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The opinion of the court was delivered by
Mason, J.:
In 1913 the owner of a tract of land executed to the Ajax Portland Cement Company an oil and gas lease thereon for ninety-nine years, providing for the payment of royalties on any oil or gas produced. Mary Skinner, who after-wards became the owner of the land, in 1919 brought this action against the lessee seeking a cancellation of the lease on the ground that no wells had been drilled. A demurrer to the petition was sustained and she appeals.
The plaintiff contends that under the allegations of the petition the lease was lacking in mutuality, was unilateral and without substantial consideration. The petition alleges that “the substantial and real consideration of said oil and gas lease was the royalty therein given,” and that “only one dollar was paid for said lease which is no consideration and one which, will not sustain and keep a lease for 99 years with the option to drill at any time during said term.” However, the clause of the lease containing the recital regarding consideration reads:
“In consideration of One Dollar, the receipt of which is hereby acknowledged, and as a part of the purchase price of the lands hereinafter described, the said party of the first part do hereby let and lease unto party of the second part and its successors and assigns for the period of ninety-nine years from this date, with full power and authority to enter upon at any time, and drill and operate thereon for oil and gas, the following tracts of land . . .”
A fair interpretation of this language seems to indicate that the execution of the lease was agreed upon as a part of a contract for the sale of the land by the lessee to the lessor. We regard the petition as containing no allegation of fact inconsistent with the hypothesis that the execution of the lease formed a part of the consideration for the conveyance of the land from the lessor to the lessee. The -averments that the substantial and real consideration of the lease was the royalty and that only one dollar was paid for it can hardly be treated as in themselves contradicting or explaining away the-statement that it was executed in part payment for the land. We think the recital relating to the purchase price of the land, at least in the absence of some explanation detracting from its apparent force, disposes of the contention concerning want of consideration and mutuality, apart from any question as to whether the plaintiff can be heard to contradict the recital of the lease concerning its consideration and apart from any question as to whether the payment of one dollar was a substantial consideration.
The plaintiff also contends that she is entitled to have the property developed within a reasonable time and that the failure of the defendant to commence operations under the lease warrants its cancellation. It is a familiar rule that although an oil and gas lease is silent on the subject the law will ordinarily imply a condition that operations are to be prosecuted with reasonable diligence and that a well must be drilled within a reasonable time, the failure to comply with which condition may in some circumstances afford ground for cancellation. (Cole v. Butler, 103 Kan. 419, 173 Pac. 978; 27 Cyc. 728; 18 R. C. L. 1212.) It is competent for the parties however to make such a contract as they see fit, and if the subject is covered by express stipulation there is no occasion or opportunity to supply agreements by inference. “When a lease provides how and when search for oil or gas shall be made there is no room for implications.” (Mills v. Hartz, 77 Kan. 218, 223, 94 Pac. 142.) Here the lease contains this clause: “It is entirely optional with the lessee as to when, during the term of this lease, it shall be obliged to drill either for gas or oil.” This language is too explicit to require interpretation. It leaves the lessee free to postpone the drilling of a well so long as he shall see fit. The enforceability of such a provision follows from prior decisions of this court upholding contracts for the payment of annual rentals in lieu of prosecuting the development of oil and gas properties. (Rose v. Lanyon, 68 Kan. 126, 74 Pac. 625; Ringle v. Quigg, 74 Kan. 581, 87 Pac. 724.) In the Rose-Lanyon case it was said:
“The courts have no right to declare that, whatever the parties may-think, operations for sinking a well must begin at once under an .oil or gas lease. If this court had done so prior to the time plaintiffs desired to contract they would have rebelled, without any doubt, with the utmost indignation against the decision as an infringement of their liberty to contract with reference to their land and the minerals beneath its surface as they pleased. In so doing they would have been justified. If plaintiffs should desire to contract for an immediate exploration, they must have that right; and if they should desire to give an oil or gas company five years in which to sink a well, upon a consideration satisfactory to themselves, and as the result of negotiations free from imposition and fraud, they must have that right. But having deliberately made a contract of the latter description, they have no right to call upon a court to declare that it is of the other kind merely because generally it might seem to be better for farmers not to encumber their lands with mineral leases giving a long time for exploration, or because generally such leases do contemplate that forfeiture shall follow a failure to explore at once.” (p. 134.)
The allegation in the petition of the failure to drill is followed by the statement that “by the conduct of the defendant there has been a total and complete abandonment of said oil and gas lease.” As no other fact is stated in this connection the use of the term “abandonment” does not change the issue presented.
The suggestion is made that there is nothing in the record to show that the defendant (a corporation) has legal capacity to take, own, operate or dispose of oil and gas leases; that its name does not indicate that business to be within the field of its operation; and that the presumption is that its charter does not extend beyond fifty years, while the lease is for ninety-nine. Inasmuch as the petition does not refer to a want of capacity on the part of the defendant there is no occasion to consider any question in that respect.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action brought by Nora Cure to recover from the Midland Life. Insurance Company $1,000 upon an' insurance contract made with her minor son, Hubert L. Cure. Judgment was in her favor, and defendant ^appeals.
The contract for insurance was arranged between Cure and G. T. Brewer, the agent of the insurance company, on July 29, 1918, and in the application it was stipulated:
“No policy issued in consequence of this application shall go into effect until it shall he actually delivered to me, and the first premium thereon shall be actually paid to the company, all during my life and good health.”
After the application had been approved and registered with the insurance department, but before it was delivered, Cure was accidentally killed. There is no discord between the parties as to the clause of the contract providing that the contract was not binding until the delivery of the policy nor as to the fact that no delivery had been made. It is conceded that under the contract, delivery of the policy was a prerequisite to the consummation of the contract; but it is contended that this provision was waived by the action of the agents and officers of the company. When the application was made Cure gave his note for $29.84 as a payment towards the first annual premium and it was arranged with his employer the Empire Gas and Fuel Company, that $10 of the amount should be taken out of his wages on August 10, $10 more on August 25, and the balance of $9.84 on September 10. The first payment was taken from his earnings on August 10 and paid to Brewer, the agent of the insurance company. The day following the accident Brewer notified the insurance company of the death of Cure and because the policy had not been delivered and was not in force, he transmitted the $10 which had been paid to him, to the company, as he said, “to return to his folks.” The vice president of the company replied that there was no liability on the application' for the reason that the policy had not been delivered, and stated that delivery had been -prevented by the failure of the mother of Cure to give her consent to the taking out of insurance by her minor son, and that the requests for her consent had been ignored by her. On August 25y the next pay day, which was ten days after Cure’s death, the Empire Company delivered a check to Brewer covering installments on a number of notes given by Cure and other insured employees, which included $19.84, the balance due on the Cure note. The fact that the check included a payment on the Cure note was not observed by Brewer when it was delivered, but when it was discovered he paid it back to the Empire Company, and also returned the $10 installment formerly received. The check covering this amount was held by the Empire Company for a few days and it was then returned to Brewer, with the statement that the parents of Cure refused to accept it. The amount so received is still in the hands of the defendant, but when it was tendered to the parents they refused to accept it, and have insisted that the defendant was liable for the full amount named in the application. When a demand was made for the insurance, the company sent a check for $29.84, the amount of the premium paid, but it was returned with the statement that $1,000 of insurance must be paid, and if not paid suit to collect the same would be begun.
The claim of waiver is based upon the fact that payments were accepted and retained after Cure’s death, and after the defendant had notice of his death. It is manifest that the defendant did not intentionally take or hold the premium money after learning of the death' of Cure. It is essential to a waiver of a contract right that there be not only knowledge of it but an intention to relinquish it. It has been said that—
“To make out a case of waiver of a legal right there must he a clear, unequivocal, and decisive act of the party showing such a purpose or acts amounting to an estoppel on his part.” (27 R. C. L. 909.)
The evidence shows that there was no intention on the part of the defendant or its agent to waive the condition or relinquish the right. When notice of the death was received there was prompt declaration of no liability and steps were taken towards the return of that part of the premium which had been collected. It is true that the balance of the premium $19.84, was taken out of the wages of Cure after his death, and after the notice of his death had been received by the defendant and its agent, and that this was included in a check covering installments of other employees which was turned over to the agent of the defendant. ' As soon as he learned that this amount was included in the check prompt and decisive action was taken by returning the money to the employer who had paid it. It was not knowingly taken nor was there any intention to retain or appropriate it. Instead of an intentional and unequivocal relinquishment of the contract right, there was a consistent insistence that there was no liability on the contract and an attempt in good faith to return the premium that had been indirectly paid through the agent of Cure’s employer. Nor is there-anything in the case in the nature of an estoppel, as the plaintiff was not misled by the fact that the premium was in defendant’s hands for a short time. From the beginning the return of the premium was steadfastly refused. A waiver of a like condition was before the court in Green v. Insurance Co., 106 Kan. 90, 186 Pac. 970. There an application for insurance was made and part of the first premium was paid, but it was stipulated that the contract should not take effect-until the delivery of the policy. The policy was executed, placed in the hands of the local agent of the company for delivery, but before it was accomplished the death of the applicant occurred. Because of the serious illness of the applicant and inability to consummate the contract, the delivery of the policy was delayed, but the agent informed the wife of the applicant that the policy was valid and in force. The agent was without authority to deliver the policy unless the premium was paid and the applicant was then in good health. Upon. learning of the death of the applicant the insurance company promptly disclaimed liability and it was held that while the court had been liberal in applying the doctrine of waiver in insurance cases there could be no waiver without an intention to waive the stipulated conditions and it was therefore held that waiver was not established. If the premium had been paid by Cure when the application was made and had been kept by the company until after knowledge of his death, it would not have affected the provision that the contract was to be without force until the delivery of the policy and full payment of the first premium while he was in life and good health. Of course, if the company had knowingly accepted premiums and intentionally recognized the validity of the contract and waived these conditions it would'be bound. The evidence does not show such an intention, and nothing occurring after his death tends to show an intentional relinquishment of the right or anything approaching an estoppel to deny liability.
The judgment is therefore reversed and the cause remanded with instructions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action, one in quo warranto, the plaintiff asks that the defendant, a city of the first class operating under the commission form of government, be required to show by what authority it exercises jurisdiction over the southeast quarter and the southwest quarter of section 17 in township 23 south of range 5 west in Reno county, and over that part of the northwest quarter of that section lying south of the center line of the right of way of the Atchison, Topeka & Santa Fe Railway Company, and asks that such authority be held void and in excess of the corporate powers of the city.
The principal phase of the controversy revolves around the extension of the corporate limits so as to include the southeast quarter of section 17. Four ordinances extending and defining the boundaries of the city of Hutchinson are set out in the abstract — one, No. 93, passed on February 28, 1888; another, No. 152, passed on May 1, 1889; yet another, No. 241, passed on July 24, 1890; and the last, No. 1378, passed on July 8, 1919. Ordinance No. 93 is so indefinite that the court is unable to ascertain whether or not the territory in question was embraced within it, and that ordinance will not be further considered. Ordinance No. 152 attempted to extend the corporate limits of the city so as to include the southeast quarter of section 17; but an examination of the order of the court on the petition of the city of Hutchinson, then a city of the second class (it became a city of the first class on February 21, 1911), to extend its limits, reveals that authority was not given to the city to extend its boundaries so as to include that territory. However, the evidence showed that the city of Hutchinson has been exercising authority over the southeast quarter of section 17 continuously since May 20, 1889.
That part of the northwest quarter of section 17 lying south of the Atchison, Topeka & Santa Fe railroad track was included within the city limits by ordinance No. 152. Both the ordinance and the order of the court included that territory, and it was by those proceedings included within the city limits, but the southeast quarter of section 17 was not included in the order of the court.
The next ordinance concerning this matter was No. 241, the title to which read: “An ordinance declaring and defining the entire boundary line of the line of the city as at present constituted.” The ordinance read: “That hereafter the corporate limits and entire boundary of the city of Hutchinson shall be as follows.” This was followed by a description of the territory which included the southeast quarter of section 17, but specifically excluded the southwest quarter of that section. When ordinance No. 241 was passed, Hutchinson was still a city of the second class. The statute then required that such a city desiring to extend its limits should present a petition to the judge of the district court—
“With proof that notice of the time and place said petition shall be so presented has been published for three consecutive weeks in some newspaper published in said city, he shall proceed to hear testimony as to the advisability of making such addition; and upon such hearing, if he shall be satisfied that the adding of such territory to the city will be to its interest, and will cause no manifest injury to the persons owning real estate in the territory sought to be so added, he shall so find; and thereupon the city council of said city may add such territory to said city by an ordinance providing for the same.” (Gen. Stat. 1889, § 884.)
It has not been shown that this section of the statute was complied with. Ordinance No. 241 defined the city limits as they existed at the time of its passage. If it correctly described the city limits at that time, the southeast quarter of section 17 must previously thereto have been included within those limits. No ordinance extending the city limits so as to include the southeast quarter of section 17 other than No. 152 appears in the record.
It might be successfully contended that the burden of proof was on the state to show that the city of Hutchinson had not extended its boundaries so as to include the southeast quarter of section 17. (The State, ex rel., v. City of Harper, 94 Kan. 478, 484, 146 Pac. 1169.) There is no question that the city by ordinance No. 1378 has attempted to include the southwest quarter of section 17 within the city limits. When it appeared that by ordinance No. 241 the city attempted to define its boundaries 'as they then existed and included the southeast quarter of section 17, and that for more than a year prior to the passage of that ordinance the city had continuously exercised authority over the territory, in the absence of any showing to the contrary a presumption arose that the ordinance correctly described the city limits, and that the southeast quarter of section 17 had been regularly included within the limits. In The State, ex rel., v. City of Atchison, 92 Kan. 431, 140 Pac. 873, this court said:
“Where an ordinance which has been regularly passed by a city council and approved by the mayor is offered in evidence, and the' validity of such ordinance depends upon the existence of one or more facts at the time of the enactment thereof, the existence, and not the nonexistence, of the necessary facts to sustain the validity of the ordinance should be presumed in the absence of evidence to the contrary.” (Syl.)
In The State, ex rel., v. City of Hutchinson, 103 Kan. 370, 175 Pac. 147, an action brought by the state on the relation of the county attorney to determine the authority of the city of Hutchinson over the land occupied by the reformatory, it was said:
“Under the facts stated in the opinion, the presumption that a certain ordinance adding to the territory of the defendant city was preceded by the requisite statutory preliminaries will not be permitted to be overthrown by the claims of the city to the contrary.” (Syl.)
For more than thirty years the city has exercised authority over the southeast quarter of section 17 — police and fire protection has been given, taxes have been levied, and sewers have been constructed, the assessments for a portion of which apparently remain unpaid and for which bonds have probably been issued. After that length of time, in the absence of proof to the contrary, it should be presumed that the city complied with the law and presented a proper petition to the judge of the district court; that an order was made authorizing the city to extend its limits so as to include that quarter section; and that subsequent to the passage of ordinance No. 152, another ordinance had been passed extending the city limits in accordance with an order of the court. That presumption should not be overthrown except by the most clear and convincing evidence; The time will soon come when cities will be unable to prove either their corporate existence or their territorial limits by proper record evidence. When that time comes, presumptions in favor of the cities must be resorted to. The following authorities support the conclusion reached: The People v. Farnham et al., 35 Ill. 562; Belknap, &c., v. City of Louisville, 93 Ky. 444; Sherry and another v. Gilmore and another, 58 Wis. 324; State, ex rel. Bridge Co., v. Columbia, 27 S. C. 137; McQuillin’s Municipal Corporations, §§ 260, 289. However, in none of the cases cited was the authority of the corporation directly questioned by the state.
With the southeast quarter included within the city limits, the southwest quarter of section 17, at the time ordinance No. 1378 was passed, was mainly within the city limits, because that quarter was bounded by the city on three sides; and the city had authority, under section 1462 of ‘the General Statutes of 1915, to extend its corporate. limits so as to' include such territory. Section 1462 in part reads:
“Whenever any unplatted piece of land lies within (or mainly within) any city . . . said lands, platted or unplatted, may be added to, or taken into and made a part of such city by ordinance duly passed.”
The presumption compels the court to hold that the southeast quarter of section 17 had been included within the city limits and therefore ordinance No. 1378 extended the city limits so as to include the southwest quarter of that section.
The judgment is reversed, and the trial court is directed to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The plaintiffs who owned and operated motor busses or jitneys in Wichita brought this proceeding against the officers of the city to enjoin them from enforcing a city ordinance which provides for licensing and regulating motor vehicles carrying passengers for fares. A restraining order was issued when the action was begun, but upon an application for a temporary injunction the court sustained a demurrer to plaintiffs’ petition and denied their application.
The ordinance in question is an amendment of the one which was under consideration in Desser v. City of Wichita, 96 Kan. 820, 153 Pac. 1194. The amendment made a substantial reduction in license fees taxed against those operating motor vehicles, and it is provided that those operating the motor vehicles for hire shall not solicit or receive passengers on certain paved streets of the city, which it appears are the streets on which street railroads are operated, and those over which the principal traffic of the city is carried on. It provides that all streets other than those within the restricted zone whether paved or not might be traversed at will by the licensees.
The contention of plaintiffs is that the exclusion of motor vehicles from the streets of a particular section of the city is an invasion of their rights and deprives them of their property and the use of it, in violation of the constitution. It is further insisted that the regulation excluding plaintiffs from soliciting or receiving passengers in and near the business center of the city and upon the streets over which the street railroad was operating is so unreasonable as to be invalid.-
Apart from an objection as to the title of the ordinance, and the manner in which it was passed, the points made and considered as to the validity of the ordinance are substantially the same as were presented and considered in Desser v. City of Wichita, supra. It was contended there as here that, the regulation practically drove plaintiffs from the streets of the restricted zone and gave a monopoly of the business to the streetcar company, and was manifestly passed for the benefit of that company. It was there held that it was competent for the city to regulate the use of the streets and adopt any measures necessary to the protection of the traveling public, and to that end it might extend privileges to those using one means- of transportation and exclude those employing other means. This distinction is riot made merely to benefit one utility and exclude the other, but as the opinion in the Desser case shows, it is permitted only on the theory that it will benefit the public. The fact that a measure passed for the public welfare may incidentally benefit the street-railway company does not affect the validity of the measure. If continuous and adequate transportation in the city can best be secured by extending privileges to one utility and restricting the service of another, the granting to one and withholding from the other cannot be regarded as an unlawful discrimination. On this question it has been said:
“The right of a citizen to travel upon the highway and transport his property thereon, in the ordinary course of life and business, differs radically and obviously from that of one who makes the highway his place of business and uses it for private gain, in the running of a stage coach or omnibus. The former is the usual and ordinary right of a citizen, a common right, a right common to all, while the latter is special, unusual and extraordinary. As to the former, the extent of legislative power is that of regulation; but, as to the latter, its power is broader, the right may be wholly denied, or it may be permitted to some and denied to others, because of its extraordinary nature. This distinction, elementary and fundamental in character, is recognized by all the authorities.” (Ex Parte M. T. Dickey, 76 W. Va. 576, 579.)
