shows that he is so entitled to such immediate possession. If the plaintiff is entitled to the immediate possession of the property, we think he may maintain the action. (Tabler v. Wiseman, 2 Ohio St. 208, 211.) If the property were not held adversely to the plaintiff, we would think that there could scarcely be any doubt as to the plaintiff’s right to maintain the action. But even where the property is held adversely to the plaintiff, we would still think that the plaintiff might maintain the action in connection with an action for the recovery of the property. And possibly both actions taken together, as heretofore suggested, are only one enlarged action, and that an action for partition. Our code of civil procedure authorizes the action for partition, but does not prescribe specifically who shall bring the action, or what kind of an estate or interest in the land the plaintiff shall have. It seems to leave the matter open for any person who has any interest in land in which others also have an interest, to commence the action. Up to 1868 the statute read, “that all joint tenants, tenants in common, and coparceners of any estate in lands, tenements, and hereditaments, within this state, may be compelled to make or suffer partition of such estate.” (Comp. Laws, 740, §1.) But in 1868 this provision was repealed, and in lieu thereof it was enacted, that “when the object of the action is to effect a partition of real property, the petition must describe the property, and the respective interests of the owners thereof, if known.” (Gen. Stat. 753, § 614.) Now the words, “real property,” as used in our statutes, “include lands, tenements, and hereditaments, and all rights theréto and interest therein, equitable as well as legal.” (Gen. Stat. 999, §1, sub. 8.) Under our statutes the action of partition is legal as well as equitable, and the action of ejectment is equitable as well as legal. (As to ejectment being an equitable as well as legal action in this state, see Simpson v. Boring, 16 Kas. 248, 251.) The same court has jurisdiction of both actions, and the.two actions may be united in the same proceeding, as we' have heretofore seen. Therefore, whatever may have been 'the reason at one time for refusing to partition land where the plaintiff was not in the possession thereof, no such reason now exists; and when the reason for any particular rule ceases, so does the rule itself cease. This disposes of the material question in the case, and it is unnecessary to consider any of the other questions suggested by counsel.
The judgment of the court below will be affirmed.
Brewer, J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Horton, C. J.:
From the findings of fact in this case, it appears that the defendant Williams bought of one H. E. Cowgill a number of cattle, for the sum of $1,749; that at the time the consideration was being paid, Cowgill requested Williams to retain $506 of the money to pay to B. C. McQuesten on a note of that amount due to McQuesten from Cowgill, < and Williams verbally promised Cowgill to pay McQuesten said sum. Shortly afterward, Morris Center, Henry Center, and Joshua Hodge severally recovered judgments against Cowgill before a justice of the peace, and caused proper proceedings to be instituted whereby the said sum of $506 was duly garnisheed in the hands of Williams as the money of Cowgill; and therefore liable to be appropriated to pay such judgments. After all these proceedings, McQuesten brought suit against Williams to recover the said $506; and to this action said plaintiffs in error were also made parties defendant. The court below held that McQuesten had the' right to maintain his action on the special promise of Williams to Cowgill, and treating the money in Williams^ hands as due to McQuesten, gave judgment in favor of McQuesten, and ordered the said $506 (which had been deposited in court) to be paid to McQuesten, thereby denying the claims of said plaintiffs in error to any part of said sum by virtue of their several judgments against Cowgill, and their garnishment of Williams. It does not appear from the record, that McQuesten had.any knowledge of the promise of Williams to Cowgill prior to the garnishee proceedings, or that he was privy to the agreement.
The judgment of the court below was erroneous, but not on the principle contended for by the counsel for plaintiffs in error. It is urged by them, that the promise of Williams to Cowgill to pay the debt of Cowgill, was a special promise to answer for the debt of another person, and not being in writing, signed by the party to be charged, was within the statute of frauds. (Sec. 6, ch. 43, Gen. Stat. 505.) The case is not within such statute. It is well settled, that a promise to a debtor (as in this case) to pay his debt to a third person, is not a promise to answer for the debt of another within the statute. The statute applies only to promises made to the creditor. (Eastwood v. Kenyon, 11 Ad. & El. 445; Howard v. Coshow, 33 Mo. 118; Shelton v. Brewster, 8 Johns. 376.) For a full discussion of this question, and for a citation of further authorities, see Throop on Verbal Agreements, chapters 11 and 13, vol. 1, 390, 453. Neither is it true that an action cannot be maintained upon a verbal promise made by a defendant, upon a valid consideration, tq a third party for the benefit of a plaintiff, although the plaintiff was not privy to the consideration. Anthony v. Herman, 14 Kas. 494; Harrison v. Simpson, 17 Kas. 508.. But while it is true, that the promise to Cowgill by Williams is to be deemed made to McQuesten, if adopted by him, though he was not a. party, nor cognizant of it when made, yet such adoption to be effectual must have been made before the rights of other parties had intervened. McQuesten, by assenting to the promise or agreement of Williams, stands in no better position than if Cowgill had brought the suit. McQuesten is subject to all the equities that Cowgill would have been. After the proceedings had been instituted to divert the $506 to pay the judgments against Cowgill, McQuesten had no better right to recover the same, than Cowgill would had he been plaintiff in the court below instead of McQuesten.
The findings of fact virtually show that the relation of principal and agent was created between Cowgill and Williams. At the time the consideration of the $1,749 was paid for the cattle, $506 of the money was separated from the sum, Williams, under the direction of Cowgill, was t ° 7 †0 deliver this to McQuesten. It was his duty to have so delivered the money, or to have returned it to Cow-gill, unless prevented by legal proceedings. He was thus prevented. Prior to the payment, or delivery, the money was still the property of Cowgill, intended by him to be used to pay his note held by McQuesten. Before the money could be delivered to McQuesten, and while Williams was on his way to do so, the garnishment orders were served on him, and thereby the money in his hands (which he was to pay to McQuesten under the orders of Cowgill,) became liable to be appropriated to the satisfaction of the several judgments of the plaintiffs in error. From the time of the garnishment, the money in Williams’ hands, so belonging to Cowgill, was in fact in custodia legis; and after the money was deposited in the court, and all the parties making claim thereto were before the court asserting their respective interests, the court should have distributed the same in accordance with the respective rights of the plaintiffs in error under their judgments and the garnishee proceedings. McQuesten was not entitled to any portion of the fund in controversy, until the claims of the plaintiffs in error had been satisfied.
As the findings of the district court do not set forth the sums due on the respective judgments of the plaintiffs in error, we can only reverse the judgment' of the court below, and remand the case for further proceedings in accordance with the views expressed in this opinion.
Judgment reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The plaintiff Mitchell sought to recover from the county of Leavenworth compensation for his services as guard at the county jail. The court below, on the agreed state of facts, found for the defendant, and the action is here for review. The facts are as follows: Mitchell was employed by the sheriff of said county, at the county jail, as a guard of prisoners confined in said jail. His services in such capacity were rendered with the knowledge of the board of commissioners, on the engagement of the sheriff as aforesaid, and were necessary, and required for the proper care and safety of the public jail, and prisoners therein confined. The sum of fifty dollars per month is a reasonable and fair compensation for such services. Said plaintiff rendered such services during the months of January, February, March, April and May, 1875. He duly presented his account, duly verified, for each of the aforesaid months, to the ■county clerk of said county, which accounts were disallowed by the said board of commissioners. On the 7th of June 1875, the board of county commissioners of said county adopted the following resolution, to-wit: “That the guards at the county jail be allowed $50 per month salary, from January 1st 1875 until further order.” The question presented is, whether' the defendant in error is liable to the plaintiff in error.
The objections to the right of Mitchell to recover for the services from the county, are — first, because he was not employed by. the county, or by any one authorized to employ him in its behalf; second, that the statute imposes upon the sheriff the duty of employing guards at his .own expense in counties of this class, and the county could in no event become liable to pay for such services. The facts show that the services were necessary, and required for the proper care and safety of the public jail, and prisoners; that they, were rendered with the knowledge of the board on the engagement of the sheriff, and that the board by authorized action, (if such action could be authorized,) at a regular session fixed the compensation at the monthly salary of $50, and provided that the guards at the jail should receive their salary at this rate from January 1st 1875. This was a sufficient ratification of the action of the sheriff in the employment of guards during said time as to fix the liability of the county for such services, unless the statute imposes upon the sheriff of Leavenworth county the duty of employing guards at his own expense. The statute relied upon to establish the proposition that the county could not be bound to pay for the services of guards, even by an express agreement made by the board of county commissioners, is section 1 of ch. 3, laws of 1872, page 249. This section prescribes, that —
“In counties of thirty thousand inhabitants or over, the sheriff of the county, by himself or deputy, shall keep the jail, and shall be responsible for the manner in which the same is kept. He shall keep separate rooms for sexes, except where they are lawfully married. He shall supply proper bread, meat, drink and fuel for the prisoners, at his own expense, and everything else necessary for keeping said prisoners, and shall receive such pay as may be fixed by the county .commissioners, but not to exceed the sum of forty cents per day for each prisoner.”
In our view, there is nothing in the provisions of said section militating against the' power of the county commissioners to employ guards, if in their judgment the condition of the jail, or other circumstances, should so demand. The requirement to keep the jail, does not impose upon the sheriff the duty to construct a jail, or furnish the bolts, bars, and keys of the prison; if insufficient for the safe-keeping of prisoners, the county commissioners, within the scope of their general powers and authority, could employ guards to aid the sheriff in preventing the persons in such jail from escaping. The provision of the section, that “He (.the sheriff) shall supply proper bread, meat, drink and fuel for the prisoners, at his own expense, and everything else necessary for keeping said prisoners,” etc., refers to the maintenance of the prisoners, and not to the protection of the .prisoners from escaping — neither to their safe custody. Generally it would be unnecessary, with a sufficient and properly-constructed jail, to employ any guard to watch the jail, or aid in securing the persons confined therein; but circumstances might arise, which, from the condition of the jail, the large number of persons committed thereto, or from other matters occurring, in the judgment of the county commissioners a guard of one or more persons would be absolutely requisite, and in such cases, the law authorizes the commissioners, by virtue of their duty “to establish and keep at the expense of the county a jail for the safe-keeping of prisoners,” to employ and pay such guards. There is nothing in ch.3, laws of 1872, to prohibit or restrict this power.