In Greene v. City of San Antonio, (Tex. Civ. App.) 178 S. W. 6, the court in considering a jitney ordinance remarked:
“No man has the right to use a street for the prosecution of his private business, and his use for that purpose may be prohibited or regulated as the state or municipality may deem best for the public good.” (P. 7.)
(See, also, Thielke v. Albee, 76 Ore. 449; Cummins v. Jones, 79 Ore. 276; Gill v. City of Dallas, [Tex. Civ. App.] 209 S. W. 209.)
It is argued, that it stifles competition, but competition between utilities serving an urban community may be impractical and injurious to the public. If the maintenance of two systems of transportation, where one is sufficient to accommodate the public, makes the operation of both unprofitable with the result that they .could not provide proper equipment or furnish adequate service to the public, and both were heading towards bankruptcy, there would be good reasons for the city to select the one best able to furnish adequate service and give it an exclusive privilege. In such cases regulation is deemed to serve a better purpose than competition. (Schaake v. Dolley, 85 Kan. 598, 118 Pac. 80.) It was also held -in the Desser case that whether the public welfare would be best subserved by extending privileges to the street railway company and withholding them from those operating jitneys, was a legislative and not a judicial question. It belonged to the city commission to determine the course which would best subserve the public interest, promote the convenience, safety and welfare of the traveling public, and would assure continued and adequate service. Interference by the court with the determination is not" permissible even if it should think that the decision had not been wisely made. That would be an exercise of a legislative function and the substitution of the court’s opinion for the discretion and judgment of the tribunal vested with such discretion and power. (City of Emporia v. Railway Co., 88 Kan. 611, 129 Pac. 161.)
The decision in the Desser case is controlling and it is deemed unnecessary to repeat the arguments therein or to refer to the numerous authorities there cited. In the decision of this case the trial court took the opinion in that case as a guide, and its application was well stated by the learned judge. Among other things he said:
“But the court’s work in deciding the question has been easy, for the reason that the principles on which the decision must rest have already been laid down by our own supreme court, as well as many other courts of last resort.”
After quoting at some length portions of the opinion in the Desser case the court proceeded:
“Further quotations might be added but the above are sufficient from which to deduce the principle of the case. Matters of municipal transportation are matters of public interest and the rights of an individual in conducting such business are subservient to that public interest. The right to determine what will best serve the public interest' rests with the legislative branch of the municipal government and it is primarily the judge of what will best serve that interest subject- only to that fundamental test which rests at the very foundation of all our law, the test of reasonableness. That competition between public utilities performing the same service even though in a different manner is not necessarily ‘the life of trade’ as laid down in the ancient maxim but may result in the impairment or total destruction of transportation.' That the maintenance of the street-car lines is necessary for the public interest and that the curtailment of destructive competition may be necessary to preserve that service. That the legislative branch of the municipal government acting honestly in deciding that question (and no fraud or bad faith is charged in this case) is the judge of the means and the courts will not interfere if the means adopted are reasonably calculated to promote that end and do not violate the fundamental law. These are some of the principles that may be deduced from the holding and language of the Desser case and they are controlling here.”
It is argued that the provisions of the ordinance are more than regulatory and are in fact prohibitory in their character. It may be said that all regulation has prohibitive features, and for the convenience and protection of the public, restrictions of that kind may be imposed, and such restrictions are not inaptly termed regulations. It will be observed, however, that under the ordinance the plaintiffs were at liberty to operate in certain sections of the city under regulations which forbade them to select or receive passengers in the central and crowded sections of the city where the lines of the street railroad are laid. In the judgment of the determining authority, the continuance of efficient transportation in the city and the convenience and welfare of the traveling public required such limitations, and it cannot be said that the commission acted unreasonably or that it transcended its authority in the enactment of the ordinance. It may be, as suggested, that the trend of the times indicates that the days of transportation by street cars over fixed tracks in the streets of cities are numbered, and that the system will soon be supplanted by the more mobile one of carrying passengers in motor vehicles. Each system has its advantages; but the power and discretion of determining whether one would be more advantageous to the public than the other, or whether the public interest warrants the employment of both kinds of service, each functioning in different districts of the city, belong in the legislative field into which the court may not enter.
There is a contention that the ordinance is defective in that it does not set out the entire ordinance which was amended. It does set forth the complete section of the ordinance as amended and specifically repealed the old section. This was sufficient. (Gen. Stat. 1915, § 1662; Reynolds v. Board of Edu cation, 66 Kan. 672, 72 Pac. 274; Hicks v. Davis, 97 Kan. 662, 156 Pac. 774.)
It is also contended that the title is defective in that it contains more than one subject, and that the subject of the ordinance is not clearly expressed in it. The title of the amendatory ordinance recites that it is an amendment of section four of the original ordinance, which of itself is sufficient, but it goes further-and sets out the title of the ordinance amended. In doing so a slight verbal inaccuracy occurred in the quotation, but the title clearly indicates the subject of legislation and accomplishes the purposes for which titles to legislative acts are required. The title of the original ordinance to which the amended one refers is:
“An ordinance regulating the use of the streets of the city of Wichita by motor vehicles carrying passengers on the streets of the city of Wichita .for hire, licensing same and prescribing penalties for its violation.”
It will be observed that all of the provisions named in the original ordinance are closely related and form a single and. comprehensive subject, and as we have seen the prohibitive-features of the ordinance are not so dissimilar and discordant, as to constitute two distinct subjects. Within the liberal rule employed in interpreting titles the prohibitory provisions come fairly within the -term regulation.
Finding no error in the record, the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Two actions in replevin were brought by the First National Bank of Barnard, against Jesse C. Venard and Rose Hani Venard, one to recover possession of tools and accessories used by Venard- in conducting a garage and the other to recover an automobile. The plaintiff claimed the possession of the tools and appliances and accessories under a chattel mortgage, which was not signed by Mrs. Venard, and she defended on the ground that the property was exempt under the following statutory provision:
“The necessary tools and implements of any mechanic, minor or other person, used and kept in stock for the purpose of carrying on his trade or business, and in addition thereto, stock in trade not exceeding four hundred dollars in value.” (Gen. Stat. 1915, § 4700, subdiv. 8.)
The verdict of the jury was in favor of the defendant, Rose Hani Venard, of which no complaint is made, but error is assigned on the action of the court in adjudging that defendant should have judgment for the value of the property instead of rendering a judgment in the alternative giving the plaintiff the option of returning the property wrongfully taken.
In her answer Mrs. Venard alleged that she had taken possession of the property under a mortgage executed to her prior to the commencement of the action, and that plaintiff had wrongfully seized and converted the same to its own use. She did not ask for a return of the property but prayed judgment for the value of the property so converted. The statute relating to a judgment in replevin provides:
“In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession or for the recovery of possession, or the value thereof in, case a delivery cannot be had, and for damages for the detention. If the property has been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof in case a return cannot be had, and damages for taking and withholding the same.” (Gen. Stat. 1915, § 7077.)
Ordinarily judgments in replevin are rendered in the alternative, and in an early case it was held that:
“When the property has been delivered to the plaintiff, and the defendant claims a return thereof, if the judgment be for the defendant, it must be in the alternative for a return of the property or for the value thereof in case a return cannot be had.” (Hall v. Jenness & Cohen, 6 Kan. 356, syl. ¶ 5.)
The statute, as will be observed, is not mandatory in requiring a judgment in the 'alternative,- but it provides that it may be so rendered. It depends upon the issues formed and the circumstances of the case whether an alternative judgment is necessary. It would be idle to provide for the return of property shown to have been destroyed or which could not be returned in specie, and other-instances may be conceived of where the order of a return would be futile. It has been held that a judgment for plaintiff for the value of the property without the alternative was not erroneous where the defendant retained the possession of the property and had placed it beyond his control and power to return it. (Clouston v. Gray, 48 Kan. 31, 28 Pac. 983.)
In another case it was held that where a mortgagee seized property under a writ of replevin and retained possession of the same up to the time a judgment in his favor was rendered, there was no necessity of rendering an alternative judgment. (Colean v. Johnson, 82 Kan. 655, 109 Pac. 403.)
In still another case where the plaintiff had taken and converted a stock of goods to its own use, the judgment in favor of the defendant which had a lien on the goods was not in the alternative, but only for the value of the interest held by the bank, and upon review it was held that as the plaintiff had taken and converted the goods to its own use there was no substantial error in thé judgment. (Lehman-Higginson Grocer Co. v. McClain, post, p. 20, 64 Pac. 1029.)
As we have seen, the statute is permissive, leaving it to the court to determine whether established facts and justice require the rendition of an alternative judgment'; and, as authorities cited by plaintiff show, there are cases-in which a refusal to enter such a judgment would be material error. Our statute broadened the common-law action in replevin, adding the cumulative remedy of giving the party from whom property is wrongfully taken and detained the right to ask the value of such property. It is a provision for the benefit of the wronged party and not for the one who commits the wrong. This feature of replevin was considered in Johnson v. Boehme, 66 Kan. 72, 71 Pac. 243, where an action for conversion after a judgment for costs in a prior action for replevin without more had been rendered in favor of the defendant. It was there said:
“It will be noted that the language of the statute is permissive' only. Judgment may be had. We think this leaves the matter entirely optional with the defendant as to whether he will take this additional order and judgment or leave it to the result of some subsequent action. The right to have value fixed was not given to the failing, but to the prevailing party, and was in his interest. He may be prepared to go into this question in the replevin action, or he may not. He has had his property wrongfully taken from him. It scarcely lies in the mouth of a wrong-doer, when sued in a subsequent action, to say that the plaintiff did not take all of the relief to which he was entitled in the former case.” (p. 74.)
After discussing the nature of the remedy afforded by the code, giving the prevailing party a right to the return of the property or to the value of it, it was stated that:
“This is a new remedy given him, and it is well established that in such cases the one on whom such new remedy is conferred may elect which course he will pursue. He need not avail himself of the new unless he chooses so to do, and, if he does not, he is not estopped from pursuing the old.” (p. 75.)
The plaintiff, as the jury had found, was the wrongdoer. It wrongfully seized the property and has deprived the defendants of the possession and use of it since July, 1918. It is hardly in a position to insist that the defendants shall take the property so wrongfully withheld in its present condition. At least it may be said that no substantial error was committed in adjudging that the plaintiff shall pay the value of the property which it has wrongfully withheld for so long a time.
Defendant contends that the automobile was likewise exempt and that it should have been awarded to her. She had a subsequent chattel mortgage on the automobile and did not join in the execution of the one given to the plaintiff. It is insisted that the car was used by Jesse Venard as a service car and was necessary in carrying on his garage business. Most of the testimony was to that effect, but in answer to a special question the jury found that while he used the car to some extent in connection with his business, such use as he made of it was not necessary to the proper conduct of his business. As the evidence is presented it would seem that the jury might properly have found that the car was necessary in the conduct of the business of a garage, but it cannot be said that the finding is without any support.
However, there is another reason for upholding the judgment awarding the possession of the automobile to the plaintiff. While Mrs. Venard did not join in executing plaintiff’s mortgage, it appears that the money for which the mortgage was given was borrowed to pay for the automobile, and her husband acquired it subject to a lien for the purchase price. The lien preceded and was paramount to any exemption right gained by her.
It is true that the plaintiff did not sell the car to the defendant, but the money was furnished by the plaintiff to purchase .it, and the mortgage was given to plaintiff as security for the purchase money. The mortgage must therefore be regarded as a purchase-money mortgage. It has been said:
“As a general rule, a mortgage given to secure purchase money is none the less a purchase-money mortgage because executed to one who lends the purchase money rather than to the vendor of the property.” (23 A. & E. Éncycl. of L., 466.)
The purchase of the car and the execution of the security were parts of one transaction and the defendant took the automobile charged with a lien for the purchase money. This lien existed before Mrs. Venard obtained any interest in the property or any right to claim that it was exempt. Her signature was therefore not necessary to the validity of the mortgage. In commenting on the question involved it was said:
“As a matter of theory it may be conceived that the whole title first passes to the mortgagor, and that out of that title he then carves a lien for the benefit of the mortgagee. But in fact there is no instant of time in which he is the absolute owner, in which any right of the wife' can attach, or in which the property can be affected with the quality of exemption as against the vendor — in fact, he takes it charged with the lien; the transaction is substantially the same as though the mortgagee in terms conveyed subject to a lien, or reserved the title as security for the payment of the purchase money. The principle is the same as that by which purchase-money real-estate mortgages are given precedence over existing liens.” (Boggs v. Kelly, 76 Kan. 9, 11, 90 Pac. 765.)
In a later case in which a mortgage upon an automobile- was under consideration, it was said:
“The article of the largest value included in the mortgage was an automobile. This was held to be exempt because the plaintiff was a physician, and the automobile was used in carrying on his business. The money secured by the mortgage was borrowed for the purpose of paying for the automobile, and was so used. If the mortgage should be treated as security for the purchase money, the rights of the wife did not attach to that article, and her signature to the mortgage was not necessary. (Boggs v. Kelly, 76 Kan. 9.) This principle has been applied to mortgages given to third persons, who furnish the money to purchase the property; where it was so furnished and applied as a part of the same transaction. (1 Jones, Mort., 6th ed., § 472;. 6 Cyc. 999, note 69; Strickland v Minnesota Type-Foundry Co., 77 Minn. 210.) ” (Beach v. Fireovid, 84 Kan. 357, 360, 114 Pac. 206. See, also, to the same effect Bank v. Shepard, 105 Kan. 206, 182 Pac. 653.)
The plaintiff was therefore entitled to the possession of the . automobile, and it follows that the judgments in both cases must be affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The action was one to establish and enforce a trust in real estate. Plaintiifs are the parents of defendant. In the early 90’s the father, then 65 years of age, owned a residence in the city of Lawrence and 400 acres of pasture lands in Greenwood county. The petition alleged that about that time, the father becoming financially involved, it was orally agreed at a family council that he should deed all his property to the defendant, then a few months less than 21 years of age, to be held by him together with the rents and income of the property in trust for the parents and with the understanding that during their natural lives they should occupy the dwelling house and that the son should keep it in good repair, pay all taxes, liens and incumbrances against all the property, and support his parents as long as they lived; that absolute deeds of conveyance were made to the defendant for the property; and that he had received and appropriated the rents and profits of the farm lands and had not at all times properly supported his parents, and had recently repudiated his promise to hold the property in trust for them by advertising the homestead for sale as his own and against their wishes and contrary to the trust agreement.
The defendant ■ answered, admitting the execution of the deeds, alleging that he paid a fair price and consideration for all the property which was of a value not to exceed $5,000 at the time the conveyances were made and was subject to mortgages and tax liens. He denied the existence of any trust agreement or understanding as claimed in the petition, and asserted that he voluntarily began to help support his parents in 1896 and had practically supported and cared for them since that time; that he did this of his own free will and because the plaintiifs were his parents and not because of any contract. The answer alleged that there had never been any trouble between the parties until the defendant announced his intention of marrying, and that no question was ever raised by plaintiifs concerning his right to the property until a married sister, (who left her husband in Massachusetts and came to Lawrence about four years prior to the beginning of the suit) made trouble between the defendant and his parents. He stated further that in substance and effect he had lived up to the alleged terms and conditions of the contract pleaded by the plaintiffs, and, expressly denying that' any such contract existed, further alleged that should the court determine to the contrary, he was willing to continue to support his parents, but his parents only. The answer pleaded as a further defense the general statutes of limitation.
The trial court made findings of fact, in substance, as follows :
1. The plaintiffs are husband and wife. The husband is 94 years of age, and the wife is 87. The defendant is their son. They have one other child, a daughter, who is of full age and married.
2. In the late 70’s, M. C. Rice, the father, owned property in the statei of New York which he exchanged for a home in the city of Lawrence, now occupied by plaintiffs, and for 800 acres of land in Greenwood county, Kansas, and shortly thereafter with his wife and two children removed to Lawrence. In a few years he had lost half of the 800 acres, and, while not insolvent, found himself financially embarrassed. The taxes on the property were delinquent; some judgments were rendered against him; and generally he was not making a success. This condition of affairs greatly disturbed, the entire family and the question was a matter of frequent and earnest consideration by the family. Witnesses for the plaintiffs referred to these consultations as “family councils.” While perhaps no direct and complete arrangement was arrived at, at any one time, still their discussions finally crystallized into this conclusion : That the entire holdings of Mr. Rice be turned over to his son, the defendant in this action. The son was then perhaps twenty to twenty-one years of age, and it was agreed that he should manage the property, pay off the indebtedness as rapidly as he could, hold the property during the lifetime of his father and mother, support the family, and at the death of the father and mother, divide the property ^ equally between himself and his sister. This the young man undertook to do, and deeds were accordingly executed. The indebtedness at that time was in the neighborhood of $2,000, and the young man had not then completed his education. In addition to his studies, he was a tutor and earned a small amount of money in this way, and most faithfully devoted himself towards the liquidation of this indebtedness and to the carrying of the load, which was considerable of a burden.
3. In 1913 the defendant, who was then about 35 years of age, announced his intention to marry. The mother and sister objected because they seemed-to feel that he should remain at home and continue to be the head of the family. The defendant married and moved to a home of his own, and at all times up to the beginning of this suit has contributed towards the support of his father and the family. The sister meanwhile had married and left the home but she has returned home during the last two or three years without her husband. The evidence does not show whether the separation from her husband is permanent or merely temporary.
4. During the years since the land was deeded to the defendant he has expended in excess of what he has received, in paying indebtedness, in improving the land and the home, and in support of the family, about $5,155. This was expended with the full knowledge and consent of the other members of the family and in harmony with the arrangement made immediately prior to the deeding of the property to the defendant.
5. About the time of the defendant’s marriage, he requested his mother to live with some other relative of hers and to permit him and his wife to keep the homestead. The mother declined to do this and just before the commencement of this action, the defendant advertised the home for sale, his explanation being that he thought he could dispose of the property and procure another better fitted for the father and mother during their old age. His action in this respect was the immediate cause of the suit being filed. The defendant upon the trial of this action, denied that there was any trust arrangement made at the time the deeds were executed and delivered, claiming that the indebtedness was so near the value of the property that his father and mother despaired of saving anything from the wreck, and turned the whole matter over to him to hold and own and pay out if he could.
The court made the following conclusions of law:
1. The arrangement between the father and mother and the defendant, leading up to and including the execution and delivery of the deeds in question, constituted the defendant a trustee and the transaction a trust, resulting from the arrangement, and this trust should be administered under the direction of the court.
2. The defendant, having expended in excess of what he has received in the,execution of the trust up to the present time $5;155, should be repaid that amount out of the property, and should have a lien upon all of the property for the security of its payment, but to enforce that payment at this time would probably result in the total destruction of the object of the trust, namely, to secure the old people support during the remainder of their lives. The enforcement of the payment of this amount is now postponed until the death of the father and mother, but it should bear 6 per cent interest from this date.
3. If the defendant shall signify his willingness to continue the trust through to the end without compensation, the court will permit him so to do; otherwise the court will appoint another as trustee.
The court ordered the defendant to file a report within ten days showing what money he now has in his hands available for the delinquent taxes, when further orders would be made by the court. It was ordered that in the execution of the trust the entire net proceeds from the property should be paid to plaintiffs for their support and the court would make subsequent orders with reference to any excess over the amount necessary to support the father and mother. The defendant was required to pay the taxes each year promptly without further order and the costs of the litigation from the proceeds, of the property at such times as the court might direct.
The defendant appeals.
Applying a liberal construction to the petition, we think it was not subject to demurrer on the ground that it showed that the cause of action was barred by the statute of limitations. While there are some averments which, taken literally, would indicate that plaintiffs were relying upon an absolute failure, of defendant to furnish any support whatever to them, and upon the fact that he repudiated the trust immediately after the execution of the conveyances, yet the petition shows that the principal inducement for bringing the action was that a few days prior thereto the son had advertised the home for sale as his own. As a matter of fact, no statute of limitations was a bar. The answer alleged and the evidence showed that from about the time the first conveyances were executed the defendant contributed to the support of his parents and that from 1896 to the commencement of the action he had furnished practically all their support. In their testimony both parents belittled the amount of contributions made by the son towards their support and caring for the property. The mother’s admissions showed that she knew very little about the source of the funds which the son advanced to pay tax liens and other incumbrances on the property in Greenwood county and upon the residence property. The father claimed that he furnished the son all the money which the latter advanced to pay these claims but he was not able to corroborate his statements by checks, drafts or other memoranda. He was unwilling to concede that he was not a success in a business way and blamed the family for inducing him to convey the property to the son. The trial court doubtless made allowances for the defective memory caused by the infirmities of age. The court believed the statements of the defendant as to the expenditures made by him. In the course of the trial, the court said:
“But I am satisfied that this young man has paid out this money there, from his books, running away back in the years. They are not new books. It is really pathetic to see how the young man pieced out his small income, and kept track of it, too. A few pennies here and a few dimes here, and to my mind, he is entitled to a good deal of credit for what he has done, and his father and mother are entitled to a good deal of credit, too. It is just one of those occasions where changed conditions late in life, people fail to fit in and take up the work they laid down in another state and make a success of it. But this property must be devoted primarily to the comforts of these old people.”
The main contention is that the action cannot be maintained because of the statutory provision that “no interest concerning lands except such as may arise by implication of law shall be created, unless in writing.” (Gen. Stat. 1915, § 11674.) Nevertheless, we think sufficient facts were disclosed to support a finding of an implied trust which is excepted from the statutory rule above quoted. In Lehrling v. Lehrling, 84 Kan. 766, 115 Pac. 556, it was said:
“Trusts are often declared in transactions between persons standing in confidential relations, as parent and child, that would not be implied between strangers.” (p. 770.)
The opinion quotes the following extract from 1 Perry on Trusts and Trustees, 6th ed., § 112:
“Implied trusts are those that arise when trusts are not directly or expressly declared in terms, but the courts, from the whole transaction and the words used, imply or infer that it was the intention of the parties to create a trust. Courts seek for the intention of the parties, however informal or obscure the language may be; and if a trust can fairly be implied from the language used as the intention of the parties, the intention will be executed through the medium of a trust.”
The whole question is discussed in Silvers v. Howard, 106 Kan. 762, 190 Pac. 1, where it was ruled:
“If a fiduciary relation exist between the grantor. and grantee in a deed absolute, and the deed be induced by the relation for a trust purpose, breach of the confidence reposed may amount to constructive fraud, from which á trust may arise by implication of law.” (Syl. ¶ 4.)
It was held in the opinion further that the agreement, while not sufficient, standing alone, to raise the implication of a trust, may be considered by the court as one of the circumstances and that it may aid implication of the trust. There was evidence in the.present case to warrant a finding that a confidential relation existed between the parties to the conveyance and, moreover, that such relation induced the making of the agreement. While it has been held that the fact that a conveyance is made by a parent to a child without consideration is not, itself,- sufficient to raise a trust by implication, yet the fact that there was a confidential relation between the parties is one of the facts to be considered, and where the confidential relation is shown to have induced the transaction and there has been a breach of the confidence reposed, the courts may imply or infer an intention of the parties to create a trust. (Lehrling v. Lehrling, supra.) It is said, however, that the court made no such finding. So far as the record discloses there was no request for specific findings and therefore upon the undisputed facts it must be held that a finding that a fiduciary relation had existed between the parties is included in the general judgment. For reasons not recited in the record it appears that the case had to be tried in one day, and that the judge expressed his regrets that more time-had not been allowed and that there was no opportunity left for argument of counsel. After the court made the findings of fact and conclusions of law, the defendant asked that certain other facts be found and that certain findings be set aside. The motion was overruled.
The court found that the defendant had advanced $5,155, and allowed him a general lien upon all the property for that amount with interest at 6 per cent from the date of the judgment. It is clear, in our opinion, that he is entitled to interest from the time the various sums of money were advanced. In another respect the judgment must be modified. It is conceded that the defendant, several years ago, purchased a lot 25 feet in width adjoining the home place in order to prevent the erection of a church building that would shut off the light and air from the residence. The plaintiffs conceded they had no claim to any interest in the strip and they announced their willingness to permit defendant to retain the title thereto. Beyond question this strip of land was purchased for the purpose of enhancing and protecting the value of the residence property. There is no question about the defendant’s good faith in making the purchase. The evidence showed also, that standing by itself, it is of little value. The defendant was allowed for repairs and improvements made on the house itself and, in our opinion, is justly entitled to have included in his lien the amount he paid for the purchase of this ground together with interest from the time the payment was made.
There is a provision in the judgment that defendant’s lien shall not be enforced against the property during the lifetime of either of the parents. This should be modified so as to read “without the further order of the district court.” The decree provides that the court shall have jurisdiction of the trust for the purpose of making whatever orders may be found necessary from time to time, and in the future upon proper showing the court may conclude that the interests of all parties would be subserved, by a sale of the residence or other property.
Thé judgment will be modified in these respects, and as modified, affirmed. | [
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The opinion of the court'was delivered by
Burch, J.:
In a petition for rehearing it is urged the decision rendered, holding it was not prejudicial error, in a trial for rape, to omit an instruction on the subject of attempt to rape, when none was requested (The State v. Davidson, 108 Kan. 310, 195 Pac. 861), conflicts with the decision in the case of The State v. Langston, 106 Kan. 672, 189 Pac. 153. In that case the defendant was charged with rape of a small and deli cate child only eleven' years old, and the opinion concluded as follows:
“In a prosecution for statutory rape where there was evidence tending to show no more than an attempt, it was held to be the duty of the court to instruct the jury as to the law of attempt to commit the offense charged, although the defendant had not asked for such an instruction. (The State v. Grubb, 55 Kan. 678, 41 Pac. 951.)” (p. 676.)
The petition for rehearing asserts this amounts to an affirmance of the doctrine of the Grubb case, as opposed to the doctrine of the Winters case cited in the original opinion, and asserts the decision in the pending case creates great confusion in the law.
The opinion in the Langston case does not affirm the specific doctrine of the Grubb case on which the petition relies, is not in conflict with the opinion in the Winters case, and does not create confusion in the law, if attentively considered. The pertinent portion of the opinion in the Langston case begins as follows:
“A more serious objection is made to the rulings of the court in charging the jury. The defendant asked for an instruction relating to attempt to commit rape, but no instruction on that branch of the case was given.” (p. 675.)
Therefore, the subject of failure to instruct, without request, on the subject of attempt, was excluded from consideration and decision.
Following the introduction quoted, the testimony was discussed in detail, and the discussion concluded with this statement:
“In view of the testimony, it was the duty of the court to have instructed the jury on the lower grade of the offense.” (p. 676.)
The Grubb case was then cited, merely to emphasize, as the Grubb case did, the distinction between attempt and completed offense, and the necessity for instructing the jury clearly with reference to the evidence required to convict in a prosecution for statutory rape.
The petition for rehearing is denied. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff recovered a judgment declaring a deed held by the defendant to real property to be a mortgage and requiring him to convey the property to the plaintiff on the payment of that mortgage and of a first mortgage on the property. The defendant appeals.
Findings of fact and conclusions of law were made, as follows :
“In 1909 plaintiff Myers bought the land in controversy of one J. F. Keith for an agreed consideration of $12,000. He paid Keith $1,000 in cash and assumed á $6,000 mortgage which was on said land in favor of Umstead and gave a mortgage to Keith for $5,000 balance in payment for the land. Myers, with his family, entered into possession of the land in question and has remained in possession and lived thereon with his family ever since, claiming to he the owner of it, subject to the incumbrance of $5,000 on account of the Keith mortgage and the $6,000 Um-stead mortgage, and accumulated interest thereon.
“About five years after the purchase of said land by Myers from Keith, and in December, 1914, Keith approached Myers with a proposition to deed the farm back to him and purposed to give him, Myers, a contract to reconvey, Keith’s purpose and stated reason for entering into such an arrangement was to avoid the payment of taxes on the $5,000 mortgage held by him.
“On December 15th, 1914, in pursuance of said proposition, Myers deeded the land to Keith and Keith released the $5,000 mortgage and returned the notes except one of $600 or $700 given as interest on the $5,000 mortgage, which latter note Myers afterward paid to Keith. Keith, at the time of this transaction, gave Myers an agreement to reconvey, upon the payment of the $5,000 to Keith and the $6,000 to Umstead and the taxes.
“The date for the expiration of said contract was fixed at January 1, 1917. The agreement was unilateral, being signed only by Keith. Myers fulfilled the terms of the contract up to the time named therein for its termination. Keith afterward renewed the Umstead mortgage for one' year, when it fell due, and paid it at the expiration of the year. Myers has paid all the taxes on the land in question to date and no offer has been made to repay him for the same. He also paid interest on the Umstead mortgage up to the time of its renewal by Keith.
“Time was not of the essence of the contract, nor did the parties so regard it. Keith had orally agreed with Myers that'he might complete the terms of this contract at any time, which would mean a reasonable time.
“After the date set for the expiration of the contract and on January 28th, 1917, Keith wrote Myers expressing the hope that he could raise the money and pay him off. This was in response to a letter from Myers to Keith regarding the payment of the balance of the money.
“Myers wrote Keith letters at intervals regarding the payment of the indebtedness up to October 9th, 1918, but to the letter of that date Keith made no answer. In a letter by Keith to Bruner, written March 14th, 1917, regarding the Umstead mortgage and the Myers indebtedness on the farm Keith wrote to Bruner to secure an extension of the Um-stead mortgage, and expressed a doubt as to whether the arrangement of renewing this mortgage would suit Myers, and states that he would like to have his, Keith’s money, but could wait if he could not get it at that time.
“On April 21st, 1917, Keith again wrote Bruner, asking him to find out about the taxes, stating that Jake (Myers) was to pay them and the interest but had ‘fell’ down on the interest and had probably not paid the taxes.
“On April 16th, 1918, Keith wrote Frank M. Sayre concerning this land and said: ‘I have been indulging Jake (Myers) and waiting on him, thinking he would find a buyer for the place and make a little money for himself but I have lost hopes of him doing anything. He will promise and not do anything.’
“Keith never notified Myers that we would claim a forfeiture of the contract under the contract of December 15th, 1915, nor commenced ,any action to foreclose the Myers interest in'the land.
“Keith claimed at the trial that Myers had been his tenant ever since the execution of the contract. Myers denied this and testified that the question of tenancy never was broached to him except one time and that at that time he told Keith he would not occupy the land as a tenant and refused to execute the lease and no lease was ever made. Myers was not at any time during the period mentioned herein a tenant of Keith.
“In the late summer of 1918 Mills entered into negotiations with Myers for the purchase of the land in question as the owner of the same, through his brother Harry Mills. The land was looked over and the defendant with his brother, came a second time to look the land over, but did not talk to Myers at the time about the purchase. The land was priced on the first occasion by Myers to Mills and the second visit followed as a result of this conference.
“Mills had no further negotiations with Myers regarding the matter but on the 12th day of November, 1918, entered into a contract and received a deed from Keith to this land.
“Mills knew, at all times during all of these negotiations, that Myers was in possession of the land and claimed to be the owner thereof, and that he was living thereon with his family. Mills not only had notice of the occupancy of the plaintiff Myers of this land, but also had notice of his claim of ownership and bought the same with full knowledge of these matters.
“The deed to Keith was, in effect, a mortgage to secure the payment of the balance due. Myers tenders performance and is refused.
“Under the circumstances of this case Myers is entitled to a conveyance of this real estate to him from defendant Mills on the payment of the $5,000 and the $6,000 incumbrances, with interest thereon. Upon such payment to defendant Mills, or into court, said Mills should convey the land to said Myers, and upon his failure so to do the decree of this court shall operate as a conveyance of the land to plaintiff Myers, and the plaintiff Myers is entitled to recover his costs herein.”
One proposition argued by the defendant is that the petition did not state a cause of action. This argument is based on the contention that the writing signed by J. F. Keith was merely an option, unilateral in its nature, and was not a defeasance.
The petition alleged that the plaintiff purchased the land in controversy from J. F. Keith and, in consideration, assumed and agreed to pay a mortgage on the land for $6,000, gave to Keith a mortgage thereon for $5,000, and paid him $1,000 in cash. The petition also alleged—
“That thereafter, and on the 15th day of December, 1914, a contract was entered into between this plaintiff and the said J. H. Keith, whereby the indebtedness evidenced and secured by said mortgages should be evidenced by an instrument in the form of deed of conveyance and a contract to reconvey; that said agreement was partly oral and partly in writing; that the oral part of said agreement was that if this plaintiff would execute and deliver a paper in the form of a deed for said land to said J. F. Keith, that the said J. F. Keith would satisfy of record the said mortgages upon said land, and would release said land to this plaintiff when the indebtedness evidenced and secured by said mortgages was paid, to said J. F. Keith; that said paper was so executed and delivered. That said paper, or a copy thereof, is not in the possession of this plaintiff and for that reason a copy is not attached to or made a part of this petition, but the plaintiff alleges that the same is of record in the office of the register of deeds of Chase county, Kansas. That as evidence of said agreement to release said land upon the payment of said indebtedness, the said J. F. Keith executed and delivered to this plaintiff his certain writing; in words and figures, as follows:
“ ‘This indenture made this 15th day of December, 1914, by J. F. Keith,, of Butler County, Kansas, to J. W. Myers, of Chase County, Kansas. That J. F. Keith agrees that if said J. W. Myers make payments as follows: One certain note due Jan. 1st, 1915, and is extended one year. And the interest on a certain $6,000 Six Thousand Dollar mortgage to E. H. Umstead as due and all tax levied on and as due, all on the East Half of Section (36) Thirty-six in Township (22) Twenty-two in Range (5) Five East of the Sixth P. M., Chase County, Kansas, except one acre off of the northeast corner, payments is as rents on said lands. And if J. W. Myers, pays or cause to be paid all the above and assume the Six Thousand Dollar mortgage given to E. H. Umstead and pays or cause to be paid to J. F. Keith or his authorized agent Five Thousand Dollars on or before January 1st, 1917. Said J. F. Keith agrees to relinquish all rights and title to said land that is in him, to said land. If said J. W. Myers fails to pay any of the above covenants when due, then this contract is no good and at an end.’ ”
The petition further alleged that the plaintiff was in possession of the property; that he was ready, able and willing to pay the debts secured by the mortgages; and that the defendant, who purchased the property from Keith, refused to accept the money and Refused to reconvey the property to the plaintiff.
When considered in connection with the facts alleged in the petition, it must be said that the instrument signed by Keith did not give an option to purchase the land, but was a defeasance in a mortgage given to Keith by the plaintiff, the owner of the land. The petition stated a cause of action.
At the close of the evidence of the plaintiif, the defendant demurred thereto; that demurrer was overruled; the defendant complains of that ruling. The evidence of the plaintiif established sufficient of the facts found by the court to justify the conclusion that the deed given by the plaintiif to Keith and the writing given by Keith to the plaintiif constituted a mortgage to secure the payment of the $5,000 that was to be paid by the plaintiif to Keith. There was no error in overruling the demurrer to the plaintiff’s evidence.
The defendant complains of some of the findings made by the court. One of these concerns Keith’s purpose in asking the plaintiff to make a conveyance of the land to Keith. Another concerns the time for the completion of the contract, and another the character of the occupancy of the land by plaintiff. An examination of the evidence and of these findings reveals that .each finding was amply supported by evidence. Another finding, about the correctness of which there may be some question and of which complaint is made, concerns the plaintiff’s fulfillment of the terms of the defeasance up to the time named in it for its termination. The defendant contends that all of the interest on the $6,000 mortgage had not been paid by the pla’ntiff up to that time. Even if this finding were erroneous, it would not be sufficient to justify a reversal of the judgment for the reason that the conveyance to Keith and the' writing signed by him constituted a mortgage, and that, until foreclosure, the plaintiff would have the right to pay the $5,000 mortgage, notwithstanding the fact that the terms or conditions named in the defeasance apparently barred his right to make that payment. There is nothing in any of these findings to justify a reversal of the judgment.
The defendant complains of the exclusion of evidence. That evidence was presented on the hearing of the motion for a new trial, but it has not been abstracted. This court is unable from the abstract to determine what that evidence was and cannot say that its exclusion was sufficient to justify a reversal of the judgment.
The judgment is affirmed.
(Filed November 12, 1921.)
SYLLABUS BY THE COURT.
Redemption prom Mortgage Sale — Ability of Mortgagor To Make Payments Immaterial. In an action to enforce the right to redeem real property from a mortgage thereon, the ability of the mortgagor to make the payments at any particular time before the action is commenced, is immaterial, and a judgment giving the right to redeem will not be reversed for restricting cross-examination of the plaintiff on that question. | [
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The opinion of the court was delivered by
Johnston, J.:
In February, 1883, the boundaries of Hodge-man county Were changed by legislative enactment so as to embrace considerable territory that had theretofore constituted a part of the unorganized county of Gray, and which before that time was not subject to taxation. The Atchison, Topeka & Santa Fé Railroad Company owned several tracts of land in the territory attached, and in the spring of 1883 the assessors of Hodgeman county assessed this land of the company, and it was placed on the tax-roll, and a levy was made thereon by the county commissioners of Hodgeman county for the taxes of that year. The railroad company brought this action against the county treasurer and county commissioners of Hodgeman county, alleging that the assessment was made without authority, and that the taxes levied upon its lands were wholly illegal and void, and asked for an injunction to restrain the collection of such taxes. A temporary injunction was granted. Afterward the defendant filed a demurrer to the petition, which upon the hearing was sustained, and the injunction dissolved. This ruling is assigned for error here.