The judgment will be reversed, and upon the agreed state of facts the court below is required to render judgment for plaintiff.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action originally commenced in the district, court of Morris county, on the 24th of March 1875, by defendant in error, The Council Grove Peerless Mill Company, filing its' petition and application for an injunction against Shamleffer, plaintiff in error. As grounds for an injunction, the defendant alleged that it was a mill company duly organized under the corporation laws of Kansas, and that as such company, had been since April 27th 1874, the owner in fee simple of two acres, of land in Morris county, a portion of which fronted on the Neosho river, upon which it had erected and was operating a flouring mill, which had cost said company the sum of $7,000. It was further alleged that said company for the purpose of acquiring a water-power for their mill had dug an artificial channel through their own lands and the lands of others from whom they had acquired the right, to a certain point on the Neosho river, and had thereby acquired a sufficient water-power to operate their mill successfully, which they had been doing until the interruption of the same by Shamleffer. It was further alleged that about 400 yards below the head of said artificial channel, previous to and at the time of the erection of said mill, there was a natural obstruction, or dam, in the Neosho river, formed of stone and gravel, which backed the water up and forced it through the head of said artificial channel, thus creating the water-power by which said mill was run and operated; and that the said Shamleffer, without any legal right or just cause, and with intent to stop the running of the mill, had removed, displaced and carried away the stones and gravel composing said natural obstruction or dam, whereby said mill was stopped, and plaintiff damaged in the sum of $1,000. Upon the filing of this petition, verified by affidavit, a temporary order was made at chambers, restraining Shamleffer from interfering with the rights and mill privileges of said company.
Afterward, on the 14th of April 1875, Shamleffer made an application for an injunction against said company to restrain it from cutting, widening or deepening the artificial channel or race-way referred to in the petition of the company, and to restrain it from diverting any of the water of the Neosho river through said artificial channel, alleging that he was the owner in fee simple of certain lands abutting on the Neosho river at the point where the head of said artificial channel had been cut into said river; that from the head of said channel, down to a point below where said natural obstruction was alleged to be, he was the owner of the lands on both sides of said river; that he had purchased all of said lands for the valuable mill privileges to be derived from their lying and fronting on said river, which is a private stream; and that he had, before the commencement of the action of the Peer less Mill Company, commenced proceedings under the mill-dam act to have a mill-site condemned, and to erect a dam above the head of said artificial channel for the purpose of running and operating a grist and flouring mill; that said company, by means of said artificial channel, was diverting the waters of the said river from its natural course, preventing it from flowing on and over.his lands as it was wont to do, and asking that the said Peerless Mill Company be restrained from interfering with his riparian rights to the use and benefit of the waters of said river. Upon the filing of this sworn petition, a temporary order was made at chambers, restraining the Peerless Mill Company from widening or deepening its artificial channel, or diminishing the water of the Neosho river, or in any manner interfering with Shamleffer’s rights, until a full hearing of the matter could be had at the next regular term of the district court.
When the cases came on regularly for hearing, it was agreed by the parties that both cases should be consolidated into one action, under the title of W. F. Shamleffer v. The Council Grove Peerless Mill Company, and that the petition theretofore filed by said company against Shamleffer, should be taken as their answer to Shamleffer’s petition, and that issue should be joined without further pleadings. A jury was waived, and a trial was had to the court. All the evidence introduced at the trial is set forth in the record. No special findings of fact were asked by either party. Upon consideration of the premises, the district court found the facts, and gave judgment as follows:
“First, The court finds, that the said W. E. Shamleffer is not entitled to the injunction as prayed for in his petition; but the court finds that the said Council Grove Peerless Mill Company should be restrained and enjoined from deepening, widening or in any way changing the present condition of the channel by which the waters of the Neosho river are conducted through the slough to the mill of the said Council Grove Peerless Mill Company. '
“Second, The court finds further, that prior to the commencement of these suits there did exist at a point about half-a-mile, more or less, below the head of the race of the said Council Grove Peerless Mill Company, a natural obstruction, formed of stone, gravel and sand, and that- said Shamleffer did at said point, prior to the commencement of said suits, unlawfully dig out and remove the sand, gravel and stone, and thereby lowered said natural obstruction twelve inches, and that the effect of so lowering said obstruction did interfere with the rights of said Mill Company to the use of the waters of the Neosho river it had acquired by the construction of its mill.
“ Third, The court further finds that the said natural obstruction should be replaced in the same condition it was in prior to the removal of said stone, gravel and sand, by the said Shamleffer, as aforesaid.
“It is therefore ordered, adjudged and decreed by the court, that said Council Grove Peerless Mill Company, its agents, employés and servants, be restrained and enjoined from further lowering, widening, deepening, or in any manner changing the present channel leading through the slough, by which the waters of the Neosho river are conducted through said slough to the mill of said Mill Company where it now stands. It is further ordered, adjudged and decreed that the said W. F. Shamleffer, his agents, employés and servants, be enjoined and restrained from further interfering with, or in any way removing any stone, gravel, sand, earth or any other material which forms the obstruction by which the waters of the Neosho river are backed up and turned into the slough, and thereby conducted to the mill of said Council Grove Peerless Mill Company. And it is further ordered and decreed that the said Shamleffer, his agents, employés and servants, be enjoined and restrained from doing any unlawful act whatever that will in any way interfere with the rights of said Council Grove Peerless Mill Company to the use of the waters of the said Neosho river, as acquired by -it before the commencement of these suits, and prior to the removal of said stone, gravel and sand as aforesaid. .It is further ordered, adjudged and decreed that the natural obstruction, situated as aforesaid about half-a-mile, more or less, below the head of the race of the Council Grove Peerless Mill Company, be restored and replaced by the stone, gravel and sand lying adjacent and convenient thereto on the banks of the Neosho river, and on an island in said river near said obstruction, and that said sand, stone and gravel be so replaced as to raise said obstruction twelve inches from the lowest point of the present height of said obstruction, and that said material be so placed and spread in said river as to restore the obstruction as near as practicable to the same condition it was in before the removal of the same by the said Shamleffer, prior to the commencement of these suits. And it is further ordered, decreed and adjudged that Isaac Hammond, the county surveyor of Morris county, is hereby appointed and empowered to superintend and control the replacement and restoration of the stone, gravel and sand in said river, for the purpose of carrying into effect the decree of the court aforesaid, and that he is'hereby authorized to employ a sufficient number of men to perform said work, under his orders and directions, and to report in writing to this court his action in the premises, and the amount of his services and expenditures incurred thereby. And it is further ordered, adjudged and decreed that the sheriff of said Morris county shall protect the said Isaac Hammond, county surveyor as aforesaid, in the performance of the duty assigned him by this decree of court, and the sheriff is hereby ordered and required to call on a sufficient force, if necessary, to aid and protect the said Hammond in the execution of this order. And it is further ordered, adjudged and decreed that the said Shamleffer, his agents, employés and servants, and all persons whomsoever, are hereby restrained and enjoined from in any way interfering with, hindering or delaying the said Hammond from carrying into effect the duty assigned him as aforesaid.”
To this judgment Shamleffer excepted. A motion was made for a new trial, which was overruled and excepted to. The errors complained of by plaintiff practically resolve themselves into but three propositions, to-wit: First, That the court erred in admitting certain testimony in behalf of the defendant, over plaintiff’s objection. Second, That the findings of fact upon which said judgment is based, are contrary to the evidence. Third, That said judgment is contrary to law.
So far as the first error is concerned, little need be said. The only matter referred to in the brief is the admission of the proceedings in the probate court which were the foundation of Shamleffer’s title. As the findings and decree recognize and are based upon the fact that Shamleffer had title, we fail to see how he was prejudiced by the admission of this testimony. As no brief has been filed by defendant in error, and no defects in the proceedings by which Shamleffer acquired title pointed out, and as the decree is practically based upon the assumption that Shamleffer had title, we have made no critical examination of those proceedings; and we shall assume that they were sufficient to vest title in Shamleffer.
As little need be said upon the second proposition of counsel. The only specific finding of fact which could in any manner prejudice Shamleffer, was the second, and this seems a mixture of fact and law. So far as the mere question of the existence of the natural obstruction is concerned, there was testimony on both sides; and upon such a question of fact, the finding of the court must be held conclusive.
There is therefore really but a single question to be considered, and that is, whether the facts as they appeared in the case sustain the judgment; and in reference to this, these matters are undisputed: Shamleffer acquired his jn December 1874; the riact then acquired extended up and down the Neosho river for quite a distance; above and below the head of the artificial channel, it embraced both sides of the river; at that point it touched the river, the center of the channel being the boundary; by the digging of this artificial channel a portion of the stream was diverted; the portion diverted was taken from the river above the lower half of Shamleffer’s land, carried through the channel to the Peerless Mill Company’s Mill, and then returned to the river below all of Shamleffer’s tract. In other words, the lower half of Shamleffer’s land was by the action of the Peerless Mill Company deprived of so much of the flow of the water as passed through the artificial channel. No portion of this channel was on the Shamleffer tract, and the assent of the owners of the land through which it was dug was obtained by the company. The channel was dug in the summer of 1874, and prior to Shamleffer’s acquiring title. No express consent to the diversion was at any time obtained from the owner of the Shamleffer tract. This tract had belonged to one Seth M. Hays, who died before the Mill Company com menced its work, leaving one child, a minor, as s0]e heir. Shamleffer acquired his title by deed from the executor of Hays and guardian of the minor. No right to the diversion was obtained by any legal proceedings, or any conveyance or permission from the executor or guardian. Beyond this there was testimony tending to show that the company applied to the executor for permission to build a dam, and was refused; that it attempted some negotiations with him for the purchase of all or a part of this tract, but failed; and on the other hand that he knew of the digging of the channel by the company, and made no objection.