The validity of the tax is challenged by the plaintiff on the ground that the assessment of its land having been made in an odd year, it was not afforded a hearing or an opportunity to contest the justice of the assessment. We cannot concur in this claim. It is true that § 43 of the tax law provides for a biennial assessment of real property, but § 69 of the same law provides that—
“Each township and city assessor shall annually, at the time of taking the list and valuation of personal property, also take a list of all real property situated in the county that shall have become subject to taxation since the last previous listing of property therein, with the value thereof estimated agreeably to the rules prescribed for the listing and assessing of real, estate; . . . and -shall make return thereof to the county clerk at the same time he is required by law to make his return of personal property,” etc.
It is insisted that the board of equalization can only meet to equalize the assessment of real property in the even years when real property is regularly assessed, and therefore that the assessment of real property in the odd years provided by § 69 cannot be revised or equalized by the board. It is true that § 74 requires that there shall be a meeting of the board of equalization for that purpose on the first Monday in June of the even years, but it does not forbid a meeting at other times when there may be a necessity therefor. Section 73 reads as follows:
“The board of county commissioners of each county shall constitute a county board of equalization, and the county clerk shall be the clerk of said board.”
This provision is broad and general, and unless limitations are elsewhere prescribed, it would authorize the board thus constituted to equalize or correct the assessment of real estate at any time when proper notice had been given that such action could or would be taken. With respect to the equalization of the valuation of personal property, a limitation is prescribed in § 74, where it provides that—
“The board shall meet on the first Monday of June of each year and proceed to equalizé the valuation of the personal property of their county, and may adjourn from time to time for said purpose not beyond ten days from the first day of their session.”
Under this limitation it may well be-doubted whether the board can meet for the purpose of equalizing^ the personal-property valuations after the ten-days limit has expired. But when the legislature came to prescribe rules for the government of the board in regard to the time and manner of equalizing the valuation of real property, there was no such limitation made. The rules affecting real-estate valuations are found in the same section with the limitation mentioned. The fixing of the limit in the one case and the studied omission of such a provision in the other, indicates that the legislature did not intend to restrict the board in correcting and equalizing the valuation of real property to the meeting held on the first Monday of June of the even years. , Besides, by §75 it is made the duty of the county clerk to give a newspaper notice in May of every year that the board will meet on the first Monday of the following month, and that at such meeting all persons feeling themselves aggrieved can appear and have all errors in the return corrected. As has been seen, the return made by the assessor in the odd year embraces, in addition to the listing and valuation of personal property, an assessment of all real property that has become taxable since the regular assessment of such property the preceding year. The notice is not that the errors in that part of the return relating to the valuation of personal property will be corrected, but that all persons may appear and have all errors in the return corrected. These sections taken together furnish authority to the board of equalization to correct any errors in the assessment of real estate made under § 69 in the odd years. That being so, the plaintiff had an opportunity for a’ hearing, and to contest the fairness and justice of the assessment., The judgment of the district court will therefore be affirmed.
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Per Curiam:
We are satisfied with the law as declared by us in this case, ante, p. 66, and discover nothing to call for a rehearing.
The plaintiff is entitled to the enforcement of the contract made by him with H. C. Long. Mrs. Long is estopped from setting up her title to the land under the deeds from Long through Yedder to herself. Her contingent estate in the premises rests upon the ground that she is the wife of H. C. Long, and did not sign the written contract of April 22, 1881. If H. C. Long outlives his wife, there will be no contingent interest to contest. It is not necessary now to decide whether Mrs. Long or Mrs. Crockett is the holder of the contingent estate of Mrs. Long.
The motion for a rehearing will be overruled. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action in the nature of ejectment, brought by Oliver and Mary Meskimen against Moses Day, to recover forty acres of land. The defendant answered, claiming to be the legal owner of twenty-six of the forty acres, and disclaiming all title to or interest in the residue. Trial by the court, without a jury. The court rendered judgment that the plaintiffs recover two acres of the land in controversy, and decided that the other twenty-four acres belonged to the defendant. Each party was adjudged to pay its own costs. Upon the'trial, the plaintiffs proved to the court that a deed, alleged to have been executed by one Wab-se-qua, a Pottawatomie Indian woman, on September 22, 1877, to Mary Meskimen, one of the plaintiffs, and delivered to Oliver Meskimen, the husband of Mary Meskimen, was, after the same had been filed for record in‘the office of the register of deeds of Pottawatomie county, lost, and that it was not then in the possession or under the control of either of the plaintiffs, and could not be found, although diligent search had been made therefor. Thereupon, the plaintiffs offered in evidence the record of said deed from the office of the register of deeds of said county. The deed purported to have been acknowledged before one F. W. Kroenke, as notary public, but the certificate of acknowledgment was not authenticated with his official seal, or with any seal. The defendant objected to the record being read in evidence, on account of the omission of the seal. This ruling is complained of. Sec. 5, chapter 71, Comp. Laws of 1879, reads:
“ Every notary shall provide a notarial seal, containing his name and place of residence, and he shall authenticate all his official acts, attestations and instruments therewith.”
Sec. 15, of chapter 22, Comp. Laws of 1879, reads:
“The certificate of proof or acknowledgment as aforesaid, may be given under seal, or otherwise, according to the mode by which the courts or officers granting the same usually authenticate their official acts.”
Chapter 22, Comp. Laws of 1879, regulating the conveyances of real estate, provides that such conveyances may be acknowledged before a notary public; and §19 of that act reads:
■ “ Every instrument in writing that conveys any real estate, or whereby any real estate may be affected, proved or acknowledged, and certified in the manner hereinbefore prescribed, may be recorded in the office of the register of deeds of the county in which such real estate is situated.”
Sec. 387a of the code, Comp. Laws of 1879, provides that the books and records required by law to be kept by any register of deeds may be received in evidence in any court, and when any such recoi'd is of a paper or instrument authorized to be recorded, and the original thereof is not in the possession or under the control of the party desiring to use the same, such record shall have the same effect as the original. (Laws of 1870, ch. 87, §12.) The question therefore arises, whether the certificate of acknowledgment of the notary public was sufficient under the statute, without attaching his notarial seal thereto. We think not. As the deed was not properly authenticated, it was not entitled to be recorded. As it was not entitled to be recorded, the record thereof was not competent evidence. The lost deed purported to have been executed September 22, 1877, but it was not filed for record until May 21, 1883; therefore, § 28, chapter 22, Comp. Laws of 1879, does not apply, because that statute took effect October 31, 1868. Neither has §27, of said chapter 22, any application, and the decision of Williams v. Hill, 16 Kas. 23, to which we are referred, has reference only to copies of deeds which have been properly recorded. Since the decision in Simpson v. Mundee, 3 Kas. 172, the statute regulating the conveyances of real estate has been materially changed. (Comp. Laws of 1862, ch. 41, § 13; Comp. Laws of 1879, ch. 22, § 19; Wickersham v. Chicago Zinc Co., 18 Kas. 481; Wilkins v. Moore, 20 id. 538.) After the rejection of the record from the office of the register of deeds, the plaintiffs offered and were allowed to prove the contents of the lost deed. In this way, the court became possessed of all its terms and conditions, and therefore we do not perceive that the ruling of the court rejecting the record of the deed was very material in the case.
The only remaining question is that of costs. These the court divided. In such cases as this, costs follow the judgment, and plaintiffs were entitled to recover all their costs. The ruling of the trial court in this respect was erroneous. Sec. 589 of the code reads:
“Where it is not otherwise provided by this and other statutes, costs shall be allowed, of coux*se, to the plaintiff upoix a judgment in his favor in actions for the recovery of money only, or for the recovery of specific real or personal property.” (City of Empoma v. Whittlesey, 20 Kas. 17; Smith v. Woodleaf, 21 id. 717.)
If the defendant had disclaimed as to all of the land in controversy, excepting the twenty-four acres adjudged to belong to him, of coux’se he would have been entitled to recover costs. (Code, §590.)
The judgment below will be affirmed, excepting that the costs must be retaxed in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Houston, C. J.:
It is claimed by the plaintiff that the order directing the trial of this cause to be had in Douglas, instead of Wyandotte county, is void, and if not void, is at least erroneous. The order was based upon the affidavit of H. C. Long, one of the defendants, setting forth that —
“He was advised by his attorney that Hon. W. E. Wag-staff, the district judge, was a material witness for the defendants upon the trial; that he believed the advice to be true, and that he desired the testimony of the judge at the trial, and intended to procure the same if a change of venue was granted.”
Section 56 of the civil code reads:
“ In all eases in which it shall be made to appear to the court that a fair and impartial trial cannot be had in the county where the suit is pending, or when the judge is interested or has been of counsel in the case or subject-matter thereof, or is related to either of the parties, or is otherwise disqualified to sit, the court may, on application of either party, change the place of trial to some county where such objection does not. exist.”
The contention is that a district judge is not “disqualified to sit,” even if a material witness in 'a case, and that the affidavit upon which the order changing the place of trial to Douglas county was made was insufficient, in that it did not set out what the defendants expected to show by the judge, nor was it otherwise made to clearly appear that the judge was a material witness.
~We do not think the order of the court void. A judge is not competent as a witness in a cause tried before him, for this, among other reasons: That he cannot hardly be deemed capable of impartially deciding upon the admissibility of his own testimony, or of weighing it against that of another. It is now well settled that the same person cannot be both witness and judge in a cause. (1 Greenl. Ev., 12th ed., § 364; Ross v. Buhler, 14 La. 312; 2 Bouvier’s Law Dictionary, 12.) Therefore we think that where a judge is a maferja¡ anc[ necessary witness in a case, he is “disqualified to sit.” If the district court had overruled the application to change the place of trial upon the affidavit presented, we would unhesitatingly pronounce the ruling eminently correct, because it seems to ns that the true rule in such a case is, that such facts and circumstances must be proved by affidavits, or other extrinsic evidence, as clearly show that the judge is a material and necessary witness; and unless this clearly appears, a reviewing court will sustain an overruling of the application. (City of Emporia v. Volmer, 12 Kas. 622.) The affidavit, in this case, for the change of venue, should have disclosed how the attorneys obtained knowledge of" the fact that the district judge was a material witness, and all the facts the defendants believed the judge would prove. This was not done; but, although the affidavit is deficient in this respect, we cannot wholly ignore , . , . . , the personal knowledge ot the judge who transferred the case. A judge ought not to transfer a case upon a mere suggestion, or even upon an affidavit stating conclusions only; and no change of venue should be granted except for cause, true in fact and sufficient in law, and all of this should' be made to clearly appear to the-court; but when an affidavit is presented in general terms for such a change, and the judge has personal knowledge that he is disqualified to sit, a change of venue ordered by him upon the affidavit and his own personal knowledge that he is disqualified, cauuot be declared erroneous. (City of Emporia v. Volmer, supra; Edwards v. Russell, 21 Wend. 68 ; Moses v. Julian, 45 N. H. 52.)
The contract set forth in the petition is as follows:
“April 22, 1881.—Agreement between H. C. Long and B. Gray for sale of his farm of thirty-three acres, south side of Tauro mee street, Wyandotte, for eight thousand dollars:
“ Said Long agrees to sell the said farm for $8,000, payable as follows: $500 by the 28th of April, inst.; $1,500 in three months from date; aud balance, $6,000, in three years, wdth interest at 8 per cent. ®
“Gray agrees to make payments as above, and pay Armstrong’s commission, not exceeding $100.
“ Gray to have possession when $2,000 is paid, and deed then to be given and mortgage then given to Long for three years at eight per cent, interest, with the privilege of paying the whole or part sooner. H. C. Long.
B. Gray.”
■ The principal and the important question involving the merits of this case arises upon the following finding of fact:
“At the time of the making of the written agreement, Martha M. Long, wife of H. C. Long, was present, heard the contract stated, knew the terms and conditions thereof, and did not dissent therefrom excepting she expressed a desire that the deferred payments should draw ten per cent, interest instead of eight per cent., as provided in the contract.”
A further finding of the trial court is to the effect that Mrs. Long was the owner in fee simple of the real estate in controversy, and as a conclusion of law, upon all the facts found, the court decided that Mrs. Long was not estopped from asserting her ownership or title to the same by reason of any act of hers suffered or done before, at the time, or since the making of the written contract of April 22d. At the time of the execution of this contract, Long and wife lived upon the land within the city of Wyandotte, and the deed from H. C. Long to Richard L. Vedder, of September 13, 1860, under which Mrs. Long claims title, was unrecorded. It had been delivered to the register of deeds of Wyandotte county for record in the year 1860, but was placed with other deeds in a package w'here it remained until found by the register in the fall of 1883. It could only have been found by a person having such knowledge of the business managemeut of the register’s office as to induce an investigation of the package containing the same. The written contract shows upon its face that H. C. Long sold' the land as his own. It is indisputable that the plaintiff supposed he was dealing with Long as the owner of the land; and that both husband and wife were willing to sell is evident from the fact that they did shortly thereafter sell, at an advance. Mrs. Long asserted no title to the premises until after the decision of this court in June, 1883, that the land was within the limits of the city of Wyandotte, and therefore, that only one acre thereof was exempt as a homestead. (Gray v. Crockett, 30 Kas. 138.) This was more than two years after the execution of the written contract. Upon the belief that Long was the owner of the land, the plaintiff commenced his suit for a specific performance of his contract on March 3, 1882. This suit was prosecuted by him for over a year with-, out Mrs. Long making her title known, and the money.and time of the plaintiff were expended in his attempt to obtain the conveyance which H. C. Long had agreed to execute. When the case was tried at the July term of the court for 1882, it was admitted by all the parties, for the purposes of the trial, that on April 22, 1881, H. C- Long was the owner of the land described in the contract.
Upon the findings of fact, we think Mrs. Long is estopped in equity from now asserting that at the time of the contract between the plaintiff and her husband/ she was the owner of the premises described therein. Questions relative to estoppel are not in general controlled by technical rules, but are usually determined upon principles of equity and good conscience. Mrs. Long stood by and allowed the contract to be executed; to some extent she participated in the negotiations preliminary to the execution of the contract. Her silence as to her title, her acquiescence at the time of the contract, and her failure to disclose her title during the earlier stages of this litigation, invoke against her the familiar rule of justice, that if one stands by and allows another to purchase his property without giving him any notice of his title, a court of equity will treat it as fraudulent for the owner to afterward try to assert his title. “ He who will not speak when he should, will not be allowed to speak when he would.” (Goodin v. Canal Co., 18 Ohio St. 169; Tilton v. Nelson, 27 Barb. 595; Foster v. Bigelow, 24 Iowa, 379; Anderson v. Armstead, 69 Ill. 452; Thompson v. Sanborn, 11 N. H. 201; Ford v. Loomis, 33 Mich. 121; Beatty v. Sweeney, 26 id. 217; Doughrey v. Topping, 4 Paige’s Ch. 93.)
Jiidge Thompson, in an article concerning estoppels against married women, says:
. “If a married woman owns real property, but her title is not of record, and her husband enters into a contract for the sale of it, of which she is informed at the time and to which she makes no objection, she will be estopped from setting up ' her title to the land to defeat a suit brought* against her husband for specific performance of his contract, and so would her grantee.”
(8 Southern Law Review, N. S. 275-310; Smith v. Armstrong, 24 Wis. 446; Catherwood v. Watson, 65 Ind. 576.) We are therefore of the opinion’ that the conclusion of law of the trial judge that Mrs. Long was . , -¶ , ♦ -¶ -»• not estopped trom (asserting her ownership or title to all the premises in dispute, is erroneous, and cannot be sustained.
It is again insisted that defendants are entitled to judgment, even though the homestead included only one acre, as the contract was for the entire tract at a price in gross and not so much per acre, and as the homestead acre was inalienable by the husband alone and was in no manner identified in the contract or its price determined, that there is no way of apportioning the price of the thirty-two acres which the husband could sell. In addition to what is stated upon this point in the former opinion of this court in Crockett v. Gray, 31 Kas. 346, it appears to us from the record that H. C. Long and wife have no real complaint to make. Upon the trial, the plaintiff offered these defendants the privilege of selecting their. own- homestead; therefore they will have the right to retain any acre of the land described in the contract which they may choose.' The plaintiff only asks that his contract be enforced after these defendants select and retain one acre thereof. As was said by Mr. Justice Brewer, speaking for this court when the case was last presented to us for our determination, “it is equitable that the contract of April 22, 1881, be enforced so far as is possible, and not that the contracting party be permitted to avoid his contract obligations.” When Mrs. Crockett purchased, she had notice of the prior sale of the premises to plaintiff, and therefore acted with foil -knowledge of all his rights. (Meixell v. Kirkpatrick, 33 Kas. 282.) L. H. Wood was the agent for Mrs. Crockett, and when she purchased, on December 24, 1881, she had no actual knowledge of the deed from Long to Vedder of September 30,1860. This deed was found by Wood in a package in the register’s office about September 10, 1883; therefore Mrs. Crockett bought the land with ignorance of the title of Mrs. Long, and like the plaintiff, supposed she was dealing with Long as the owner. After the first trial of this case, Mrs. Crockett became afraid of her title, and desired to sell the.land. L. H. Wood then negotiated a sale of it from her to his father-in-law, the latter paying the same price that Mrs. Crockett did, with interest on her money. As all of these sales were made through L. H. Wood, and as he acted as agent both for Mrs. Crockett and his father-in-law, and had notice of all the rights of plaintiff, the latter parties are charged with his knowledge. Wood and the principals for -whom he acted dealt with the land as that of Long, upon the belief that the contract of April 22, 1881, could be avoided, solely because the land described therein was outside of the limits of the city of Wyandotte, and therefore, being the homestead of H. C. Long and wife, could not be alienated without their joint consent.
The attempt to set aside the contract of April 22,1881, upon the ground that Mrs. Long was then the owner of the premises, is an afterthought, evidently not contemplated when the joint answer of the defendants was filed. The statute provides that in cases decided by this court when the facts are found by the court below, this court will send a mandate to the court below directing it to render such judgment in the premises as it should have rendered uj>on the facts found. Under the statute, therefore, in view of the conclusion obtained, as none of the findings are excepted to by the defendants, the cause must be remanded, with directions to enter judgment for the plaintiff. (Code, §559.) Of course the plaintiff is only entitled to the enforcement of the contract of H. C. Long. He did not bargain for or purchase the supposed inchoate interest of Mrs. Long. She did not sign the contract, and was not asked to sign the same. The plaintiff is entitled to what his written contract calls for. The decree, however, for the specific performance of the contract, as well on the part of H. C. Long, as of Mrs. Crockett, must be so framed as to fully protect such inchoate interest of Mrs. Long, as the wife of H. C. Long, whether owned by herself or subsequent to the contract transferred to her co-defendant, Mrs. Crockett. The rights of the plaintiff are the same as though the deed from H. C. Long to Richard L. Vedder, of September 13, 1860, had never been executed, and as though there had been no con-' veyance subsequent to the contract, from H. C. Long to Elizabeth I. Crockett.
The judgment of the district court will be reversed, and the cause 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
"Valentine, J.:
This was an action brought in the district court of Crawford county, by Thomas S. Gorrell and Louis M. Mosteller, partners as Gorrell & Mosteller, against Joseph E. Heatwole, to recover $500 for an alleged breach of the following instrument in writing, to wit:
“Pittsburg, Kansas, Feb’y 267 1883.—I, Joseph F. Heatwole, of the city of Pittsburg and county of Crawford and state of Kansas, bind myself in the sum of five hundred dollars to Thomas S. Gorrell, Louis M. Mosteller, and James J. Avery, in the county and state above mentioned, that I will not engage in the business myself or allow my name to be used in company with anyone, in 'dealing in hardware and implements in the said Baker township, Crawford county, Kansas, for the period of five years from this date. If this agreement is performed on my part in good faith, this agreement to be null and void; otherwise to remain in full force.
“Witness my hand this 26th day of February, 1883.
(Signed) Joseph F. Heatwole.”
The case was tried before the court and a jury, and the ■jury found a general verdict in favor of the plaintiffs and against the defendant for $500, and the court rendered judgment accordingly. The defendant brings the casa to this court for review.
Several questions were raised in the court below, but the only question which needs to be considered in this court is, whether the sum of $500, mentioned in the foregoing instrument in writing, is a penalty or is liquidated damages. The plaintiff in error, defendant below, claims that it is a penalty, while the defendants in error, plaintiffs below, claim that it is liquidated damages. The court below did not directly decide the question, but submitted the same to the jury for their determination, and the jury found generally in favor of the plaintiffs below and against the defendant below, and therefore in effect found that the above-mentioned sum was liquidated damages, and not a penalty; and the court below sustained the verdict.
The foregoing instrument in writing was executed under the following circumstances: On February 26, 1883, the defendant, Heatwole, was engaged in business in Pittsburg, Baker township, Crawford county, Kansas, as a retail dealer in hardware. He desired to sell his business, including his stock in trade, and the plaintiffs desired to purchase the same, but upon the condition only that the defendant should enter into a penal bond in the sum of $500 that he would not again' go into the hardware business at that place for five years. • The plaintiff G-orrell testified on the trial, among other things, as follows :
“ When Mosteller and myself first spoke to Heatwole about purchasing his stock of hardware, he agreed to execute to us a bond in the penal sum of five hundred dollars.
“ When I spoke to Mr. Heatwole about buying his stock of hardware, I told him I didn’t want to buy it and he to stay in the business. He promised us he would go into a written bond in the penal sum • of five hundred dollars he would not go into the business.
“Q. State whether or not that was part of the inducement? A. That was part of the inducement.
“ Q,. State whether or not you would have made this purchase if it had not been for the giving of the bond? A. No, sir; I don’t think I would.”
The purchase was made and the bond was given on February 26,1883. Afterward, and about the last of September’, 1884, the defendant Heatwole again went into the hardware business at Pittsburg, Kansas; and on December 3, 1884, this action was commenced.
Was the foregoing instrumeht in writing correctly interpreted in the court below? We think not. Of course, in all cases of this kind the will and intention of the parties must govern; but from the language of the'instrument in this case, and the circumstances under which it was executed, it cannot be supposed that the parties intended that the sum of $500 should be considered as liquidated damages, and not as a penalty. There was no expressed agreement that the defendant Heatwole should pay liquidated damages, or damages of any kind, or that he should pay anything; and evidently, if the parties believed each other to be honest, and each intended that the contract should be fulfilled, it was not expected or intended that the defendant should ever pay anything. The essence of the contract was, that the plaintiffs should purchase the defendant’s business and his good-will for five years, and that he should not again for that period of time and at that place enter into that kind of business, and that during that period of time he should stand bound in the penal sum of $500, as a security for the performance of the contract on his part. This instrument was in terms a bond. The defendant in express terms says in the instrument: “ I,-, bind myself in the sum of $500,” etc., and a bond of this character is always prima facie a penal obligation. (1 Suth. on Damages, 489.) And there is nothing in all this case tending to show that the present bond is not a penal obligation. But if it were doubtful whether this bond should be construed to be a penal obligation or a contract to pay liquidated damages, then the courts should and would construe it to be a penal obligation; for in that case exact justice could be done between the parties by giving to the aggrieved parties their exact damages — neither more no,r less; while, on the other hand, if the instrument were held to be a contract to pay liquidated damages, great injustice might be done by compelling the party who executed the instrument to pay to the other parties vastly more than their actual damages. In the present case the sum of $500, as fixed by the parties, was intended to cover every breach and all breaches for the entire period of five years, and it was to prevent the defendant from engaging in the business of dealing in any hardware or dealing in any implements, or allowing his name to be used in dealing in any hardware or in dealing in any implements, not only for the period of one day, or one week, or one month, or one year, but for the entire period of five years; and the said sum of $500 was considered as an ample and sufficient compensation, not only for a single breach of the contract for a single day in dealing in the smallest quantity of hardware or the smallest number of implements, but was considered as a sufficient compensation for all possible breaches or for an entire breach of the entire contract for the entire period of five years, and without reference to the amount of the stock of hardware or the amount of the stock of implements which the defendant might keep if he committed any breach. And where an absolute sum is fixed in a contract as a security against all breach or breaches of the contract, without reference to the magnitude of the breaches or the number thereof, and without reference to the amount of the actual damages which might ensue from such breach or breaches, whether great or small, and this where there might be several breaches, and each of a greater or less magnitude, and each followed by greater or less damages, such fixed sum cannot be considered as agreed or liquidated damages, but must be considered as a .. penalty. It is simply a penalty intended to cover every breach and all breaches; and to be recovered in proportion to the actual damages which may result from any breach or breaches, and is not liquidated damages, to be recovered in full for the slightest or most trivial or insignificant breach of the contract; and where there may be a doubt as to whether the sum fixed is a penalty or is liquidated damages, the courts will construe it to be a penalty. Mr. Pomeroy, in his work on Equity Jurisprudence, uses the following language:
“Whether an agreement provides for the performance or non-performance of one single act, or of several distinct and separate acts, if the stipulation to pay á certain sum of money upon a default is so framed, is pf such a nature and effect, that it necessarily renders the defaulting party liable in the same amount at all events, both when his failure to perform is complete and when it is only partial, the sum must be regarded as a penalty, and not as liquidated damages.” (1 Pomeroy’s Eq. Jur., §444.)
The following cases we think support this doctrine: Davies v. Penton, 6 Barn. & Cres. (Eng.), 216; Horner v. Flintoff, 9 Mees. & Wels. (Eng.), 678; Perkins v. Lyman, 11 Mass. 76; Ex parte Pollard, 2 Lowell’s Dec. 411; same case, 17 Nat. Bank Reg. 229; Whitfield v. Levy, 35 N. J. L. 149. See also, as tending to support the foregoing doctrine, the following: Hamaker v. Schroers, 49 Mo. 406; S. & C. Rld. Co. v. Calahan, 56 Ga. 331; Jemmison v. Gray, 29 Iowa, 537; Dullaghan v. Fitch, 42 Wis. 679; Lyman v. Babcock, 40 id. 504; Taylor v. Marcella, 1 Woods, (U. S. C. C.,) 302; Cury v. Larer, 7 Pa. St. 470; Shreve v. Brereton, 51 id. 175; Lampman v. Cochran, 16 N. Y. 275; Niver v. Rossman, 18 Barb. 50; Beale v. Hayes, 5 Sandf. 640.
There are a few cases which seem to assert a contrary doctrine: Streeter v. Rush, 25 Cal. 67; Cushing v. Drew, 97 Mass. 445; Grasselli v. Lowden, 11 Ohio St. 349. In the California case, there is an able dissenting opinion by Mr. Justice Sawyer. In the Massachusetts case^ the material wprds are, “do agree to pay,” while in the present case the material word is “bind.” In the Ohio case, the material words are that the party obligating himself “ agrees for himself and representatives to pay to the said John Lowden [the other party], or his representatives, the sum of $3,000 as liquidated damages.” The Ohio decision is probably correct, and possibly also the Massachusetts decision, and yet we are not entirely satisfied with that decision; nor are we satisfied with the California decision; and so far as any of these decisions differ from the views we have herein expressed we cannot agree with them.
It would be an injustice in this case to require the defendant to pay the full sum of $500 for the breach of his obligation for only about two months. That sum was intended as a full compensation for every breach and all breaches which he could possibly commit during the entire period of five years. The defendant fulfilled his obligation for about nineteen months, and then violated the same for only a little more than two months, when this action was commenced; and shall hqpay the entire sum of $500 for a two-months breach, when that sum was considered and intended as a sufficient compensation for a five-years breach? Of course if the sum of $500 is to be considered as liquidated damages, and not as a penalty, then the plaintiffs would be entitled to recover the entire amount, although the breach might not have continued more than one day, and this day might be the last day of the five years as well as the first or any intermediate day; and the breach might be only a slight and technical breach — the inadvertent dealing as a clerk or otherwise in a small quantity of hardware or a few implements. Such a result would be grossly unjust. If, however, we should consider the said sum as only a penalty, then the defendant would be required to pay only a fair compensation in damages for the breach of his obligation; and a fair compensation is all that the plaintiffs are in justice entitled to claim. It is the injustice that must necessarily ensue in many cases, from construing fixed sums in contracts to be liquidated damages, rather than penalties, that has caused courts to generally construe such sums to be only penalties; and courts will always construe such sums to be penalties unless it is clear that it was the intention of the parties that such sums should not be considered as penalties,' but as liquidated damages. Such does not appear to have been the intention of the parties in this case. Everything in the present case tends to show that said sum of $500 was- intended as a penalty, and not as liquidated damages. About the only ground upon which it is claimed that the sum mentioned in the present contract should be considered as liquidated damages, and not as a penalty, is the claim that for a breach of the contract the damages would be uncertain and would be difficult of proof. Now the damages in this case are not more uncertain than the damages are in many other kinds of cases where the law unquestionably gives damages, and not more difficult of proof than' they are in many of such cases. Take, for instance, the action of slander, or an action for a breach of promise to marry, or an action for a breach of warranty concerning property where the purchaser retains the property, or many other cases which may be imagined. In the present case, proof could be introduced concerning the length of time during which the defendant had been in business in violation of his contract, the amount of his stock, the number and amount of his sales, who were his customers, the loss of the plaintiffs’ sales, etc.; and from such facts and others the jury might determine with a sufficient degree of accuracy the amount of the damages.
It is our opinion, from the authorities and from reason, that whenever a party binds himself in a fixed sum for the performance or non-performance of something, without stating whether such fixed sum is intended as a penalty or as liquidated damages, and without regard to. the magnitude or the number of any breaches that may occur, or the amount of the damages that may ensue, and the contract is such that it may be partially performed and partially violated, such fixed sum must be considered as a penalty, and not as liquidated damages.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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Per Curiam,:
This is an application for a rehearing, made by the defendant in error. We have carefully examined all the authorities presented, and are satisfied with the law as declared in this caso in 33 Kas. 433. The application will therefore be denied.
Counsel for defendant in error allege that Birdzell has abandoned his wife without providing any support; that she is insane, and destitute; and that it is gross injustice that the husband should not be compelled to make some provision for her maintenance and comfort out of the money that came to him through his wife. Counsel also contend that independent of any statute, the district court, as a court of equity, should grant relief in the case. The petition filed in this case is in the form of an ordinary action for divorce and alimony under the provisions of the statute. (Civil Code, §§ 639-649.)
We have not decided, and have not intended to decide, that the unquestioned duty of the husband to support his wife may not be enforced by a court of equity upon proper proceedings commenced therefor. If the petition heretofore filed be amended so as to show that Birdzell has abandoned his wife and separated himself from her without providing any sufficient support, and other facts are set forth showing that the wife has no adequate or sufficient remedy under the statute, then a case will be presented as to the jurisdiction of the district court, as a court of equity, to grant salutary relief independent of the statute relating to divorce and alimony. When such a case is before us, it will be time enough for us to decide whether there is any remedy for such wrongs by way of an allowance for suitable maintenance and support out of the estate of the husband.
Johnston, J., not sitting. | [
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The opinion of the court Avas delivered by
Horton, C. J.:
This is an action brought in this court by the plaintiff against the defendants, to .compel the defendants' to call an election to vote on the question of subscribing stock and issuing bonds to aid the Walnut Valley & Colorado Railroad Company to construct a line of road in and through the following townships of Rush county: Garfield, Banner, Center, Union, and Belle Prairie. It is admitted that the petition was properly presented, duly canvassed, and .found to contain the requisite number of legal petitioners. The defendants answer that they are willing to order the elections requested whenever they have the right to do so, but are prevented by an injunction issued out of the district court of Rush county on December 29, 1885, in an action therein pending between the state of Kansas, on the relation of D. A. Stubbs, against the board of county commissioners of Rush county, and the limitations embraced in chapter 90, Laws of 1870 — being an act to enable municipal townships to subscribe for stock in any railroad. It was clearly apparent to us, upon the hearing of this case, that said action is a collusive one, and that the defendants could have had the injunction dissolved at any time upon making proper application therefor. The petition is very defective —perhaps fatally so. It does not allege when the election is to be held, in what portion of the county, or in what townships, nor does it name any railroad company to whom the subscription is to be made. It does not name in any way the townships referred to in the alternative writ, nor that there is more than one township; and its averment in that respect is, “An election is to be ordered in a portion of the county to vote bonds to a branch of the A. T. & S. F. R. R. Co.” This petition was presented to the district judge of Rush county on December 28, 1885; and without notice to defendants or appearance by them, he indorsed on the petition, “ Temporary injunction allowed, upon the execution of a bond to the defendants in the sum of one thousand dollars, to be approved by the clerk of the-district court of Rush county, Kansas.— J. C. Strang, Judge.”
No summons was issued prior to the commencement of this proceeding. Instead of issuing a summons and having the district clerk indorse thereon “Injunction allowed,” as required by the statute, the clerk issued the order of injunction. This order attempts to forbid the commissioners of Rush county from calling elections in said townships of Garfield, Banner, Center, Union, and Belle Prairie, but is wholly unauthorized and void, because it is not issued in conformity with the petition or the order of the district judge. It names townships and a railroad corporation not mentioned in the petition; and further, said order of injunction, even if properly issued, is no obstacle to the granting of the elections, because the statute provides that an injunction shall not operate until the party obtaining the same shall furnish an undertaking, executed by one or more sufficient sureties. No proper injunction undertaking was given prior to the commencement of this action. All pi'oceedings had in the case pending in the district court of Rush county subsequent to January 6, 1886, the date of the service of the alternative writ of mandamus, cannot prejudice the rights of plaintiff.
The'other objection to ordering the elections in the several, townships, is also without any force. .The petition was presented under and in accordance with the provisions of an act of the legislature of the state of Kansas, of February 29, 1876, entitled “An act to enable counties, townships and cities to aid in the construction of railroads, and to repeal section 8 of chapter 39 of the Laws of 1874,” and the amendments thereto. The law is the latest expression of the legislature, and the limitations in chapter 90, Laws of 1870, cannot apply or control the amount of bonds te be voted for under the elections prayed for.
It is not necessary to decide whether chapter 90, Laws of 1870, has any operation at this time, or whether it is wholly repealed. It is sufficient for this ease to say that the petitions presented to the defendants comply, in all respects, with the provisions of chapter 107, Laws of 1876, and the amendments thereto, and that under the statute it is clearly the duty of the commissioners of Rush county to call the elections demanded.
Let a peremptory writ of mandamus issue against the defendants.
All the Justices concurring. | [
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Per Curiam:
T. H. Elrod, defendant in error, made complaint under oath before Thomas J. Noble, a justice of the peace of Ellsworth county, charging William Bohrer with the offense of unlawfully disturbing the members of a religious society while meeting together for the purpose of worship. The defendant was tried before the justice of the peace, and the case was subsequently heard in the district court. • Judg-
ment was rendered in that court relieving the complainant from costs. To review and reverse that decision, a petition in error has been filed in this court. No appeal has ever been taken from the district court to the supreme court, and as the case is not a civil action, it is not rightfully brought to this court, and the petition in error must therefore be dismissed. (Beisner v. The State, 19 Kas. 479; MeGilvray v. The State, 19 id. 481; MeLean v. The State, 28 id. 372.) | [
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The opinion of the court was delivered by
Valentine, J.:
This was an. action brought in the district court of Shawnee county by Andrew J. Huntoon against the Capital Bank of Topeka, Arthur Quick, the Topeka Bank, (formerly known as the Topeka Bank aud Savings Institution,) John R. Mulvane, Joseph Black, Willis Norton, and N. C. McFarland, to set aside a sheriff’s sale, and for other relief. The case was tried before the Court and a jury, and both the court and the jury made special findings of fact, and the court made one conclusion of law, and upon such findings and conclusion the court rendered judgment in favor of the plaintiff and against the defendants. The defendants bring the case to this court.
Among the admitted facts of the case are the following: In 1873, Joel Huntoon & Son were largely indebted to various persons and corporations, among which were the Capital Bank, the Topeka Bank, the Mastín Bank, Arthur Quick, and Joseph Black & Son, and as to these creditors named, A. J. Huntoon, the brother of Joel Huntoon, was the surety of Joel Huntoon & Son. At the same time, Joel Huntoon was the owner of a large number of lots in Huntoon’s addition to the city of Topeka; and to secure A. J. Huntoon, his surety, he, with his wife, on December 23, 1873, conveyed these lots, about 119 in number, to A. J. Huntoon. Afterward, judgments were rendered on the foregoing claims against Joel Huntoon & Son, as principals, and A. J. Huntoon, as surety, as follows: In. favor of the Capital Bank, on December 30, 1874, for $645.72; in favor of Arthur Quick, on December 30, 1874, for $554.50; in favor of the Mastín Bank,.on March 9, 1875, for $9,992.14; in favor of Joseph Black & Son, on May 13, 1875, for $1,197.69; and in favor of the Topeka Bank, on March 15, 1876, for $862.09. The judgments in favor of the Capital Bank, Arthur Quick, Joseph Black & Son and the Topeka Bank were rendered in the district court of Shawnee county, Kansas, and the judgment in favor of the Mastín Bank was rendered in the circuit court of the United States for the district of Kansas. ' On July 19, 1875, the Capital Bank brought an action in the district court of Shawnee county in the nature of a creditors’ bill, against Joel Huntoon and wife, A. J. Huntoon, Arthur Quick, Joseph Black & Son, and other judgment creditors of Joel Huntoon & Son, and of Joel Huntoon, but did not include in this action the Topeka Bank or the Mastín Bank, and asked that the liens of the several parties might be adjusted, and that the conveyance made by Joel Huntoon and wife to A. J. Huntoon in 1873 be declared a mortgage and set aside, and that the property be ordered to be sold to pay the debts of the Huntoons. On December 15, 1875, the Mastín 'Bank was made a party 'defendant, and on that day it filed its answer. On February 12, 1876, a judgment was rendered in the action, adjudging and decreeing that the deed executed by Joel Huntoon and wife to A. J. Huntoon was a mortgage, and that the real estate therein described should be sold, and that the proceeds of’the sale should be applied in payment of the judg ments in favor of the Capital Bank, Joseph Black & Son, Arthur Quick, and the Mastín Bank, pro rata among themselves, but in priority to the other judgment creditors, and that if there should be any excess after paying those four judgments, the excess should be applied in payment of the judgments of the other judgment creditors as their respective priorities might afterward be determined, and directing that an order of sale should be issued to the sheriff of Shawnee county, commanding him as upon execution to appraise and sell the real estate and make a return of his proceedings into court.