Upon these facts these questions arise: Did the Mill Company have the right, by digging the channel, with the consent of the owners of the land through which it was dug, and of the owner of one bank of the river at the point where the channel commenced, but without the consent of the lower riparian owner, to divert a portion of the water from its natural channel, and return it to the river only below the lands of the non-consenting and lower riparian owner? If*it had no such right, did the knowledge of the executor and guardian, that it was expending money and labor in digging the channel, and his failure to object, work any estoppel upon the infant owner of the premises deprived thereby of the flow of a portion of the stream ? If not, did the conveyance of the land carry with it to Shamleffer the rights to the entire flow of the stream in its natural channel? The first question must be answered in the negative; The Mill Company hád no right to divert any portion of the flow of the stream to the detriment of any lower riparian owner. A riparian owner has the right to such benefits as will result from the uninterrupted flow of a stream of water through its natural channel. The maxim of the common law was, Aqua currit et debet currere ui currere solebat. As was said by Lord Ellenborough in Bealy v. Shaw, 6 East, 206, “every man is entitled to a stream of water flowing through his land, without diminution or alteration.” In Tillotson v. Smith, 32 New Hamp. 90, Bell, J., said: “Every owner of land situate upon a stream has a right to the natural flow of the stream; a right to insist that the stream shall continue to run ut ourrere solebat; that it shall flow upon his land in the usual quantity, at its natural place, and at its usual height, and that it shall flow off his land upon the land of his neighbor below in its accustomed place and at its usual level. This right he has as an incident to the property in his land, and he cannot be deprived of it but by grant, actual or presumptive. Whenever, by reason of the interference of the owner above, the water is diverted from his land and made to run elsewhere, or the water of other streams naturally running elsewhere is turned upon his land, or the water of the natural stream is made to flow upon his land at a different place from its natural channel, or at a different level, or in an unnatural manner, * * * the owner of the land may maintain an action for such injury.” See also Ingraham, v. Hutchinson, 2 Conn. 584; Parker v. Griswold, 17 Conn. 288; Evans v. Merriweather, 3 Scam. (Ill.) 492; Dlliott v. Fitchburg Rld. Co., 10 Cush., 193; and generally, Angell on Watercourses, ch. 4, and cases cited in text and notes.
The second question must also be answered in the negative. The title to the property was in the heir, a minor. There is no pretense that she knew anything of the work, or any claim that her conduct worked any estoppel, if indeed the knowledge and silence of an infant can ever be construed into an estoppel. And as to the knowledge and silence of her executor and guardian, that certainly can work no estoppel as against her. The right to this stream of water is incident to and part of the realty. But a guardian can make no sale or conveyance of the realty, or any part thereof, without an order of the probate court. And as the will is not copied into the record, we cannot assume that the executor had any greater powers than those he actually exercised, and those were to sell and convey under orders of the court. If he cannot make a sale, or divest the minor of her interests without an order of the court, he cannot indirectly and by his silence accomplish the same result. The court protects the minor’s interests, and her rights in the realty cannot be destroyed without judicial sanction. More than that, it does not anywhere appear that there was any concealment, or any facts known to the executor and guardian not known to the company. Every one is presumed to know the law. The company knew that it could not divert any portion of the stream from its natural channel without the consent of the riparian owners prejudiced thereby. It knew that the minor was the owner of a tract from which the digging of the channel would divert a portion of the natural flow of the stream. It knew that the guardian of such minor could not dispose of his ward’s interest in that land, or any part of it, without the order of the court. The case therefore lacks many of the essentials to an estoppel. (Clark v. Coolidge, 8 Kas. 189.)
The third question must be answered in the affirmative. As incident to part of the realty at the time of this conveyance, was the right to the entire flow of the Neosho river through its natural channel “ without diminution ° , n or alteration. This,, with all other hereditaments, corporeal and incorporeal, passed with a conveyance of the land. “The right to the use of the flow of the water in its natural course, and to the momentum of its fall, on the land of the proprietor, is not what is called an easement, because it is inseparably connected with, and inherent in, the property in the land; it is a .parcel of the inheritance, and passes with it.” Angell on Watercourses, pp. 96, 97. In Johnson v. Jordan, 2 Met. 239, Chief Justice Shaw says of this right: “It is inseparably annexed to the soil, and passes with it, not as an easement, nor an appurtenance, but as a parcel. Use does not create it, and disuse cannot destroy or suspend it.” See also Tillotson v. Smith, 32 New Hampshire, 90; 3 Kent Com., side page 402. It follows therefore, that the mill company having no rights as against Shamleffer to any portion of the stream of water, cannot be permitted to question his acts in reference thereto.
The judgment will be reversed, and the case remanded for further proceedings in accordance with the views herein expressed.
Valentine, J., concurring.
Horton, C. J., not sitting in the case. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action to recover attorney-fees. The facts of the case, as shown by the evidence introduced, and by that offered to be introduced on the trial by the plaintiff, who is now the complaining party in this court, are substantially as follows: -In 1873, 1874 and 1875, the plaintiff was the county attorney of Lyon county. In 1873, the county board, being in regular session, directed the plaintiff, as an attorney-at-law, to attend to a suit then pending in Harvey county, in which suit the county of Lyon was a party; and the plaintiff did so attend to said suit. In 1874, the county board, being again in regular session, directed the plaintiff as an attorney-at-law to attend to a suit in the supreme court, in which suit the county of Lyon was interested, and the plaintiff did so attend to said suit. No record was ever made of any of these matters in the county commissioners’ records — (and because there was no record thereof, the court below refused to allow the plaintiff to prove these matters by parol evidence.) On July 16th 1875, the county board, being in regular session, the plaintiff presented his claim for his said services, properly sworn to, and the same was properly filed, but the board took no action with reference to the claim. In about a week afterward the board was again in regular session; but only two members of the board were present at this time, and they could not agree with reference to the plaintiff’s claim, so they neither allowed it nor disallowed it. (This was proved by parol evidence, without any objection being interposed for that reason.) On the 7th of August 1875, the plaintiff commenced this action before a justice of the peace. The bill of particulars was entitled, “Lyon County, Kansas, to Almerin Gillett, Dr.,” etc. But the original summons was issued against the “Board of County Commissioners,” etc., and the action was prosecuted and defended in that name. Judgment was rendered in the justice’s court in favor of the plaintiff, and the defendant appealed to the district court. In the district court the defendant demurred to the plaintiff’s bill of particulars because of a supposed defect of parties defendant, and because of a supposed insufficiency in the statement of facts. The de murrer was rightfully overruled. The defendants then filed an answer setting up five defenses, (and we here use the word “defense” in its broadest sense) — first, a general denial; second, a plea in abatement, that the plaintiff’s claim had never been presented to the county board; third, a plea in bar, that the plaintiff’s services were voluntary, and that no contract had ever been made therefor; fourth, a plea in abatement, that the plaintiff’s claim had never been passed upon by the county board; fifth, a counter-claim for money-paid to other counsel for services in the same cases in which plaintiff claims he was employed. The plaintiff filed a general denial in reply to this answer, and the ease was tried upon the issues so joined.
The plaintiff made no objection to trying said defenses in abatement, nor to trying them at the same time with the other defenses. And probably no such objection would have been available even if made. (See civil code, §§94, and 265 to 267, Gen. Stat. 648, 680; but also, see Rippstein v. St. L. Mu. Life Ins. Co., 57 Mo. 87.) The judgment, however, if it were rendered on the defenses in bar, would be a final determination of the subject-matter of the action; while if it were rendered on the defenses in abatement, it would not necessarily be final. The defendant objected to the introduction of any evidence under the plaintiff’s bill of particulars, on the ground that the said bill did not state facts^sufficient to constitute a cause of action. This objection was properly overruled. The bill of particulars not only stated one cause of action, but it in fact stated three causes of action — not very formally or elaborately, it is true, but still it stated them. It was not necessary that the bill of particulars should have stated that the several claims of the plaintiff had all been presented to the county board for allowance, and had been acted upon by them. Such a presentation of a claim constitutes no part of a plaintiff’s cause of action. It is merely a part of the mode of procedure to enforce the causes of action already existing. And if the plaintiff fails to resort to this mode of procedure, the failure is merely matter for defense — merely matter for plea in abatement, to be set up by the defendant itself.
The defendant also objected to the introduction of any parol evidence tending to show any contract on the part of the county commissioners authorizing the plaintiff to attend to said suits. This objection was sustained, and in this we think the court below erred. This evidence did not tend to contradict anything stated in the county commissioners’ records, but simply to show facts which had actually occurred but had not been entered in the proper record-book of the commissioners’ proceedings. Ordinarily, the records of the county commissioners furnish the best evidence of the acts and proceedings of such commissioners; but when such acts and proceedings amount in law to a contract, and this contract is for services, or property, or something of value to be furnished by the other party, and such-contract has been executed by the other party, and the county has received the benefit of such services, or property, or thing of value, it would certainly not be proper to allow the,county commissioners to then defeat an action for such services or property or thing of value, merely because the county commissioners and their clerk had failed to do their duty by making their records show all their acts and proceedings. This has virtually been so decided in the case of Butler v. Comm’rs of Neosho Co., 15 Kas. 178. But we would now have to decide otherwise if we should now hold that the plaintiff in this action could not prove his said contract by any other evidence than by the county commis. sioners records. We think he had a right to prove the same by parol evidence. While the statute (Gen. Stat. 263, § 44,) requires that the county clerk shall record all the acts and proceedings of the county board, yet there is no statute that renders such acts or proceedings void if not recorded, and no statute that makes the records of the county board the only evidence *of their acts and proceedings.
The defendant claims that the error, if error there was, in refusing to permit the plaintiff to prove his said contract by parol evidence, was wholly immaterial; and several reasons are urged for this claim, none of which however, are, in our opinion, sufficient. Even if a judgment should have been rendered in favor of the defendant on its pleas in abatement, still we think the error was material. For such a judgment would not be conclusive against the plaintiff’s claim on its merits, while the judgment that was actually rendered would probably be conclusive. The judgment actually rendered was evidently rendered on the defendant’s pleas in bar; and if allowed to stand would be conclusive and final against plaintiff’s claims on their merits. We think however that the defendant was not entitled to a verdict even on its pleas in abatement. But we do not think it is necessary to discuss or decide this question now.
We suppose there can be no question as to the right of a person to sue a county on a claim for money where the county through its proper officers and agents refuses to pay such claim. Leavenworth Co. v. Brewer, 9 Kas. 307; Armstrong v. Tama Co., 34 Iowa, 309. (But see contra, Brown v. Otoe Co., 6 Neb., and 5 Cent. Law. Jour. 5.) Our statutes make counties quasi corporations, and provide that they may “sue and be sued.” (Gen. Stat. 253, 254, §§1, 5, 6.) And there is no statute providing otherwise. When a county refuses to pay its debts, it may “be sued” like any other corporation, or person, and no statute can be found providing otherwise. The refusal of a county, through its agents, to pay a debt, is no more a judicial determination that the county does not owe the debt, than the refusal of any other corporation, or person, through its or his agents, to pay a debt is a judicial determination that it or he does not owe the debt. The doctrine that suits against counties for debts may be maintained, is almost everywhere upheld by the courts.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
F’Valentine, J.:
In this action, Samuel Morning was the plaintiff below, and A. J. Scott and several others were the defendants. Judgment was rendered in favor of the plaintiff below and against all the defendants; but as Scott is the only person who is now complaining of such judgment, it will be necessary only to consider whether the judgment rendered against him was correct, or not.
The plaintiff set forth in his petition that three of said defendants (other than Scott) executed to him a certain promissory note; that one of said three, and another defendant (other than Scott) executed to him a.real-estate mortgage to secure said note; and that’Scott claimed to have some interest in the mortgaged property, but that whatever interest he might have therein was junior and inferior to plaintiffls mortgage-lien. Scott answered to this petition, setting forth in his auswer, in detail, that he was thé absolute and exclusive owner of said mortgaged property, showing how he became the owner thereof; that the said mortgagors never had any any interest in the mortgaged property, and therefore that the mortgage was void as against him. There was no reply filed by the plaintiff to this answer. At least no such reply is found in the record. The record ¡tends to show that no such reply was filed; and the clerk of the court below certifies at the bottom of the record, “ that the above and foregoing is a true, full, and complete transcript of the above and foregoing cause, and the same contains all the pleadings filed and proceedings had in said cause.” Hence we must presume that no such reply was filed. The defendant T. M. Harmon also filed an “answer,” and the defendant Scott filed a reply to Harmon’s answer. These, and plaintiff’s petition, were the only pleadings in the case. Upon these pleadings the plaintiff Morning moved the court for judgment, and the motion was sustained, and judgment was rendered in favor of the plaintiff and against all of the defendants. The judgment was a personal money-judgment as against the said three defendants who executed said promissory note, and a judgment that the mortgaged property be sold, etc., as against all the defendants. This judgment was probably correct as against all the defendants except Scott. As against him, the judgment was erroneous. He was not in default, and no judgment could properly have been rendered against him on the pleadings. Upon the pleadings, the judgment should have been rendered in his favor.
The judgment of the court below as against the defendant Scott will be reversed, and cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by fendant in error, J. E. Young, who was plaintiff below, commenced this action against the board of county commissioners of Saline county. He set forth in his petition thirteen separate causes of action; but as the legal questions involved in each cause of action are precisely the same as those involved -
Valentine, J.:
On the 11th of August 1875, the dein °^ersj ^ will necessary to state the facts set forth in only one of such causes of action. The first cause of action sets forth substantially thé following facts: In 1868 the proper officers of Saline county levied taxes on the northeast quarter .of section 1, township 14 south, of range 5 west. On 28th June 1869, said land was sold to said county for said taxes, and afterward the subsequent taxes for subsequent years were charged up against said land. On 28th June 1872, the plaintiff, for' the purpose of purchasing the tax title to said land, paid into the treasury of said county $83.03, said sum being equal to the cost of redemption of said land at that time. The county treasurer then issued to the plaintiff the proper certificate, and the county clerk duly assigned the same to the plaintiff. On the 1st of April 1873 the county clerk discovered that said land belonged to the United States, and that it was therefore" exempt from taxation, and therefore that it ought not to be conveyed to the plaintiff for said taxes; and the county clerk refused to convey the same. The plaintiff then offered to return his said tax certificate to the county treasurer, and demanded that the treasurer should refund to him the amount he paid therefor, with interest, etc., but the treasurer refused. There are some other facts stated in the petition, but we do not think it is necessary to mention them. The defendant below demurred to this petition, on the ground that neither it nor any count thereof stated facts sufficient to-constitute a cause of action. The court below overruled the demurrer, and the defendant excepted. The defendant, who-is plaintiff in error, raises only two questions in this court: First, the plaintiff in error claims that the plaintiff below was bound to know that said land belonged to the United. States; that if he did not know the same, and supposed otherwise, it was a mistake of law, and not a mistake of fact; and therefore, as he paid said money merely upon a mistake of law he cannot now recover the same back. Second, the plaintiff in error also claims that whatever action the - plaintiff below may have had, the same was barred by a certain statute of limitations before this action was commenced.
The plaintiff in error might have raised still other questions; but it has not done so, and as these are the only ones it has raised in this court, these are the only ones which we shall consider or decide. We shall presume that the plaintiff in error waives all other questions.
Was the plaintiff below bound to know that said land belonged to the United States, and therefore that it was not taxable? And is his claim for a return of his money barred by any statute of limitations? We must answer both of these questions in the negative.
I, It is not an uncommon thing for land to be sold or granted by tbe United States so as to become taxable long before any public record shows it to be taxable. This has been preeminently so with respect to a great deal of land in Saline county. (K. P. Rly. Co. v. Culp, 9 Kas. 38; Railway Co. v. Prescott, 16 Wallace, 603; Railway Co. v. McShane, 22 Wallace, 444.) Such land was granted to the Leavenworth, Pawnee & Western Railroad Company, now Kansas Pacific Railway Company, upon certain conditions. (12 U. S. Stat. at Large, 489, et seq.; 13 U. S. Stat. at Large, 356, et seq.) When these conditions were all performed, the land became the property of the railroad, and not till then. But some of these conditions were such that no public record would -show when they were performed. For instance, one of these conditions was that the railroad 'company should complete its road through these lands before any title should pass. Now as soon as this and the other conditions were performed, the land would belong to the railroad company so as to be taxable, although no record would then show such completion, and although no patent would then have been issued. (See cases above cited.) Indeed, it never was necessary that the patent for land granted by the United States should first be issued before the land could become taxable. (McMahon v. Welsh, 11 Kas. 280, 291, 292; Gulf Rld. Co. v. Morris, 13 Kas. 302.) All that was ever necessary was, that the grantee should be entitled to receive the patent. Now the completion of a railroad is certainly more a question of fact, than of law; and no person is bound as a matter of law to take notice of its completion. Therefore no person was bound as a matter of law to take notice of the completion of said railroad through Saline county, or rather through certain lands situated in Saline county. And therefore no one can be presumed to have known when said lands became taxable. But is any one, in ány case, bound to know as a matter of law when the title to land so passes from the government that the land becomes taxable? As we have before said, the land is taxable as soon as some person is entitled to receive a patent therefor; but the patent may not be issued for months, or even years, after such person is entitled to receive it. And if every person is bound to know when land, sold or granted by the government, becomes taxable, he is also bound to know when all the facts transpire which give to any person a right to receive a patent for such land from the government. Can it be that the law requires any such thing? And even when the patent is issued, is any person except the one to whom it is issued bound to know that fact? It is true, the patent is recorded in Washington; but is any person bound to take notice of that record? We. do not think that it is necessary to answer these questions in this case. But passing on, is it necessary even, that the error or mistake in supposing said land to be taxable should be one of fact, instead of one of law? The plaintiff in this case claims under section 120 of the tax law of 1868, (Gen. Stat. 1058,) and not under any general rules of law or equity. That section provides among other things as follows:
“And if after any certificate shall have been granted upon such sale, [a tax sale,] the county clerk shall discover that, for any error or irregularity, such land ought not to be conveyed, he shall not convey the same; and the county treasurer shall, on the return of the tax certificate, refund the amount paid therefor on such sale, and all subsequent taxes and charges paid thereon by the purchaser or his assigns, out of the county treasury, with interest on the whole amount at the rate of ten per cent, per annum.”
Now whether the said “error or irregularity” to be “discovered” by the county clerk, must necessarily be one of fact, or whether it may not be one of either law or fact, we do not think it is necessary to decide in this case. For the “error or irregularity” actually “discovered” by the county clerk in this case was probably and presumably one of fact. It consisted in supposing that the land did not belong to the United States, and that it was taxable, while in fact the land did belong to the United States, and was not taxable. Such an “error or irregularity” is sometimes, as we have already seen, a mistake of fact. Probably it generally is, and possibly it always is. It has already been decided by this court, that an “allegation of ownership, is the statement of a fact;” that “as against a demurrer, allegations in a petition that the plaintiff is the owner of certain lands, and that the same were not subject to taxation for a given year, will be deemed sufficient as statements of fact.” (L. L. & G. Rld. Co. v. Leahy, 12 Kas. 124.) Now the petition in this case sufficiently alleged that said land belonged to the United States, that it was not taxable, that nevertheless it was taxed, and that the county clerk discovered the error on April 1st 1873; but there is nothing in said petition which shows that said error was one of law.