On March 22, 1876, an order of sale was issued and the aforesaid lots were appraised, and on May 8, 1876, the order of sale was returned — no sale having been made, for want of bidders. On July 22,1876, an alias order of sale was issued, and on August 31, 1876, a like return was made. On September 2, 1876, a third order of sale was issued, and the old appraisement was set aside and a new appraisement was ordered to be made, and on September 14,1876, was in fact made, and afterward the order of sale was returned as the others had been before—no sale having been made, for want of bidders. On September 19, 1879, the Topeka Bank applied to be made a party defendant to the aforesaid action with leave to answer, which application was granted; and it filed its answer setting up its judgment and claiming priority over the other judgment creditors. In the mean time the Capital Bank and the Mastín Bank had ceased to do business, and N. C. McFarland and Willis Norton had become the owners of the Capital Bank judgment, and Arthur Quick, John R. Mulvane and Willis Norton had become the owners of the Mastín Bank judgment. On September 4, 1880, a fourth order of sale was issued, and the sheriff proceeded to advertise and sell the property under the previous appraisement of September 14, 1876, and on October 18, 1880, sold all the foregoing lots to Arthur Quick. On December 18, 1880, the sale was confirmed and the priorities were again determined; and it was ordered that the proceeds of the sale, after deducting the costs, should be ap plied pro rata as credits upon the judgments rendered in favor of the Mastín Bank/ the Topeka Bank, the Capital Bank, Arthur Quick, and Joseph Black & Son. On March 1,1881, the sheriff duly executed a deed to Arthur Quick for all the foregoing lots, which deed was duly recorded. Arthur Quick, in purchasing the property and taking a deed to himself, acted as the agent for all the above-mentioned judgment creditors, and after the sheriff’s deed was executed the property was divided pro rata among such judgment creditors precisely as the money would have been divided among them had Quick purchased the land for himself alone, and had paid cash therefor to the amount of his bid; and Quick conveyed to each of the judgment creditors' his or its pro rata share of the property, and each of such judgment creditors paid his or its proportion of the costs and of the taxes then due against the property. These taxes were evidenced by tax-sale certificates and tax deeds held by J. E. Mulvane, who transferred his tax interests in and to the property to the parties respectively who obtained the property. Some of the lots obtained in this manner were sold and conveyed by the parties receiving them to innocent purchasers, but the greater portion of them still remains in the hands of the several judgment creditors or their representatives. On November 22, 1881, A J. Huntoon instituted this present action. It was tried in July, 1883, and was finally decided in the court below on March 29, 1884.
Upon the foregoing facts and some others, the court below found as a conclusion of law that the sheriff’s sale was “void, and should be held for naught.” The court, however, did not render any judgment setting aside the sale. The judgment that was in fact rendered was that the sheriff’s deed and the deeds from Quick to the other judgment creditors conveying the lots which such judgment creditors still hold and have not yet sold .or disposed of, should, as to such lots, be set aside and held for naught, and the title to such lots should be reinvested and replaced in Joel Huntoon, subject to the payment of his debts for which Andrew J. Huntoon is surety ; and the sheriff’s deed- and the deeds to such of the lots as had been sold by the judgment creditors to innocent purchasers were with respect to such innocent purchasers’ lots allowed to remain in full force and to be valid, and an amount equal to the value of such lots sold to innocent purchasers, as such value was shown by the evidence to be, on November 1,1881, was credited on the judgments of the Capital Bank, the Topeka Bank, the Mastín Bank, and Joseph Black & Son, leaving a portion of such judgments still unpaid, which was ordered to be paid by the Huntoons, or that the lots so reinvested and replaced in Joel Huntoon should be sold as on execution to pay the same; and the Arthur Quick judgment was ordered and adjudged to be discharged and satisfied. Now while the court below did not set aside the sheriff’s sale at all, and did not set aside the sheriff’s deed, nor the deeds from Arthur Quick to the judgment creditors, except with respect to a portion of the lots sold, yet we think the question of the validity of the sheriff’s sale is involved in this case; and indeed, it is the main and principal question involved in the case. If the sale is valid, everything is valid. There is no defect or infirmity in or affecting any of the other proceedings, except those which are supposed to render the sale void. The defendant in error, A. J. Huntoon, claims that the sale is void for various reasons, as follows: (1) There was a fraudulent combinatiou among the judgment creditors to prevent competition at the sale; (2) the sale was made upon an appraisement of the property made more than four years prior to the sale; (3) the sale was for a grossly inadequate price; (4) eight of the lots were sold at less than tAo-thirds of their appraised value; (5) J. R. Mulvane, who partially l’epresented two of the judgment creditors, held tax titles on some of the lots at the time of the sale; (6) Arthur Quick’s judgment had been previously paid; (7) the Mastín Bank judgment was dormant at the time of the sale; (8) the Topeka Bank was not a party to the suit until after the judgment of February 12, 1876, subjecting the lots to the payment of the judgment creditors’ claims, had been rendered.
On the other hand, the plaintiffs in error, defendants below, claim that- the sheriff’s sale is valid; that the sheriff’s deed is valid; that the deeds from Quick to the judgment creditors are valid; that Quick’s judgment was not paid; that there was no fraudulent combination, nor any fraud on the part of the judgment creditors or their representatives; and that the judgment of the court below should be reversed for various reasons, among which are the following: (1) The plaintiff below mistook his remedy; his remedy being first to resist the confirmation of the sheriff’s sale and to move to set it aside, and afterward, if unsuccessful-, to commence a proceeding under §§ 568 to 580 of the civil code, which provide for reversing, vacating or modifying judgments or orders in the same courts in which they are rendered; and in either case, if unsuccessful to appeal to the pupreme court; (2) that by virtue of the confirmation of the sheriff’s sale all the substantial matters and things attempted to be litigated iu this action were adjudicated and became and were res adjudicates before this action was commenced ; (3) ho complete record was introduced in evidence on the trial of this case, but only portions of certain records, which were introduced over the objections of the defendants below; (4) the finding that Quick’s judgment was paid is against the .evidence; (5) no fraud or collusion on the part of the judgment creditors was shown by the evidence nor found by the court or j ury; (6) no finding was made that the sheriff’s deed or any one of the deeds from Quick to the judgment-creditors was void; (7) no judgment was rendered setting aside the sheriff’s sale; (8) if Quick’s judgment was in fact paid, such payment should not affect the rights nor result to the injury of the other judgment creditors; (9) when the sheriff’s deed and the deeds from Quick to the other judgment creditors were partially set aside, the title to the lots should not have been vested in Joel Huntoon as it was, for he was not a party to the action; (10) and such title should not have been vested- in- Joel Huntoon for the payment of his individual debts, as it seems it was, but should, have been made subject only to the payment of the debts of the firm of Joel Huntoon &Son; (11) no accounting between the judgment creditors and the Huntoons should have been had or ordered in this action, as Joel Huntoon & Son were not parties to- the action; and if the sheriff’s deed was set aside and not the sale, then the sheriff should have been ordered of permitted to execute another deed; but if both the deed and the sale were set aside, then the court should have ordered or permitted another order of sale to be issued and the property be again sold to satisfy the judgments; (12) but if such an accounting should have been had, then the judgment creditors should not have been charged with the value of the'lots sold to innocent purchasers, estimated arbitrarily as of the date of November 1, 1881; (13) it was against equity, and erroneous, to vest the title to some of the lots in Joel Huntoon, and to charge the full value of all the other lots to the judgment creditors, freed from all the taxes paid by J. R. Mulvane and the judgment creditors, and to deprive the judgment creditors, including Quick, of all compensation for the taxes paid by them, and taxes which the Huntoons should have paid; (14) time should not have been given to Joel Huntoon & Son to pay the remainder of the judgment, a's they were not parties to the suit.
We shall now proceed to consider the various questions presented to us by the parties to this action, but we shall not consider them in the order as heretofore stated.
I. The plaintiffs in error, defendants below, claim that the defendant in error, plaintiff below, has mistaken his remedy; that by his laches he has lost his proper remedies, and that he is now pursuing a wrong one. The property in this case was sold on October 18, 1880.' It had previously been advertised for sale, and the plaintiff in this action had full, complete and actual notice of the sale. He knew that the property was to be sold on that day; and yet he made no appearance at the sale and did not in any manner resist the same. The sale was not confirmed until December 18,1880, just two months after the sale; and yet the plaintiff did not appear at that time nor at any other time, to resist the confirmation of the sale, or to make any motion to have it set aside. The sheriff’s deed was not executed until March 1, 1881, more than four months after the sale, and more than two months after the confirmation of' the sale; and yet the plaintiff did not question the validity, regularity or fairness of the sale, nor did he commence any proceeding to overturn or defeat the sale until he commenced this action on November 22, 1882, more than one year after the sale, nearly one year after the confirmation of the sale, and nearly nine months after the sheriff’s deed was executed. And he never appealed to the supreme court to have the order of the district court confirming the sheriff’s sale reversed, vacated, or modified. The defendants below claim that the plaintiff has slept upon his rights, and that he cannot now maintain this action in equity to obtain the relief he now asks; that he has lost his remedy by his own laches, and that he now has no remedy. We shall consider this question along with the next question.
II. The plaintiffs in error, defendants below, also claim that the subject-matter of this action has been finally and conclusively determined by the order of the district court confirming the sheriff’s sale, and that the entire question as to whether such sale was formal or informal, legal or illegal, valid or invalid, has been finally settled and is now res adjudicata. We think it is true that, with respect to some of the questions involved in this case, or in any case, the confirmation of a-sheriff’s sale is a final and conclusive adjudication. (Paine v. Spratley, 5 Kas. 525; Bowman v. Cockrill, 6 id. 311; Cross v. Knox, 32 id. 725; Dickens v. Crane, 33 id. 344; Pritchard v. Madren, 31 id. 39-49, et seq.) But with respect to many other questions, the confirmation of a sheriff’s sale cannot be regarded as conclusive or as res adjudicata. (Koehler v. Ball, 2 Kas. 161; White-Crow v. White-Wing, 3 id. 276; Benz v. Hines, 3 id. 390; Treptow v. Buse, 10 id. 170, 179, 180; Rice v. Poynter, 15 id. 264, 268; Harrison v. Andrews, 18 id. 535; Halsey v. Van Vliet, 27 id. 477.) We think the substance of the foregoing decisions is that all. mere irregularities in the proceedings connected with a sheriff’s sale are cured by the order of the court, made some considerable time afterward, as in thisUase, confirming the sale. (See also Rorer on Judicial Sales, §329; Freeman on Executions, §311, latter-part, and § 307.) But matters which are not mere irregularities, or which form no part of the proceedings connected with the sale, as, for instance, fraudulent combinations which might prevent a fair and equitable sale, and matters relating to the ownership of the property sold, are not cured nor finally or conclusively determined by the order confirming the sale. Irregularities affecting a sheriff’s sale may be examined in the district court on a motion to confirm the sale or to set aside the sale. Some of such irregularities may also be reexamined in the district court by proceedings under §§ 568 to 580 of the civil code, (Wheatley v. Terry, 6 Kas. 427;) and all such irregularities, so far as they are shown by the record, may be reexamined ón petition in error in the supreme court. (Koehler v. Ball, 2 Kas. 160; 169; Challiss v. Wise, 2 id. 193; White-Crow v. White-Wing, 3 id. 276; Moore v. Pye, 10 id. 246; N. E. M. S. Co. v. Smith, 25 id. 622.) But notwithstanding all these remedies, parties may in some particular cases of fraud and irregularity have an action in the district court in the nature of a suit in equity to set aside a sheriff’s sale, and for such other and further relief as justice and equity may authorize. (Cooks v. Izard, 74 U. S. 559; Troup v. Wood, 4 Johns. Ch. 229; Hamburg Mfg. Co. v. Edsall, 1 Halst. 249.) The more summary remedies are not always adequate, and sometimes on account of particular circumstances the aggrieved party cannot well resort to such remedies even if they were adequate. But whatever remedy the aggrieved party may choose, he must resort to the same withiu proper and reasonable time. (Spafford v. Beach, 2 Doug. 150; Prather v. Hill, 36 Ill. 402 ; Noyes v. True, 23 id. 503; Rigney v. Small, 60 id. 416; McKinneys v. Scott, 1 Bibb, 155; Bristow v. Payton, 2 T. B. Mon. 91; Cunningham v. Felker, 26 Iowa, 117; Daniel v. Modawell, 22 Ala. 365; Hancock v. Metz, 25 Tex. 205; Vanduyne v. Vandwyne, 16 N. J. Eq. 93; Ingram v. Belk, 2 Strob. 207.)
III. There was no unlawful or fraudulent combination among the judgment creditors or their representatives to prevent competition at the sheriff’s sale. The agreement between the judgment creditors was in fact that Arthur Quick should represent their interests at the sheriff’s sale, and should have the authority to bid for and purchase the property for them in his own name, unless it should. be sold for more than he wished to pay, and that after the sale was confirmed and the deed made to him for the property which he purchased, the property should be divided between them pro rata, and that J. R. Mulvane, who partially represented two of the judgment creditors, and who held certain tax deeds and tax-sale' certificates against the property, or a portion thereof, should transfer his tax interests for their agreed value to the judgment creditors respectively who might finally obtain the property upon which he held such tax interests. Arthur Quick .was the only person who was given authority to bid on the property in the interest of all the judgment creditors as a body; but each one of the judgment creditors had a right to bid for himself or itself. At three different times previous to this sale, this property had been offered for sale by the sheriff, on three different orders of sale, and could not be sold for want of bidders, and evidently the judgment creditors intended that it should be sold this time if they had to purchase it themselves, and they made this arrangement for that purpose. But there was no agreement, arrangement or understanding between them that would necessarily prevent any one of them from bidding for himself or itself át the sale, if " he or it had so chosen, or that would necessarily prevent any other person or corporation from bidding. None of the judgment creditors, however, except Quick, purchased any of the property, and none of them made any bid thereon except Quick and J. R. Mulvane, who in part represented two of the judgment creditors. The other judgment creditors may possibly have refrained from bidding because of this arrangement. But there is nothing in the record, however, except the fact that Quick purchased all the property, and that but few bids were made except by him, that tends to show that this agreement or arrangement had the effect to prevent or did prevent any person from bidding. We do not think that this agreement or arrangement of itself furnishes • sufficient ground to set aside the sale in this proceeding; and whether it would have furnished sufficient ground to set aside the sale if a motion had been made by the plaintiff in the proper court for that purpose before the sale was confirmed, before the sheriff’s deed was executed, before any rights of innocent purchasers had intervened, we do not think that it is necessary to express any opinion; for no such motion was made. Combinations which might possibly prevent competition at sheriff’s sales are always looked.upon by courts with great disfavor; and courts sometimes go very far to set aside sheriff’s sales for such reasons, when the application is made in proper time. (Freeman on Executions, §297, and cases there cited; Hamburgh Mfg. Co. v. Edsall, 1 Halst. 249; Morris v. Woodward, 25 N. J. Eq. 32; Underwood v. McVeigh, 23 Gratt. 409, 422; Gardner v. Morse, 25 Me. 140; Codes v. Izard, 74 U. S. 559, 562; Atcheson v. Mallon, 43 N. Y. 147; Troop v. Wood, 4 Johns. Ch. 229, 254; Jones v. Caswell, 3 Johns. Cases, 29; Packard v. Bird, 40 Cal. 378, 383.) It was the opinion of the trial court, as well as it is of this court, that the sale cannot be set aside in this proceeding for the sole and simple reason that there was an illegal or'fraudulent combination to prevent competition at the sale; for whatever the effect of the agreement may have been, the agreement was not in fact fraudulent or illegal.
IV. The sale was made upon an appraisement of the property which had been made more than four years pi’ior to the time of the sale, and thex*efox’e and for this reason it is claimed that the sale is void. We think diffex’ently. The propei’ty had been offered only once for sale under this appraisement, and there is no statute axxthox’izing another appraisement to be made until after the property had been offered for sale a second time under any particular appx’aisexnent. (Civil Code, §468.) Of course the sale should follow vexy soon after the appraisement, for otherwise the property might be worth vastly more at the time of the sale than it was at the time of the appraisenxent. Such was the fact in this present case. Ixx this con nection, see Ayres v. Duprey, 26 Tex. 593, 601. It is probable that the court in cases like this would be justified in ordering a second appraisement before the property had been offered twice for sale under the first appraisement; and certainly in cases where the sale is made at such a great length of time after the appraisement, the judgment creditor should be required at his peril to see that the property is sold at a fair price. We think, however, that in the absence of fraud or great hardship no sale should be held to be void or even voidable in an action like this, simply' because it was made a long time after the appraisement was made. As to what should have been done if a motion had been made in proper time to set aside the sale, we express no opinion.
V. It is also claimed that the sale is void for the reason that the property was sold at a grossly inadequate price. Such a ground taken alone is seldom if ever sufficient to authorize the setting aside of a sheriff's, sale. (Moore v. Pye, 10 Kas. 246; Dewey v. Linscott, 20 id. 684; Northrop v. Cooper, 23 id. 433, 441; Savings Bank v. Marsh, 31 id. 771, 773; McGeorge v. Sease, 32 id. 387, 390, 391.) Though that ground with others is sometimes sufficient. (Dewey v. Linscott, 20 Kas. 684; Weir v. Ins. Co., 32 id. 325; Freeman on Executions, § 309, and cases there cited.) All the lots except eight, and there were about 119 in all, were sold for more than two-thirds of their appraised value. We shall have more to say with regard to these eight lots hereafter. With respect to those lots which were sold for more than two-thirds of their appraised value, we think the sale cannot for mere inadequacy of price be set aside in this proceeding. We shall have more to say hereafter with respect to this point, in connection with the other points.