II. The plaintiff in error also claims that claim of the plaintiff below is barred by the following statute, to-wit: “No account against the'county shall be allowed, unlesspresen ted within two years after the same accrued.” (Gen. Stat. 264, §47.) Now this statute is not applicable to this case. It applies only where it is necessary for the claimant to present his “account” to the county board to be “allowed” by them in order that he may obtain a county order on the county treasury for the amount of his claim. It does not apply where his claim is already liquidated and “allowed” by law, and where the instrument upon which he draws his money is already issued. In such a case as this, all that is necessary for .the claimant to do is to present his tax certificate to the county treasurer and receive his money; (Gen. Stat. 1058, § 120.) The county board has nothing to do with allowing, or disallowing, his claim, or with issuing an order on the county treasurer for it. When the county clerk “discovers” the “error or irregularity,” and refuses to convey the land for which the tax certificate calls, then the claim of the holder of the tax certificate becomes complete, and he is at once entitled to receive his money from the county treasury. The plaintiff in error also says in its brief, “ but this action accrued more than three years next before commencement, and is therefore barred by section 18 of civil code.” Now the county clerk did not discover said “error or irregularity” until April 1st 1873; nor did the county treasurer refuse to refund to the plaintiff his money prior to that time; and this suit was commenced August 11th 1875. Therefore, the claim of the plaintiff is not barred by said statute. It is not claimed that the plaintiff’s claim is barred by any other statute of limitation.
The order of the court below overruling said demurrer will be affirmed.
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The opinion of the court was delivered by
Horton, C. J.:
This suit was brought for a balance of $8,509, and interest, claimed to be due for 1629 head of cattle sold and delivered to plaintiff in error by the defendants in error, in 1871. The defense was a general denial of the allegations contained in the petition. The counsel for plaintiff in error now insists in argument, that upon trial there was no evidence of a completed and perfected sale, nor any testimony of a delivery of cattle. In fact however, the errors complained of are, that the verdict, and findings of fact by the jury, are against the evidence. We say that this is the result of the objections, because there is clear, positive, and unequivocal testimony supporting the verdict and each finding. Not only this, but the plaintiffs in the court below introduced evidence showing, after the claimed delivery of the cattle to Messrs. George & Bros., that M. B. George, one of the firm, in payment of the cattle accepted the following order:
Kansas City, Mo., December 11th, 1871..
Messrs. M. B. George & Bros.: You will pay to G. W. A. Latham, or order, the whole amount due us for cattle delivered about the 10th of November 1871, and charge the same to account. Myers & Green.
The amount due from George, $10,509.
On the back of this order is the following indorsement: “Accepted. — M. B. George & Bro. — December 11th 1871.” And plaintiff also introduced evidence, that in the spring of 1872, the George Brothers having failed to pay the order, the same was returned to Messrs. Myers & Green by said Latham, and that about April 1st 1872, J. J. Myers, of said firm of Myers & Green, sent an order to said George & Bros, at Sequin, Texas, for them to send him all the money that they could spare in payment of the money due on the cattle, and on this order the said George & Bros, sent two thousand dollars, and this was indorsed on the said order given to Latham as follows: “April 6th 187%, received on the within, two thousand dollars in currency. — Myers & Green.” Evidence was also introduced by Messrs. Myers & Green, that on said 11th of December 1871, said M. B. George admitted, in the presence of said Latham, to William Green, of Myers & Green, that over ten thousand dollars were due to M. & G. from George & Bros, for the said cattle, and that the case was continued in the court below over the October term 1873, by consent of Myers & Green, on the promise of said M. B. George that at the next term of the court he would confess judgment in the case for the amount of the claim. A considerable portion of the brief of the plaintiffs in error is filled with a discussion of the question, that there was no completed sale, because the cattle were not identified at the time of the purported sale, and that then the defendants in error did not have in their possession the cattle claimed to be sold. But all of this argument is useless, in view of the evidence of the delivery and acceptance of the cattle. If the defendants in error had not a hoof of the cattle at the date of the contract, still, if there was afterward a delivery and acceptance of the cattle sued for, as testified to, the defendants in error were entitled to recover.
Some point is made by counsel, that as Messrs. Ferguson, Slavens & Co., of Kansas City, had made an agreement with Myers & Green to pack on commission these cattle, and had advanced thereon over ten dollars a head, and in all $18,000, and as the cattle were shipped from Ellsworth, Kansas, to said F., S. & Co., the said George & Bros, neither saw, nor received them. All of this is explained by the testimony produced by Myers & Green. It was shown that George & Bros, were in the fall of 1871 having business transactions also with Messrs. F. S. & Co., and that George Bros, agreed to pay and satisfy said advances of Messrs. F. S. & Co., and the balance of the monej'- was to be paid to Myers & Green; and that at the direction of M. B. George the cattle were delivered on the cars at Ellsworth, and shipped to Kansas City to Messrs. F. S. & Co. Much of the evidence on the trial was conflicting, but this court has time and again held that it will not reverse a case of this kind. “ The case comes clearly within the rule so often declared by this court, that where there is clear and positive testimony sustaining every essential fact, and the verdict has received the approval of the trial court, this court will not interfere. In other words, in cases brought here on error from a trial upon oral testimony, this court is not a trier of questions of fact.” K. P. Rly. Co. v. Kunkel, 17 Kas. 145, 168, and the numerous authorities there cited. The explanation of Messrs. George & Bros, as to the acceptance of the order of December 11th 1871, payable to said Latham, and the payment of the $2,000 in April 1872, is not satisfactory in support of the theory that there was no delivery of the cattle; and we cannot say upon the evidence that the preponderance was in favor of the plaintiff's in error.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Two questions are presented in this case. The first turns on the validity of 'an ordinance of the city of Troy, a city of the third class, imposing a license-tax on auctions. This ordinance was passed on the 3d of February 1875, and required that for all sales at public auction a license should be obtained, and that for this license five dollars a day should be paid. It is said that this ordinance is void because “in contravention of common right, unreasonable, arid in restraint of trade,” and because the council “had no authority to tax by the day, only by the year.” Neither of these objections, we think, is good. Express authority is given by the statute to levy and collect a “license-tax” upon various exhibitions, professions, and avocations, including therein “merchants of all kinds;” and to make more clear that it is not regulation, but revenue, which is authorized, the section closes with a proviso as follows: “ provided however, that all scientific and literary lectures, * * * shall be exempt from such taxation,” etc. (Laws 1871, p. 130, §48.) That in the absence of constitutional restrictions, and we have none thereon, the legislature may authorize municipalities to tax employments as well as property, must we think be conceded. Judge Dillon thus sums up the authorities: “These cases show some diversity of opinion as to the right to tax particular employments, as distinguished. from property; but the correct view, it is submitted, is this: unless specially restrained by the constitution, the legislature may provide for the taxing of any occupation. or trade, and may confer this power upon municipal corporations. But such taxes are apt to be inequitable, and the principle not free, from danger of great abuse. Hence, ordinances of this character ought not to be sustained, unless the authority be expressly, or otherwise unequivocally, conferred.” Dillon on Munic. Corp., §291, note. See also City of Leavenworth v. Booth, 15 Kas. 635; Cooley on Const. Lim. 201, 495; Duraile’s Appeal, 62 Penn. St. 491; Hodgson v. New Orleans, 21 La. An. 301; St. Louis v. Boatmen’s Ins. Co., 47 Mo. 150; St. Louis v. Marine Ins. Co., 47 Mo. 163; St. Louis v. Laughlin, 49 Mo. 559; St. Charles v. Noble, 51 Mo. 122; Osborne v. Mobile, 44 Ala. 493; Bates v. Mobile, 46 Ala. 158; Goldthwaite v. Montgomery, 50 Mo. 486; Mason v. Trustees Lancaster, 4 Bush. (Ky.) 406; Kinper v. Louisville, 7 Bush. 599; Walcott v. The People, 17 Mich. 63; Kitson v. Ann Arbor, 26 Mich. 325; Darling v. St. Paul, 19 Minn. 389; Comm’rs Edenton v. Caplehart, 71 North Car. 156; Wiggins v. Chicago, 68 Ill. 372; Collinsville v. Cole, 78 Ill. 114; Wright v. Mayor, 54 Ga. 645; State v. Gagley, 5 Ohio 14. Begarded as a tax, therefore, it comes within the general proposition concerning taxation, that it knows no limit other than the necessities of the public treasury, and the discretion of the taxing power. Or perhaps more correctly, it may be said in respect to this, as a municipal tax, that the mere amount of the tax.does not prove its invalidity. The amount of the city indebtedness, the necessary expenditures of the municipality, may require an equally high rate of taxation upon all employments, and all property, so that however large this might seem to be, being in harmony with all other taxation, and necessary to meet the legitimate demands on the treasury, it could not be said to be unreasonable. This seems to avoid the argument of the learned counsel, that such a license, amounting in a single year to over $1,500, is oppressive, unreasonable, and in restraint of trade. For while it may not be true, that a city having authority to collect revenue by license may impose any sum, however large, as license, and thus in effect destroy certain kinds of business, yet before in such a case an ordinance imposing a license is declared void on account of the amount therefor, it should appear that' the necessities of the city do not require so large a revenue, or that there has been an unjustifiable attempt to discriminate against certain kinds of business by casting the whole burden of taxation upon them.
But is the amount charged for license in this case so enormous as to be unreasonable and oppressive? To pay over $1,500 a year for carrying on a permanent auction business, would seem excessive. But we must notice that this provision is for cities of the third class, cities not containing more than 2,000 inhabitants, and that in places of such small size a permanent auction-store is a thing almost unheard of. The only auctions there held, are, when some citizen closes out his household or other goods by an auction of one or two days’ duration; or when some wandering merchant comes with a flourish of handbills, posters, and other advertisements, to work off a stock of goods by a week or two’s rapid sales at auction. The latter really interferes with the business of the regular merchant; and for neither, is a license-tax of five dollars a day apparently exorbitant. A license of fifty dollars a day is no uncommon demand upon circuses, and other traveling shows, and may be fair and reasonable, while a similar demand upon permanent exhibitions would work a practical destruction of the business. Nor does the provision that license-taxes “shall be at such rate per year as shall be just and reasonable,” prevent a charge of so much per day. The purpose of that section was to prescribe the method of computing the amount of taxes, and that was by the time and not by the amount of business. It did not compel the council to exact a year’s license in every case, or prevent them from graduating the amount of the license by the actual time employed in the business licensed. We are forced therefore to the conclusion that, with no other evidence than that now before us, the ordinance must be held valid. With the wisdom or policy of such municipal legislation, this court has nothing to do. That is a matter for the separate determination of each municipality.
The other question involves the relation of the terms “auction,” and “auctioneer.” The ordinance purports to require licenses for both auctions, and auctioneers. The first section reads: “Before any person shall proceed to sell at public auction, * * * merchandise of any class whatever, he shall first obtain a license for an auction,” etc. — while the second is as follows: “Any person desiring to exercise the office or calling of an auctioneer, * * * shall first obtain a license therefor,” etc. Do these two sections reach to the same matter, so that obtaining a license under one, is equivalent to a license under both, and a bar to any prosecution under either? We think not. There is a clear distinction between the two. The one applies to the party who has goods which he desires to dispose of by auction, and the other to the party who makes the out-cry.. The same party may occupy both positions. He may have goods to sell at auction, and he may be his own auctioneer; but this is neither necessarily nor generally so. The rule is, for one to act as the salesman, the auctioneer, for others who have goods to sell. One, breaking up housekeeping, advertises his furniture for sale at auction. Another, desiring to close out a stock of goods, does the same, and each names a third party as auctioneer. The latter is simply the crier, one who makes it a business to act as the agent of others in this particular manner of selling goods. His business is that of an auctioneer; and for carrying on that business he is required by the second section to have a license. The party who has goods to sell, and desires to sell them at auction, and obtains the services of the auctioneer therefor, is the party who must take out the license required by the first section. These considerations dispose of the case, and compel an affirmance of the judgment.
It is understood that case No. 679, between the same parties, is controlled by the same questions; and the same judgment will be entered in that case.
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The opinion of the court was delivered by
Horton, C. J.:
In the fall of 1874, John A. Baker and Robert McMillan made a contract in reference to the pur chase of a lot of young mules for market. Baker claimed that the contract was in substance, “that he (Baker) should furnish the money to purchase a lot of weanling mules, and that when so purchased McMillan should take possession of them until they should be sold; that he (Baker) should have the right to sell them at any time; that upon their sale the net profits should be equally divided between him and McMillan.” On the other hand, McMillan claimed the contract to be, “that Baker was to furnish the money to buy a lot of weanling mules, and that when bought that he (McMillan) was to have possession of t]iem, take care of and feed them until they were three years old, except they should be sold when they were two years old by consent of both parties; that when they were three years old he (McMillan) was to break and fit them for market, and that when they were sold the net profits were to be divided equally between the parties.” Under the contract, however it was, thirteen weanling mules were bought in the fall of 1874, and placed in the possession of defendant. Higbee, the plaintiff, claimed that on July 15th 1875 the said Baker executed and delivered to him for a valuable consideration a bill 'of sale for all of the said mules; and Higbee, on the 21st of July 1875, filed an affidavit and bond in replevin in the office of the clerk of the distriót court of Lyon county. The clerk thereupon issued an order of replevin to the sheriff of said county, directing him to take the mules from the possession of • McMillan, and deliver them to plaintiff. The mules were taken under said order and delivered to plaintiff. On the 24th of said July, the plaintiff filed his petition in said replevin action. The petition was not filed, however, until after the issuance and service of the summons and order of replevin. The defendant, at the September term of said court, made a special appearance, and moved to set aside the summons and service thereof, which motion was granted. Thereupon plaintiff moved to dismiss the action without prejudice, which motion was granted. The defendant then made application to the court to inquire into the right of property and right of possession, which was done, and by the court the right of prop erty and the right of possession were found to be in defendant. A motion for a new trial was made by the plaintiff, which was granted by the court. The cause then again came on to be heard on .the inquiry demanded by defendant as to the right of property, and the right of possession, which questions, were tried by a jury and resulted in the judgment herein, complained of, which was to the effect, that McMillan should recover from Higbee the property replevied, together with $130 his damages for its detention, and in default of return thereof, that McMillan should recover from Higbee $845, the value of the property, and that he should also recover from Higbee his costs.
I. On the trial, Higbee, the plaintiff, to maintain the issues in his behalf, called Mrs. Baker as a witness, who testified, that she was “the wife of John A. Baker.” She was then asked: “Do you remember a conversation between your husband and the defendant, in your room at McMillan’s, in the fall of 1874, concerning the' buying of some mules?” To the asking of this question the defendant objected, on the ground that the witness was incompetent to testify to any transaction between defendant and her husband John A. Baker, concerning the mules in controversy, which objection the court sustained. The plaintiff then offered to prove by this witness, “that in the latter part of September or the first of October 1874, she and her husband, John A. Baker, were living at the house of the defendant, and that about that time defendant came into her room, occupied by her and her husband, and wanted her husband to buy two mules of a Mr. Jinkins; that her husband at first refused to buy the mules of Jinkins, and asked defendant why he (defendant) did not buy them; that defendant replied that he was too poor to buy them, that he wanted to sell the mules he had, and 'wanted her husband to buy them; that her husband finally consented to buy them, if defendant would take care of them just as he wanted him to, to-wit, to keep the mules until her husband should sell them, and take care of them, and that whenever her husband desired to sell the mules he should be. at liberty to do so, and should pay McMillan one-half of the net profits, as compensation for keeping them; that defendant agreed to this, and that thereupon Baker paid the defendant for his five mules, and that then Jinkins was called into the room, and Baker bought his two mules of him.” To this offer of proof of this witness, the defendant objected on the ground of the incompetency of the witness, which objection the court sustained. Proper exceptions were taken, and the question is fairly presented, whether the wife of Baker, the vendor, was a competent witness.
Section 319 of the civil code provides, that “No person shall be disqualified as a witness, in any civil action or proceeding, by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of a crime; but such interest or conviction may be shown for the purpose of affecting his credibility.” Section 323 of the code provides, that—
“The following persons shall be incompetent to testify; * * * Third, husband and wife, for or against each other, except concerning transactions in which one acted as the agent of the other, or when they are joint parties and have a joint interest in the action; but in no case shall either be permitted to testify concerning any communication made by one to the other during the marriage, whether called while that relation subsisted, or afterward.”
The husband was not a party to the record, nor is it shown that he was notified to appear and defend the title of the property claimed by his vendee. His appearance in the case was that of a witness, and although he was interested in the result of the suit, his rights would not be concluded by any judgment therein. A true construction of subdivision third, of section 323 of the code, in connection with section 319, does away with the question of interest on the part of the witness, and only applies when the husband or wife is a party in the action, or where the rights of the other, though not a party .to the record, would be concluded by any verdict rendered. The exception so contained in said subdivision of section 323, to the general rule adopted in section 319, should be confined to the terms stated. It ought not to be extended by construction. The old doctrine of the law was, that the wife could not be witness for her husband, because her interest was precisely identical with his; nor against him, upon grounds of public policy, because the admission of such evidence would lead to dissension and unhappiness, and possibly to perjury. The statutes in most of the states have changed this rule, and as our statute has opened wide the door to all persons to be witnesses, without regard to their interest in the suit, excepting as affecting their credibility, we ought not to keep up the disqualification as to the wife being a witness, on account of the interest of the husband, unless the plain provision of the law forbids any other conclusion. It is the tendency of our legislation to favor the introduction of all evidence, which will in any way explain a subject under investigation, and to lessen the limitations heretofore existing as to the competency of witnesses, and also to enlarge rather than restrict the rights of married women — to place her oh an equality with her husband in all things, and to render her condition sufficiently independent that we ought to expect from her a fearless regard for truth in the statement of facts. Nor do our laws purport to maintain matrimonial felicity by sealing the lips of a married person at all times, when the interests of the husband, or wife, of the witness are at issue. Husband and wife are competent witnesses concerning transactions in which one acted as the agent of the other, or when they are joint parties and have a joint interest in the action. Our law also makes husband and wife competent witnesses, if they are willing to testify, for or against each other in all criminal cases, and provides, that in any action for a divorce the parties thereto, or either of them, shall be competent to testify in like manner, and respecting any fact necessary or proper to be proven, as parties to other civil actions. Again, if a contrary conclusion is reached, than here stated, every time a husband or wife is a witness in a case, in which the other is indirectly, incidentally, or remotely interested, all the old questions of evidence in relation to the competency of the witness on account of the interest of his or her spouse, would be involved, and thus rules of evidence, now becoming obsolete everywhere, would be still kept alive in this state. The law has abolished interest as a bar to competency of the witness; and considering the other liberal legislative provisions regarding the testimony of married parties, for and against each other, the prohibition contained in said subdivision third of section 323 should only apply where the letter of the law makes the same indispensable. Perhaps it should be added, that the statements between Baker and McMillan were not communications made by the husband to the wife, and the concluding portion of said subdivision third has no application to communications made to third persons in the presence and hearing of each other.
We are aware that the views expressed above are in conflict with the case of Bird v. Hueston, 10 Ohio St. 418, but the laws of Ohio at the time of the rendition of that decision were not as liberal as our own, nor as liberal as the laws of Ohio are now, in this respect. In that opinion it is stated, that, “It is the policy of the law, in order to secure conjugal confidence, that in no case shall husband and wife be allowed to give evidence for or against each other.” Our laws favor a different policy, and are not as fearful of disturbing “ conjugal confidence” in permitting a wife or husband to testify to the truth. We think Mrs. Baker was a competent witness in the case, and that the court below committed error in rejecting her testimony.
II. The court below instructed the jury, “If you believe from the evidence that any witness has knowingly and willfully testified falsely to any material fact, you should totally disregard all the testimony of any such witness.” Within the decision of Shellabarger v. Nafus, 15 Kas. 547, the instruction was erroueous, and ought not to have been given. It is fitting however for us to say, that said instruction was given prior to the publication of the latter case in the 15 Kansas, and the court below only followed the rule laid down in Campbell v. The State, 3 Kas. 488, and the decisions in such other cases of this court as followed that.