VI. It is further claimed that eight of the lots were sold for less than two-thirds of their appraised value, and therefore and for this reason that the sale is void. There was no express waiver of appraisement in this case, and no implied waiver unless the facts of this case show it. Undoubtedly the sale of these eight lots would have been set aside if a mo tion for that purpose had beeu made in the district court within proper time; but no such motion was made. The sale might also have been set aside under § 568, subdiv. 3, of the civil code, if a proper motion had been made therefor in proper time and before any intermediate rights of innocent purchasers had come into existence; but no such motion was made. The question then arises: Can the sale be set aside or held for naught in this proceeding ? This question may be considered in two aspects: First, is the statutory requirement that the property shall not be sold for less than two-thirds of its appraised value a jurisdictional matter? or, second, is such requirement a mere direction to the officer, which he should .follow, but the non-observance of which will not render the sale void but only voidable at the option of a party interested in having the sale set aside? The sale of these lots for less than two-thirds of their appraised value was evidently a mere oversight. No fraud in this respect was shown or found; but still the sale was in violation of law. Section 455 of the civil code provides, among other things, that “no such property [meaning any kind of real estate] shall be sold for less than two-thirds of tire value returned in the inquest.” Nearly all the authorities having application to this question hold, under similar statutes, that such sales are absolutely void. (Gantly v. Ewing, 44 U. S. 707; Collier v. Stanbrough, 47 id. 14; Smith v. Coalcrill, 73 id. 756; Succession of Hilligsberg, 1 La. An. 340; Baird v. Lent, 8 Watts, 422; Wolf v. Payne, 35 Pa. St. 97; Gardner v. Sisk, 54 id. 506; Strouse v. Drennan, 41 Mo. 289; Sprott v. Reid, 3 G. Greene, 497; Maple v. Nelson, 31 Iowa, 322; Harrison v. Doe, 2 Blackf. 1; Morse v. Doe, 2 Ind. 65; Babcock v. Doe, 8 id. 110; Davis v. Campbell, 12 id, 192; Cummins v. Pfouts, 13 id. 144; Evans v. Ashby, 22 id. 15; Fletcher v. Holmes, 25 id. 458; Tyler v. Wilkerson, 28 id. 450.) There may be cases where this rule is not strictly adhered to. (Allen v. Parish, 3 Ohio, 188; Williams v. Hickman, 2 Harr. 463; Wray v. Miller, 20 Pa. St. 111; Sydnor v. Roberts, 13 Tex. 598; Ayres v. Duprey, 27 id. 593; Shaffer v. Bolander, 4 G. Greene, 201.)
Under the great weight of authority, we think it must be held that the sale of these eight lots is void, and that such sale must be held to be void in this present action, or in any action or proceeding.
It is also claimed that the sale should be held void because J. E. Mulvane, who partially represented two of the judgment creditors, held tax titles on some of the lots at the time of the sale. We fail to perceive any sufficient ground for this point, and of course it must be overruled.
VII. It is also claimed that the sale is void for the reason that Arthur Quick’s judgment had been paid prior to the sale. Now the jury found that such judgment had been paid, and the court below followed such finding and made a similar finding itself, and yet it would seem to us that the preponderance of the evidence is on the other side. From sometime in October, 1876, up to February, 1877, conversations were had between Quick and Joel Huntoon from which it is claimed on the part of the Huntoons that the judgment was paid, and the testimony of Joel Huntoon, corroborated in part by F. E. Huntoon, his son, tends to sustain such claim, and in the absence of other pi’oof is amply sufficient to sustain the same; while, on the other hand, Arthur Quick testified on the trial that the judgment had never been paid. The court and jury found that such a payment had been made in February, 1877. The supposed payment was as follows: In 1872, which was prior to the time when Huntoon & Son became embarrassed, Joel Huntoon sold four lots to Abraham Warren, on credit, and entered into a written contract with Warren to convey such lots to Warren whenever the purchase-price therefor should be paid. On February 13, 1877, Warren assigned this contract to Quick, and Quick took possession of the property. Afterward, Quick sold his interest in' the lots to George M. Hammel; and it is now claimed by the Huntoons that Joel Huntoon paid Quick’s judgment by releasing to Quick the purchase-price still remaining due on these lots. There is no writing, however, that shows that such judgment has ever been -paid. No deed or written transfer of the lots has ever been made by Huntoon to Quick or to Quick’s assignee. Quick never delivered the written contract between Huntoon and Warren to Huntoon. No entry of satisfaction or payment of «the judgment has ever been made. No receipts were ever given, nor have any passed between Huntoon and Quick. No notice of the payment was ever given to the other judgment creditors. And, indeed, nothing has ever occurred aside from said conversations that would tend to show that the judgment has ever been paid. After this supposed payment, and on August 17, 1878, Joel Huntoon & Son filed a petition in the United States district court for the district of Kansas, asking that they might be adjudged bankrupts, and be finally discharged as such under the laws of the United States, and connected with this petition they filed a schedule, sworn to by each of them, showing that Quick’s judgment had not been paid, but was still a valid and subsisting judgment.
Now, notwithstanding all these facts and circumstances, which tend to disprove the findings of the court below and the jury that the judgment in favor of Quick had been previously paid, still there was sufficient evidence to sustain the finding of the court and jury; and we shall therefore decide this case upon the theory that Quick’s judgment had in fact been paid prior to the sheriff’s sale. This, however, cannot materially affect the substantial rights of the other judgment creditors. They must not suffer because of the supposed fraud of Quick. They had no knowledge that the judgment was paid. Joel Huntoon & Son had. No satisfaction of Quick’s judgment had ever been entered of record to give them notice, yet Joel Huntoon & Son hád knowledge of such payment. No notice of the payment had ever been given by the Huntoons or by anyone else to the judgment creditors; and there was no written evidence in existence tending to show that Quick’s judgment had ever been paid; and even Quick himself did not believe that it had been paid. Why did not the Huntoons protect themselves aud the judgment creditors against Quick’s judgment, if he committed a fraud? The Huntoons could have appeared in court at the time of the confirmation and prevented the payment of any of the proceeds of the sale in satisfaction of Quick’s judgment; but they did not do, so. Under the circumstances, the judgment creditors, other than Quick, cannot be required to suffer because of Quick’s supposed fraud. This fraud, or supposed fraud, cannot of itself and alone render the sale void. The sale was made upon other judgments as well as upon Quick’s judgment; and the only effect that this supposed fraud, taken alone, could have upon the sale would be to deprive Quick of any of the proceeds of the sale, and to give all the proceeds to the other judgment creditors.
VIII. It is also claimed that the Mastín Bank judgment was dormant at the time of the sale, but this is not true; and upon this point the findings of the court below are against the plaintiff below, defendant in error. It is true that no execution had been issued on the Mastín Bank- judgment for more than five years prior to the date of the execution upon which the property in this case was sold; but the Mastín Bank was a party to the action brought by the Capital Bank against the Huntoons and their judgment creditors within less than five years after the Mastín Bank judgment was rendered, and therefore such judgment was not dormant at the time of the sale. (Kothman v. Skaggs, 29 Kas. 5, 17, 18.)
IX. It is further claimed that the Topeka Bank was not a party to the Capital Bank suit until after the judgment of February 12, 1876, subjecting the lots to the payment of the judgment creditors’ claims, had been rendered. This claim will not necessarily defeat or avoid the sheriff’s sale, but at most can only have the effect of preventing the Topeka Bank from participating in the distribution of the proceeds of the sheriff’s sale. We do not think that it can even have this effect. From anything appearing in the case, the right of the Topeka Bank to participate in such proceeds was equal to the rights of the most favored of the other judgment creditors, and the decision of the court below was that it had the right to so participate; and none of the judgment creditors are complaining. It can make no difference to the Huntoons whether the Topeka Bank participates in the proceeds of this sale, or not, for they are all liable to pay the Topeka Bank judgment as well as the other judgments.
X. Having considered separately all the points made by the defendant in error, plaintiff below, we shall now proceed to consider them collectively; for collectively they make a much stronger case in his favor than they do when considered separately. The lots were in fact sold for a grossly inadequate price—only about one-fourth of their actual cash value; and eight of them were sold, in violation of law, at less than two-thirds of their appraised value; and the appraisement itself had been made more than four years prior to the sale, and at a time when the price of the property was very low. 'All were sold to one individual, Arthur Quick, who was the agent of all the judgment creditors; and but few bids were made except such as were made by him;. and probably the arrangement among the judgment creditors that he should bid for them had a tendency to prevent their bidding for themselves; and the sale was made in part to pay a judgment which had previously been paid. Now probably, while not one of these things would in and of itself be considered as sufficient to render the sale as to all the lots void, or require that the sale should be set aside in this action as to all the lots, yet, taking all these things together, we are inclined to think that they are sufficient to authorize the setting aside of the sale as to all the lots which still remain in the hands of the judgment creditors and have not been sold or transferred by them to innocent purchasers. None of the aforesaid eight lots have passed out of the hauds of the judgment creditors. All that any one of the judgment creditors is really entitled to receive or have is the amount of his or its judgment, with interest. Anything more is injustice. And if the sale in the present case is to be sustained and upheld, the judgment creditors will get very much more than their judgments and interest. On the other hand, the judgment debtors are entitled to a fair and reasonable compensation for their lots. This they have not obtained by the sale. As they pay interest on the judgments against them, they should be entitled to the rise in the market value of their lots. This they have not obtained. Therefore, while gross inadequacy of price will seldom if ever alone authorize the setting aside of a sheriff’s sale, yet, taking into consideration all the circumstances of this case, the gross inadequacy of price, the illegality of the sale of eight of the lots, the fact that the sale was made at such a remote period of time from the time when the appraisement was made, the fact that by reason of the agreement of the judgment creditors there was substantially only one bidder at the sale, and the further fact that the lots were bid in in part to pay a judgment which had already been paid, we think there are sufficient reasons for setting aside the sheriff’s sale to the extent which we have heretofore suggested.
XI. If it be asked, why should not the' sale be wholly set aside? it may be answered that it is certainly very doubtful, under the circumstances of this case and in this proceeding, whether the sale should be set aside at all or to any extent, except as to the eight lots which were sold for less than two-thirds of their appraised value. Huntoon, the defendant in error, plaintiff below, had full knowledge of the sale, yet he did not resist the sale or its confirmation, or the execution of the sheriff’s deed. He made no motion to set aside the sale, nor did he ever question the regularity or the validity of the sale, or the confirmation thereof, or the sheriff’s deed, either in the district court or in the supreme court, or indeed in any court, until he commenced this' action in the district court more than a year after the sale and a long time after the confirmation and the execution of the sheriff’s deed and the execution of the deeds from Quick to the judgment creditors. Huntoon has been guilty of laches, and yet he now appeals to a court of equity to obtain what he might have obtained in the ordinary course of law if he had exercised proper diligence. We think too many complications have arisen by reason of his laches and negligence, to grant him all that he now asks. (See the authorities heretofore cited, and especially Prather v. Hill, 36 Ill. 402; Noyes v. True, 23 id. 503; Van duyne v. Vanduyne, 16 N. J. Eq. 93; Daniel v. Modawell, 22 Ala. 365.) Indeed, the court below did not set aside the sale at all; nor did it intend to set aside the sale any further than we have suggested that it should be set aside. The court below, however, required that as to the lots sold to innocent purchasers a credit should be entered upon the judgments equal to the full value of the lots as of November 1, 1881. Why that date should have been selected, we do not know, as the sale was made on October 18, 1880, the confirmation was had on December 18, 1880, the sheriff’s deed was executed on March 1, 1881, and this action was commenced on November 22, 1881. Also, as the law permits the property to be sold on execution for two-thirds of its appraised value, why should the judgment creditors be charged with the full value of the lots? But still we do not think that we need to consider these questions; for, as Huntoon unreasonably neglected to resort to any of the ordinary remedies open to him, and unnecessarily waited until all these and other complications had arisen, we do not think he is now and in this action entitled to any relief with respect to the lots sold to innocent purchasers. It is seldom that equity will assist a person who has been guilty of laches, or who has neglected to resort to the ordinary remedies open to him.
XII. And in setting aside the sale as to the lots remaining in the hands of the judgment créditors, justice and equity should be done to them. A party who seeks equity should be willing to concede equity to others. It does not appear that the judgment creditors have made any improvements on any of the lots purchased by them, but it does appear that they have paid taxes thereon; and these taxes should be provided for. The order setting aside the sheriff’s sale, if such' an order be made, should be upon the condition that all taxes which have been paid by the judgment creditors on the lots which are still in their hands shall be refunded to them before their judgments shall be considered as satisfied. If the judgments are not paid without sale, and the lots are again sold, then, after paying the costs, these taxes should be first paid out of the proceeds of the sale. What we have said with regard to taxes has reference to the tax-sale certificates and tax titles held by J. R. Mulvane, which were paid by the judgment creditors, and also the taxes which they have subsequently paid. The statutes require -that whenever real estate is sold at judicial sale the court shall order all taxes thereon to be paid out of the proceeds of such sale. (Comp. Laws of 1879, ch. 107, art. 9, §56; Brown v. Evans, 15 Kas. 88; Opdyke v. Crawford, 19 id. 604, 608.) And certainly equity and justice require that the taxes in the present case should be paid by the judgment debtors, or be paid out of the proceeds of the sale of the lots,'if such sale is made.
XIII. We suppose a part of a record will generally prove what it purports to prove, but as was said in the case of Haynes v. Cowen, 15 Kas. 637, 641, 642:
“It cannot prove more than it purports to prove. No liberal presumptions can be entertained or resorted to for the purpose of supplying omissions, aiding deficiencies or extending the import of its language.. It is only when the whole of the record is introduced in evidence that liberal presumptions can be invoked to aid the record.”
We think no material error was committed in permitting portions of the record of the case of the Capital Bank against the Huntoons and the judgment creditors to be introduced in evidence. But evidently these portions of the record failed to prove much that the record would have proved if the entire record had been introduced in evidence. For this reason the nineteenth finding of the court below is hardly sustained by sufficient evidence, though really no point has been made in this court upon that finding.
This case will be remanded to the court below, with the order that the judgment rendered therein be modified, and for further proceedings in accordance with the views expressed in this opinion.
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The opinion of the court was delivered by
Valentine, J.:
This was an action for the partition of real estate, brought in the district court of Washington county, by Julia A. Chappel against Henry C. Crippen and H. Francis Crippen, partners as Crippen, Lawrence & Co., and others. The petition alleged, among other things, that the plaintiff and the defendants other than Crippen, Lawrence & Co. were joint owners of the property in question, and that Crippen, Lawrence & Co. claimed to have some interest in the premises; and the plaintiff prayed for partition between herself and the defendants other than Crippen, Lawrence & Co., and prayed that the claim of Crippen, Lawrence & Co. be adjudged to be null and void. For answer to this petition, Crippen, Lawrence & Co. set forth, among other things, that the land in question had previously belonged to Philemon Chappel; that on January 11, 1883, he died, leaving as his heirs Julia A. Chappel, his widow, and the co-defendants of Crippen, Lawrence & Co.; that at that time the property in question was incumbered by a mortgage lien to secure the payment of a debt of $500 and interest, due July 1, 1883, to Joseph P. Drewett, for which debt the intestate was personally liable. On March 16, 1883, I. H. Chase was duly appointed administrator of Chappel’s estate, and on July 2, 1883, he obtained an order from the probate court authorizing and directing him as such administrator to re-mortgage the property for the purpose of raising money to pay the aforesaid debt and to discharge the aforesaid mortgage. Pursuant to such order the administrator applied to Crippen, Lawrence & Co. for and obtained from them a loan of $500 for the purpose of paying off and discharging said debt and mortgage to Drewett, and for this loan the administrator gave his note and mortgage on the property in question, both of which were executed by him as administrator. On the faith of this last-mentioned note and mortgage, and of having as security for the said loan a first lien, upon the land in question, Crippen, Lawrence & Co. advanced said sum of $500 by paying the same to Drewett in satisfaction of his claim and mortgage lien.. Upon the foregoing facts, the defendants Crippen, Lawrence & Co. prayed that they be adjudged to have a valid lien on the property in question for said sum of $500 and interest, by virtue of the mortgage executed to them by the administrator ; or, if that co.uld not be done, then that they be subrogated to the lien of the Drewett mortgage. To this answer the plaintiff interposed a demurrer, on the ground that the answer did not state facts sufficient to constitute any defense to her petition, which demurrer was sustained by the court. The defendants Crippen, Lawrence & Co. excepted,-and to reverse the ruling of the district court in sustaining such demurrer they bring the case to this, court, making the plaintiff below and all the defendants below aside from themselves defendants in error.
It seems to be admitted that the mortgage executed by the administrator to Crippen, Lawrence & Co. is void, and void, not because of any irregularity in its execution, but void because administrators in this state have no power or authority under the law to execute mortgages; and there is no claim in this case that the deceased had executed any will. giving the administrator any such authority. It would therefore seem to be admitted that the mistake of the administrator and of Crippen, Lawrence & Co. in executing and receiving the aforesaid mortgage was a mistake of law and not one of fact. It also seems to be admitted by the parties that the only question presented to this court for consideration is whether the defendants Crippen, Lawrence & Co. can be subrogated to the rights of Drewett under his mortgage.