III. The judgment in the case included $130 as damages to the defendant for the detention of the mules by the plaintiff. This was not error. Section 184 of the code permits the defendant, in a case where the property has been delivered to the plaintiff, and the plaintiff fails to prosecute his action to final judgment, to make application to the court to proceed to inquire into the right of property and right of possession of such defendant to the property taken. This application embodies a claim to the property, and a return of the property. The purpose of giving the court the authority to make the inquiries stated would be useless, unless it was intended to supplement the investigation with.a judgment or order. As section 185 of the code provides that in all actions to recover the posession of personal property, if the property has been delivered to the plaintiff, and the defendant claims a return thereof, judgment may be for the value in case a return cannot be had, and damages for taking ;and withholding the same, upon said application being made, as provided for in section 184, by the defendant, a like judgment may be entered as set forth in section 185 when defendant claims a return of the property. We make these remarks to settle a question of practice, and one which may arise again upon the trial of this case.
The judgment of the court below must be reversed, and a new trial awarded. ”
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
Defendant in this ease was prosecuted in the court below under section 233 of the crimes act, (Gen. Stat. 369,) and was convicted and sentenced to imprisonment in the penitentiary for the term of three years and six months. He now appeals to this court. The facts necessary to be considered in the case are substantially as follows: On September 5th 1876, in the afternoon, a jury was impanneled to try the cause., A portion of the evidence for the state was introduced, but there not being time sufficient on that day to complete the trial, the cause was adjourned at about 6 o’clock until the next morning, at 8J o’clock. During this adjournment the jury were allowed to separate, but they were not admonished as required by section 235 of the criminal code, (Gen. Stat. 857, 858.) Said section 235 reads as follows:
“When jurors are permitted to separate after being impanneled, and at each adjournment, they must be admonished by the court, that it is their duty not to converse among themselves, nor suffer others to converse with them on any subject connected with the trial, .or to form or express any opinion thereon, until the cause is finally submitted to them.”
On September 6th, and 7th, the parties proceeded with the trial; and'on September 7th the defendant was found guilty by said jury. The defendant made a motion for a new trial, alleging among other things that the jury were permitted to separate as above set forth, without being admonished by the court, and that there was misconduct of the jurors, and others, during such separation. On the hearing of this motion, an affidavit of one of the jurors was read in evidence, which affidavit states among other things, that during said separation, and “during the evening of the 5th day of September 1876, and again on the next morning, a person who had heard the testimony of the witness Helen Banning, said to him (affiant) that he wished he (the person speaking) “was on the jury;” “that he” (the person speaking,) “would hang the old rascal;” “that he” (the defendant) “was guilty, and' ought to be hung.” (With regard to reading affidavits of jurors, see Perry v. Bailey, 12 Kas. 539.) The court below overruled said motion for a new trial, and sentenced the defendant as aforesaid.
About the only question to be determined in this case is, whether the said failure of the court below to admonish the jury ás required by law, and the subsequent refusal of the court below to grant a new trial to the defendant because of such failure, must, under the circumstances of this case, be considered as substantial error. That the failure to admonish the jury was error, we suppose will not be questioned. But still it is claimed by the prosecution that it was not substantial error. It is claimed that a failure to admonish the jury, as required by statute,'is not per se prejudicial to the defendant’s rights, and therefore that it is not per se substantial error. We shall assume that this is correct, and still we cannot wholly ignore the imperative demands of this premonitory statute. The statute says that the court “must” admonish the jury; and therefore no construction should be put upon the statute that would allow it to be wholly disregarded, or even to be lightly considered. By failing to admonish the jury, as required by statute, the door is opened wide for intervening prejudice to enter during the irregular separation of the jury. By such a failure one of the safeguards to an impartial trial is broken down, one of the securities to an impartial verdict is overthrown, one of the evidences that impartial justice is done, is obliterated; and all this, without any fault on the part of the defendant. Therefore, where there has been a separation of the jury during an adjournment of the trial, without such admonition, and the defendant afterward moves for a new trial upon the ground of such separation, want of admonition, and intervening prejudice, we think it ought to be presumed, in the absence of everything to the contrary, that prejudice, injurious to the defendant’s rights, did intervene during such separation, and did result from such want of admonition; and therefore we think, that in such a case the new trial ought to be granted, and a refusal to grant the same would be substantial error. While the mere failure on the part of the court to admonish the jury, might not be considered in and of itself as substantial error, yet the refusal of the court to grant a new trial notwithstanding the presumed resulting prejudice would be substantial error. Of course, if it were shown affirmatively by the facts of the case, or by facts brought into the case at the time of the hearing of the motion for a new trial, that nothing transpired during the irregular separation of the jury prejudicial to the defendant’s rights, then the court would not err in overruling the motion. This view of the question, of course, throws the burden of proving that no prejudice occurred by the reason of the failure of the court to admonish the jury, upon the state. And this would seem to be necessary, in order to give the statute full force and effect. If the burden of proving prejudice by evidence should always rest on the defendant, then the statute might in every case be disregarded. For if the defendant should show in any case that his rights had been prejudiced during a separation of the jury, he would be entitled to a new trial, whether the court had given such admonition- or not. Probably, prejudice actually occurred in the present case. The defendant was charged with an offense well calculated to' arouse the feelings, and even the indignation of the public, if the people really believed that he was guilty. And it seems that something really did arouse the indignation of at least one person. The indignation of many others may have been aroused. ■ The failure therefore of the court to admonish the jury, may have resulted in great injury to the defendant. Of course the failure of the court to admonish the jury was a mere oversight, which the court would have corrected at the time if either party had at the time called its áttention to the same. But as the statute makes it the imperative duty of the court, without any suggestion, to give such admonition to the jury, we do not think that the defendant waived any rights by failing to call the attention of the court to the matter at the time of such failure. If the defendant had failed to move for a new trial because of said failure, then perhaps we might presume that the defendant had waived the error, or at least we might presume that the error did not work any substantial prejudice to his rights, and therefore, and for that reason, he did not choose by moving for a new trial on that ground to put the sta<te to the trouble of showing that nothing prejudicial in fact occurred during the irregular separation of the jury. We do not know that any case like this has ever before been decided. But for cases deciding questions slightly analogous to this, see 13 U.S. Dig., first series, 530, 531, §§7274 to 7307.
The judgment of the court below will be reversed, and cause remanded for a new trial. The defendant will be returned to Bourbon county, and delivered over to the jailor thereof, there to abide the further order of the court below.
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The opinion of the court was delivered by
Valentine, J.:
The defendant in error brought this action in the court below against the plaintiff in error on a promissory note, and procured an order of attachment upon the sixth, seventh, and eighth statutory grounds, which order of attachment was levied on lot 10, in block 43, in the city of Newton, and also upon certain personal property. Afterward, the plaintiff in error moved to dissolve and discharge the attachment, first, because the facts stated in the •affidavit upon which the attachment was issued were not true, and second, because all of said property was, under the law, exempt. Said motion was based upon the affidavit of the plaintiff in error, and the papers in the case. Other affidavits were also filed by both parties. The motion was heard by the judge below at chambers, and he, after taking the matter under advisement, discharged said attachment as to said real estate, and sustained it as to the personal property. The plaintiff in error now complains that the court below erred in refusing to discharge the attachment as to the personal property. And whether the court' below did so err or not, is the only question now presented in the case.
The evidence upon which the motion was heard was all in writing, and we now have it all before us; and hence we have the same means of determining whether the motion should be sustained, or overruled, as the judge of the district court had, and we can therefore act as intelligently up on the question as he could. Of course we think the district court or the judge thereof should in all cases be allowed some discretion in sustaining or overruling a motion to dissolve or to discharge an attachment; and this court should not overrule an order of the district court or judge in such case, unless this court should feel clear that the district court or judge has erred upon some material question of law. Now whether the defendant below, plaintiff in error, was disposing or about to dispose of his property with the intention of defrauding his creditors, we are not clear, and therefore upon that point we should sustain the ruling of the judge below, refusing to dissolve the attachment. Indeed, we are inclined to think that the preponderance of the evidence sustains such ruling, and therefore clearly upon this point we should sustain such ruling.
But there is another question in the case. Was the property exempt from said attachment? This question depends upon the following facts: The defendant below was the head of a family, which consisted of himself, his wife, and one child. He with his family kept a hotel, or public boardinghouse, at Newton, and all resided in said hotel. They had $432.15 worth of household goods, which they used in said hotel for their own accommodation and for the accommodation of their guests and boarders. This was more of such goods than they actually needed for their own accommodation, but not more than they needed in their business. Of this property $336.30 worth was attached in this action, and the remainder thereof, to-wit, $95.85 worth, was left with the defendant by the officer, as being exempt. The defendant did not own or have any other household goods, or household furniture. Our statute provides among other things, that—
“Every person residing in this state, and being the head of a family, shall have, exempt from seizure and sale upon any attachment, execution, or other process issued from any court in this state, the following articles of personal property: * * * fourth, all the wearing apparel of the debtor and his family; all beds, bedsteads, and bedding used by the debtor and his family; one cooking-stove and ap pendages, and all other cooking utensils,'and all other stoves and appendages necessary for the use of the debtor and his family; one sewing-machine, all spinning wheels and looms, and all other implements of industry, and all other household furniture not herein enumerated, not exceeding in value five hundred dollars.” (Gen. Stat. 473, § 3.)
The words, “all other implements of industry,” evidently mean in this connection, all other household implements of industry, or all other implements of industry pertaining to the house, such as sewing-machines, spinning wheels, looms, etc. The words, “all other household furniture,” explain themselves. The word “furniture” is a comprehensive term, embracing about everything with which a house or anything else is or can be furnished. In this connection it evidently means, everything with which the residence of the debtor is furnished. Now the defendant in this case had less than $500 worth of household goods of every kind and description. Therefore,"they must all have been exempt under the statute. "While we think that it is necessary that goods, in order to be exempt under subdivision 4 of section 3 of. the exemption-law, must be so connected with the residence of the debtor that they may be denominated his household goods, yet we do not think that it is necessary that they should all be in actual and personal use all the time by members of the debtor’s family, or that they be actually necessary for such use. See Mannan v. Merritt, 11 Allen, (Mass.) 582. They may be pictures hung upon the walls, or other furniture, or mere ornaments, or bedroom furniture for visitors only, or bedroom furniture, table-ware, etc., for paying guests, or boarders, etc. In this state a man must not give credit to another on account of any supposed security furnished by his debtor’s household goods, unless these household "goods should be immensely valuable, or unless the creditor takes some specific lien thereon, such as a mortgage, pledge, etc. It would seem that the goods attached in this case ought to be worth more than $336.30, but still that is just what the evidence showed they were worth. We think they were all exempt from said attachment, and therefore the order of the judge of the court below refusing to discharge the attachment as to the personal property, must be reversed, and the cause remanded with the order that said goods be released from the attachment.
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The opinion of the court was delivered by
Brewer, J.:
This was an action of attachment. Many questions are presented, and many errors alleged. Some of them however are of minor importance, and deserve little notice. A motion was made to dissolve the attachment, which had been levied upon a quarter-section of land belonging to defendant, the plaintiff in error. Among the grounds in the motion are these:
First, that the affidavit for the attachment was not true. The charge was, that the defendant was about to convert his property into money for the purpose of placing it beyond the reach of his creditors. It appears that the only property belonging to defendant was this quarter-section, except perhaps some lots mortgaged for their full value. The defendant in his affidavit denied the charge, but the affidavit of one witness was in evidence showing that Gapen offered him the land for what he said was not half the value, but that he was determined to sell it to prevent Stephenson from getting it; and the affidavit of another, that Gapen said he had tried to sell the place for less than one-third its value, and that he had moved onto it to claim it as a homestead, for the sake of beating Stephenson. Other circumstances were also in evidence tending to show a like purpose, and we cannot say that the court erred in holding the charge true.
A second ground was, that the bond was insufficient in amount. The claim was for $7,500. The bond in the same amount. The statute requires the bond to.be in “not exceeding double the amount of the plaintiff’s claim.” The statute was complied with. If the amount was really insufficient to properly protect the defendant, the court on motion could have required a larger bond.
Another ground was, that one of the appraisers was not a householder. The sheriff’s return shows that both appraisers were duly qualified. Conceding for the purposes of this case, that in this respect the sheriff’s return may be contradicted, and that the testimony discloses that one of the appraisers was not a householder, (though we do not decide that either of them is the case,) still we think the defect is not such as to cause a dissolution of the attachment. It was not a matter going to the right of the plaintiff to have an attachment — not a matter over which he had any control. The mistake was one of the officer, and not of the plaintiff, and not a mistake as we think prejudicing the substantial interests of the defendant.
Another ground was, that the property attached was a hom.estead, and therefore exempt. The land was entered June 21st, and the attachment levied June 24th. The defendant was married in March preceding. His affidavit showed that he moved on to the land in April, with the intention of making it a homestead; that the dwelling-house was located on low ground, which was unhealthy, and that in consequence of his wife’s health he ternporarily removed his family therefrom with the intention of moving the house onto higher ground, and then permanently occupying it as his homestead, which intention he carried into effect on the 26th and 27th of June. On the other hand, were several affidavits showing that until after the attachment defendant and his wife never slept a single night on the place, and never ate but one meal thereon, which was cooked at plaintiff’s house and taken over there so as to furnish the basis of testimony for a contest for the land before the land-office, and also that defendant had prior to his entry made a contract to sell the land to the wife of plaintiff, and had received considerable amounts in payment therefor. Upon this testimony, and that heretofore referred to in this opinion, did the court err in overruling the motion to dissolve the attachment on the ground that it was a homestead ? We think not. The testimony satisfies us that defendant had contracted to sell this land, and that the homestead intention was an after-thought. If he was intending to carry out his contract to sell, of course he was not intending to make a homestead. And we are not willing to believe that he was base enough to be from time to time receiving considerations on a contract which all the while he had no thought of performing. More reasonable is it, more just, and more in accordance with the testimony, to believe that he was intending in good faith to carry out his contract until the time of performance, and that then, owing to some disagreement, or some misunderstanding, the nature of which does not fully appear, the intention was formed of retaining the land, and claiming it as a homestead. At any rate, there was abundant testimony to sustain the conclusion of the district court in the matter.
One or two other grounds were presented in the motion to dissolve the attachment, but those noticed were the principal ones; and in none of them do we see anything of substantial error. The ruling of the court therefore in refusing to set aside the attachment must be sustained.
, A second series of questions arises on the overruling of two motions for continuance. In these motions, three matters were presented — the absence of witnesses, sickness in the defendant’s family, and a claim that the action was not under the statute triable at that term. Passing the two matters first named, with the remark that we see no error in the ruling of the court thereon, we are constrained to hold that under the statute the action was not triable at the term at which it was tried, and that therefore the court erred in compelling the defendant, against his objection, to go.to trial at that time. The facts in reference to this matter are these: The petition was filed June 24th 1873. On July 24th, a motion was filed to compel plaintiff to make his petition more specific and definite. This motion was confessed by plaintiff, and on January 22d 1874, by leave of the court, an amended .petition was filed. On February 9th, defendant filed his motion to compel plaintiff to make this amended petition more specific and definite. On April 15th this motion was sustained as to four matters, whereupon plaintiff by leave of the court struck out from his petition these matters. Defendant thereupon asked for twenty days to file answer, which was overruled and he was ordered to file answer 'by April 17th. The answer was duly filed. No condition was attached to this order granting leave to answer. And that the motion to have the amended petition made more definite was not frivolous, is evident because it was sustained. The answer was a denial, and a counterclaim. On April 20th, three days after the filing of the answer, the plaintiff filed a motion for a change of venue on account of local prejudice. On April 22d this motion was overruled. On April 18th, the first motion for a continuance was filed. In this the claim was made that the action was not triable at that term because the issues had only been joined during the term. On the same day the motion was heard, and overruled. On April 24th, the second motion for a continuance was filed, and overruled, and thereafter, on the same day, the case was called premptorily for trial, a jury impanneled, and the case tried. It appears from this statement therefore that the defendant was, over his objections, forced into a trial at the very term at which the issues were first joined. Now the law in reference to this matter has un dergone two or three changes. In the general statutes the rule was thus laid down:
“Actions shall be triable at the first term of the court after the issues therein by the times fixed for pleadings are, or should have been, made up; and when, by the times fixed for pleading, the issues are or should have been made up during a term, such action shall be triable at that term.”— Gen. Stat., p.689, §315.
Here no distinction is made between issues of law, and issues of fact; and an action was triable at a term whether the issues of law or fact were made up before or during that term. The language used is, “ by the times fixed for pleadings are or should have been made up.” The significance of this will be more apparent hereafter. In 1870 the legislature made this change:
“Actions shall be triable at the first term of the court after the issues therein, by the times fixed for pleading, are or' should have been made up ten days before the term. When issues of law are made up, either before or during a term of court, but after the period for preparing the trial docket for such term, the clerk shall place such actions on the trial docket of that term.” — Laws 1870, p. 174, § 10.
At the same time was added this provision: “ But no witnesses shall be subpenaed in any case while the cause stands upon an issue of law.” (Laws 1870, p. 173, § 9.) By this a distinction was drawn between issues of law, and issues of fact. The former were triable at a term whether joined before or during the term, but the latter only when they were or ought to have been made up ten days before the term. Here the significance of the words heretofore noticed,'“ by the times fixed for pleadings are or should have been made up,” becomes more apparent. The “ times fixed for pleadings,” are specified in the statute, or prescribed by order of the court. A plaintiff might give his adversary a few extra days in which to file his answer, and still not lose his right to insist upon a trial at the ensuing term, for the language is not limited to the actual making up of the issues, but refers also to the time fixed for making them up. In 1871 another change was made:
“Actions shall be triable at the first term of the court after the issues therein by the times fixed for the pleadings are or shall have been made up ten days before the term. When issues of law are made up either before or during a term of court, but after the period for preparing the trial docket of such term, the clerk shall place such actions on the trial docket of that term; and when any demurrer shall be adjudged to be frivolous, the cause shall stand for hearing or trial in like manner as if an issue of fact had been joined in the first instance; but the court may in its discretion fix specially the time when such cause shall stand for trial.” — Laws 1871, p.278, § 5.
By this, two changes were made. The words “should have been made up,” were changed to “shall have been made up;” and authority given to enforce the trial of an issue of fact joined after the overruling of a demurrer adjudged to be frivolous, at the same term at which the action would have been triable if an issue of fact had been joined in the first instance. The change from “should have been” to “shall have been,” is, as applicable to this case, significant. As the sentence now reads, it seems to refer exclusively to the actual time of making up the issues. This construction may perhaps leave some words in the sentence destitute of much force, but only thus does it seem to us can any significance be given to the change of language. “Are,” and “shall have been,” belong to the indicative and not to the potential mood. They refer to the actual, and not to the possible, or permissible. In the case before us, the petition was not settled until the very term at which the trial was had. Up to that time there was a defect in the petition which the defendant had a right to have cured before being compelled to make any defense. No delay had been sought by frivolous demurrer, or motion. The objections he made to the petition were good, and sustained. The petition was defective. And yet within nine days after the petition was perfected, the defendant was forced to answer, subpena his witnesses, and go to trial. This was against the spirit as well as the letter of the statute. We are led therefore to the conclusion, that there was substantial error in overruling the motion for a continuance, and in compelling the defendant to go to trial at that term; and for this error the judgment must be reversed, and the case remanded for a new trial. We understand that in a late case pending before the learned justice of the Ü. S. circuit court for this circuit, similar views were expressed in reference to the construction of the statute quoted of 1871.
It is hardly necessary to inquire into the alleged errors occurring on the trial. We may not anticipate what further proceeding will be had in this case, or the questions that will be raised.
All the Justices concurring. | [
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