We shall assume that the mortgage executed by the administrator to Crippen, Lawrence & Co. is absolutely void, because of a want of power in the administrator to. execute the same, (Blank v. Dressell’s Heirs, 20 Kas. 153,) and that it is worthless for all purposes except merely for the purpose of showing the understandings and the intentions of the administrator and Crippen, Lawrence & Co. when the money was loaned, and when the Drewett debt and mortgage were paid and satisfied. Nor is there ány express authority given by the statutes of Kansas to administrators to borrow money on account of their estates. It is the duty, however, of administrators to pay all debts against their estates, whether such debts are secured by mortgages or other securities, or not secured at all; and for this purpose the administrator may first sell all the personal property of the estate not exempt, if necessary, and may then sell all the real estate of the estate, not exempt, if necessary. In other words, all the estate of a deceased person, real and personal, except certain exemptions which have nothing to do with this case, is pledged by law for the payment of the decedent’s debts, and the administrator may use the decedent’s estate for that purpose. The question, then, to be considered in this case is whether, when a debt is due against the estate of a deceased person, and such debt is secured by a mortgage on the real estate of such deceased person, and the administrator whose duty it is to pay such debt borrows the money therefor from a third person with the agreement and understanding betweem them that such third person shall be reimbursed from the assets of the estate, and that such third person shall be secured by a mortgage lien upon the previously-mortgaged property of such estate, and for that purpose a mortgage on the previously-mortgaged property is executed by the administrator to such third person, which mortgage is void because of a want of power in the administrator to execute the same, but in pursuance of such mortgage and of the agreement and understanding between the administrator and the loaner of the money, the money is loaned and is paid to the original mortgagee, may such third person be then subrogated to the rights of the original mortgagee, and thereby obtain substantially what he was to obtain by virtue of the agreement and understanding between himself and the administrator, and which in justice and equity he ought to obtain? Under such circumstances, it can hardly be claimed that such third person is a stranger to the transaction as between the debtor and the creditor, a mere volunteer, a mere intermeddler, for the money was ad vancecl and the prior mortgage paid at the instance and request of the very person who was liable to pay the same, and whose duty it was to pay the same; and yet it is claimed by the plaintiff below and by all the defendants in error, that Crippen, Lawrence & Co. were in fact, and in law, and in equity, mere strangers, mere volunteers, mere intermeddlers. It will be admitted that if Crippen, Lawrence & Co. were mere strangers, mere volunteers, mere intermeddlers, without any contract or understanding be- • J tween themselves and the party whose duty it was to pay the debt, or between themselves and the original mortgagee, they could not .now rightfully claim any such thing as subrogation or equitable assignment. It always requires something more than the mere payment of the debt in order to entitle the person paying the same to be substituted in the place of the original creditor. It requires an assignment, legal or equitable, from the original creditor, or an agreement or understanding on the part of the party liable to pay the debt, that the person furnishing the money to pay the same shall in effect become the creditor, or the person furnishing the money must furnish the same either because he. is liable as surety or liable in some other secondary character, or for the purpose of saving or protecting some right or interest, or supposed right or interest, of his own. But the right of subrogation or of equitable assignment is not founded upon contract alone, nor upon the absence of contract, but is founded upon the facts and circumstances of the particular case and upon principles of natural justice; and generally, where it is equitable that a person furnishing money to pay a debt should be substituted for the creditor or in the place of the creditor, such person will be so substituted. Now, while we have not been referred to nor have we found any case precisely analogous to this case, yet we think that under the general doctrine of subrogation or of equitable assignment, this case comes within such doctrine. See the following authorities: Sheldon on Subrogation, § 8, and cases there cited; 1 Jones on Mortgages, § 874, d seq., and cases there cited; Boone on Mortgages, §§ 135, 136; Freeman on Void Judicial Sales, §§ 50, 51, and cases there cited; 3 Pomeroy on Eq. Jur., § 1212, and cases there cited; Ayres v. Probasco, 14 Kas. 177, 198; Johnson v. Moore, 33 id. 90; Everston v. Central Bank, 33 id. 352, et seq., and cases there cited; Levy v. Martin, 48 Wis. 198; Morgan v. Hammett, 23 id. 30; Blodgett v. Hitt, 29 id. 170; Homeo. Mut. Ins. Co. v. Marshall, 32 N. J. Eq. 104; Tradesmen’s Building &c. Ass’n v. Thompson, 32 id. 133; Tyrell v. Ward, 102 Ill. 29; Scott v. Dunn, 30 Am. Dec. 174, and note, 177, et seq., and cases there cited; Gilbert v. Gilbert, 39 Iowa, 657; Valle’s Heirs v. Fleming’s Heirs, 29 Mo. 152; Hines v. Potts, 56 Miss. 347; Caldwell v. Palmer, 6 Lea, 652; Carter v. Taylor, 3 Head, 30; Mosier’s Appeal, 56 Pa. St. 76; Capehart v. Hoon, 5 Jones’s Eq. 178; Lockwood v. Marsh, 3 Nev. 138.
mortgage; subrogation. It is true there was no contract between Crippen, Lawrence & Co., and either the administrator or the holder of the original mortgage that the original mortgage debt should itself be transferred or assigned to Crippen, Lawrence & Co.; but as we have before stated, the doctrine of subrogation or equitable assignment is not founded upon contract alone, but is -founded upon facts and circumstances and upon the principles of natural justice. The mortgage debt in this case is one that could lawfully and properly be assigned, and it would be as much the duty of the administrator to pay the assignee after the assignment as it was to pay the original holder of the debt before the assignment; and in all such cases the debt is the principal thing and the mortgage and mortgage lien are only incidents thereto. When the 'debt is assigned, the mortgage and the mortgage lien are also assigned; and as the administrator was bound in law and in equity to pay the debt, whether it was assigned or not, he had the same right to agree that the same should be assigned, or that some other person by assignment should become the holder of the same as any other debtor has under like circumstances. For instance, he could have properly consented that Crippen, Lawrence & Co. should become the holders of the debt due from -the estate to Drewett; and when they became the holders of the debt, they would also become the holders of the mortgage and the mortgage lien, for these things follow the debt as incidents thereto. Therefore, while there was no direct agreement between the administrator and Crippen, Lawrence & Co. that the latter should become the holders of the original mortgage debt, yet we think that under the agreements that were in fact made, and under the other tacts and circumstances ot . . ' . . . the case, the principles ot equity will step m and assign the debt to Crippen, Lawrence & Co.; and with the debt, the mortgage, and the mortgage lien, as incidents thereto will go. If these views are correct, and we think they are, then Crippen, Lawrence & Co. háve a right to recover in this action under the doctrine of subrogation, or what may perhaps moie properly be termed equitable assignment.
The defendants in error cite the following authorities: 4 Wait’s Actions and Defenses, ch. 97, 98; Bishop on Contracts, §155; 2 Pomeroy’s Eq. Jur., §§841, 851; Schouler’s Executors and Administrators, §214; Boone on the Law of Mortgages, §140; Sanford v. McLean, 3 Paige’s Ch. 117; same case, 23 Am. Dec. 773; Clark v. Moore, 76 Va. 262; Shinn v. Budd, 14 N. J. Ch. 234; Coe v. N. J. Midl. Rly. Co., 31 N. J. Eq. 105; Wormer v. Waterloo Agri’l Works, 62 Iowa, 699; Salmond v. Price, 13 Ohio, 400; Watson v. Wilcox, 39 Wis. 643.
Some of the foregoing authorities may announce doctrines at variance with the views which we have expressed, and yet we do not think that any case like the one we have now under consideration has ever been decided differently from the decision which we now make. Besides, this decision does eminent justice in the case, and any other decision would permit parties to perpetrate gross injustice.-
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
Horton, C. J.:
This action originated in a justice’s court. Subsequently, it was appealed to the district court, and there, upon the trial, the parties waived a jury and submitted the' case to the court, with the request that the court find the facts specifically and state its conclusions of law thereon. This was done. The facts found are substantially these: On February 25, 1884, Israel D. Risher, plaintiff below, executed to Herman Litzkie two notes for fifty-five'dollars, due in two and six months respectively, and bearing interest at twelve per cent, per annum from date; to secure the payment of these notes, Risher executed to Litzkie a mortgage upon a cow—the property replevied in this action — which provided, among other things, that if the indebtedness was not paid when due, the mortgagee might take the property and sell it at public or private sale. It was further provided therein that until default should be made, the property should remain in the actual possession of the mortgagor. Risher paid $61.68 upon the notes. On February 20, 1884, Risher and Litzkie entered into a contract whereby Litzkie agreed to furnish to plaintiff 115 head of cattle to be herded by the plaintiff during the herding season of 1884; Litzkie wholly failed to furnish any cattle to be herded under his contract, and Risher sustained damages by reason of the breach thereof in the sum of $85. On October 6,1884, after such damages had accrued to Risher, Litzkie took possession of the cow embraced in the mortgage, claiming the right so to do by virtue thereof. At this time, Risher notified Litzkie that on account of the damages which had accrued to him by reason of the breach of the contract before mentioned, the mortgage debt was fully satisfied, and thereupon he demanded the surrender of the notes and mortgage. Litzkie refused to assent to the claim of Risher, but sold the property, which was of the value of $30, at private sale, to John R. Gardner, the defendant below, who was present when Litzkie took the mortgaged property and had notice from Risher that he was the owner of the' cow, and that the mortgage debt was satisfied as above stated. Subsequently, Risher brought his action in replevin against Gardner to obtain possession of the cow.
The $61.68 which Risher had paid upon the notes secured by the mortgage, together with the $85 claimed by him as damages by reason of the breach of the contract upon the part of Litzkie, greatly exceeded the balance due upon the notes and mortgage. The question in the case therefore is, whether Risher had the right to off-set against the notes and mortgage the damages he claimed against Litzkie. We think he had the right to off-set his damages, and that Litzkie ~ .. . ... . ,, • acted at his peni in taking the cow. The only claim he had to the cow was under the mortgage, and his interest in the property depended upon the amount due him from the mortgagor, after deducting all payments and legal off-sets. His claim, therefore, was founded on contract, and in this state any cause of action arising from contract, whether* it be for a liquidated demand or for unliquidated damages, constitutes a set-off against any action founded on contract. (Civil Code, §§94, 98; Stevens v. Able, 15 Kas. 584.) The law relating to set-offs in this state has.been broadened to embrace claims not recognized as such by the laws of many other states; hence, the cases of Gates v. Smith, 2 Minn. 30; Keightley v. Walls, 24 Ind. 205; and Warner v.Comstock, 22 N.W. Rep. 664, do not apply.
Gardner purchased the cow with notice of Risher’s rights. His defense, or rather his claim, in the action was founded upon the notes and mortgage executed by Risher to Litzkie. Tf nothing was due upon the notes and mortgage, or if Risher had a valid off-set to the same at the time Litzkie took possession of the cow, then Gardner obtained no title or right thereto, if Bisher’s set-off was relied upon and pleaded by him in any action or proceeding founded upon the notes and mortgage. Section 100 of the civil code provides;
“When cross-demands have existed between persons under such circumstances that, if one had brought an action against the other, a counter-claim or set-off could have been sét up, neither can be deprived of the benefit thereof by the assignment or death of the other ; but the two demands must be deemed compensated so far as they equal each other.”
( Leavenson v. Lafontane, 3 Kas. 523; Turner v. Crawford, 14 id. 499; Sponenbarger v. Lemert, 23 id. 55.) So here, Bisher cannot be deprived of the benefit of his set-off on account of the sale or transfer of the . , .. .. mortgaged property to Gardner, who had lull knowledge of Bisher’s set-off at the time he purchased.
The judgment of the district court will be affirmed.
Valentine, J., concurring. | [
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The opinion of the court was delivered by ■
Horton, C. J.:
This was an action brought by Joseph W. Redden against Mrs. A. J. Hentig and others, in the nature of ejectment^ for the recovery of lots 408, 410, 412, and 414, on Clay street, in the city of Topeka. Upon the final trial, the case was submitted to the court below, without a jury, and the court rendered judgment in favor of the plaintiff and against the defendants, preserving however to the defendant, Mrs. A. J. Hentig, the taxes paid by her upon the lots, with interest and costs, and her rights as an occupying claimant.
• The first question is, whether the -judgment rendered in favor of the plaintiff below is correct. It appears from the record that on August 20, 1869, the title to the lots in controversy was in T. P. Rodgers and A. K. Rodgers. On October 7, 1870, T. P. and A. K. Rodgers conveyed, by warranty deed, the lots to Jacob J. Puterbaugh, of the city of Logansport, state of Indiana. On August 22,1883, Jacob J. Puterbaugh and wife conveyed by quitclaim deed the lots to Joseph W. Redden, the consideration for the conveyance, recited in the deed, being $120, although Redden testified upon the trial that he paid $225. After the lots had been conveyed to Puterbaugh by the Rodgerses, and prior to the convéyance to Redden by Puterbaugh, and on March 1, 1878, Puterbaugh executed, under the laws of Indiana, a deed of assignment of certain real and personal property to James H. Brinkhurst, in trust for the benefit of creditors Puterbaugh intended in such assignment to convey all of his real and personal property, and among other real estate, the lots in dispute, but by mistake of the scrivener other lots in the city of Topeka, to which Puterbaugh had no title, were inserted in the deed of assignment, and lots 408, 410, 412, and 414, on Clay street, were therefore wholly omitted. The property transferred by Puterbaugh to his assignee, Brinkhurst, failed to pay the debts of the creditors, only fifty cents on the dollar being realized by them for such purpose. Prior to the conveyance by Puterbaugh and wife to Redden, the deed of assignment had never been recorded in the office of the register of deeds of Shawnee county, nor any steps taken to correct the misdescription in the deed, or to subject the lots conveyed to Redden to the possession of Brinkhurst, the assignee of Puterbaugh.
Under the findings of the court, we must also assume that Eedden had no notice of the deed of assignment before his purchase. The evidence on this point is conflicting, but upon the findings and judgment, it is clear that the court decided that Eedden acted without notice. As Mrs. A. J. Hentig, in possession of the property, claimed under a tax deed, adverse to Puterbaugh, and also to Brinkhurst, his assignee, her possession would not put Eedden upon notice of the deed of assignment. There was sufficient evidence presented to the trial court to sustain the finding that the tax sale of 1874, upon which the tax deed was issued, was invalid, and therefore, if Eedden was entitled to recover upon his title, Mrs. Hentig can only be protected to the amount of taxes and charges paid by her, with interest thereop, and as an occupying claimant.
On the part of Mrs. Hentig it is insisted that Eedden cannot be regarded as a purchaser in good faith, for the reason that he holds under a quitclaim deed. Therefore it is insisted that he is charged with notice of all the equities of Brinkhurst, the assignee of Puterbaugh. On the part of Eedden it is urged that a quitclaim deed is as effectual to convey title as one with general warranty, and that there is no distinction between a quitclaim and a warranty deed,- as affecting the holder with notice, or putting him on inquiry. The authorities are conflicting, whether a quitclaim deed gives one who claims under it the rights of a bona fide purchaser without notice. That it does, see Martindale on the Law of Conveyancing, §§59, 285; Graff v. Middleton, 43 Cal. 341; McConnell v. Read, 4 Scam. (Ill.) 117; Fash v. Blake, 38 Ill. 363; Bradbury v. Davis, 5 Col. 265; Chapman v. Sims, 53 Miss. 154. That it does not, see Baker v. Woodard, 6 Pac. Rep. 173; Gress v. Evans, 1 Dak. 387; Hoyt v. Schuyler, 28 N. W. Rep. 306 ; Oliver v. Piatt, 3 How. (U. S.) 333; Marshall v. Roberts, 18 Minn. 405; May v. Laclaire, 11 Wall. 217; Rodgers v. Burchard, 34 Tex. 441; Springer v. Bartell, 46 Iowa, 688; Stoffel v. Schroeder, 62 Mo. 147; Battershall v. Stevens, 34 Mich. 68; Nash v. Bean, 74 Me. 340; Richards v. Snyder, 6 Pac. Rep. 186.
This question, so forcibly discussed in the briefs, need not, however, be decided; and therefore we purposely refrain from expressing our opinion at this time thereon.
All-of the authorities agree that a purchaser under a quitclaim deed takes such interest or title in the premises conveyed as the grantor may lawfully convey, and therefore acquires by such a deed all the rights that the grantor had in the premises at the time of the conveyance. On August 22, 1883, when Puterbaugh and wife executed their conveyance to Redden, Puterbaugh had the legal title to the premises conveyed. This title, at least, Puterbaugh transferred and conveyed to his grantee, Redden. As the holder of the legal title, Redden had a better right to the possession of the premise^ than Mrs. A. J. Hentig, claiming under a tax deed not barred by the statute of limitations, and founded upon an invalid tax sale. Mrs. Hentig does not represent Brinkhurst, the assignee of Puterbaugh, nor the creditors of Puterbaugh. Her interest, if any, is wholly adverse to all of these parties. On the other hand, if neither Brinkhurst, the assignee of Puterbaugh, nor the creditors of Puterbaugh, choose to disturb Redden in his title, the latter’s title is conclusive against the world.
Again, the action of Redden, if it be conceded that he cannot be called a bona fide purchaser under his quitclaim deed, is not adverse to the interests of Brinkhurst, the assignee of Puterbaugh, or the creditors of Puterbaugh. If they are the equitable owners of the property—which we do not decide — their interests are much better protected by the possession of the premises being given to Redden, as the holder of the legal title, than to Mrs. Hentig, under a tax deed which might, perchance, by possession, ripen into a perfect title. The question whether a purchaser who takes by a quitclaim deed is affected by prior equities, might become material in an action between Brinkhurst, the assignee of Puterbaugh, and Redden, but does not arise in this case, between Mrs. Hentig,and Redden. Here, notice of prior equities is wholly unimportant. If Puterbaugh had never executed the conveyance to Eedden, he would be entitled to recover, as against Mrs. Hentig, possession of the lots, subject, of course,’ to her lien for taxes, etc., if neither his assignee, nor his creditors, intervened or objected. Such a proceeding would assist in protecting the estate assigned for the benefit of the creditors; would also strengthen the equities of Brinkhurst, the assignee; and would not prejudice the rights of any creditor.
Eedden has filed a cross-petition, asking the judgment to be so modified as to reduce the amount of taxes, interest and costs to $100. The record purports to contain all of the testimony produced upon the trial. The only evidence in the record of the payment of taxes is embraced in two tax deeds. One tax deed is dated May 9, 1877, and the other tax deed is dated September 30,1882. According to our computation, allowing interest at fifty per cent, to the date of the first tax deed, the evidence shows only $86.51 as a lien for taxes, charges, etc. If, however, Mrs. Hentig is allowed fifty per cent, to the date of the tax deed of September 30, 1882, according to our computation only $109.48 is to be repaid for taxes, etc. If Mrs. Hentig claims as an occupying claimant, or otherwise, under the first tax deed recorded by her, she can only claim interest at fifty per cent, upon the taxes paid by her to the date of that deed, and twenty per cent, thereafter. If, however, she has waived all rights which might otherwise be claimed under the first tax deed, she will be entitled to the full amount of all taxes paid on such lands, with interest at fifty per cent, and costs as allowed by law up to the date of the second tax deed, including the costs of such deed and the recording of the same, with interest on such amount at the rate of twenty per cent. per annum, after the date of said deed, together with all subsequent taxes paid by her, and interest thereon at the rate of twenty per cent, per annum. (Comp. Laws of 1879, ch. 107, § 142.) ’
As the evidence does not support the amount of the lien for taxes, charges, etc., which Eedden was adjudged to pay to Mrs. Hentig, that finding must be set aside.
The judgment rendered in .favor of Redden and against the Hentigs, that they surrender the possession of the lots described in the petition, will be affirmed; but the case will be remanded to the district court for further hearing as to the amount of taxes, charges, etc., which Redden must pay before he shall be let into possession.
All the Justices concurring. | [
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The opinion of the. court was delivered by
Horton, C. J.:
In the district court, this cause came up on appeal from the board of county commissioners of Wyandotte county in disallowing the claim of the Kansas City Bridge and Iron Company for the sum of $980 expended upon the River-view bridge — a bridge across the Kansas river between the cities of Wyandotte and Kansas City, in this state. The Riverview bridge connects the two public thoroughfares in Wyandotte county—Sixth street, in Kansas City, on the east, and a county road on the west. The learned judge who tried this case decided against the allowance of the claim, for the following reasons: First, that as the Kansas City Bridge and Iron Company is a Missouri corporation, it had no power to enter into a written contract to construct a bridge in this state; second, that as the Riverview bridge connects the two cities of Wyandotte and Kansas City, the authority to build the bridge did not reside in the board of county commissioners of Wyandotte county, but solely in the cities of Wyandotte and Kansas City; third, that the board of county commissioners did not publish as required by law, notice of the intention to build the bridge; therefore that the order of the board making the appropriation for the bridge is void, and that the contract subsequently made is also void. That a corporation created in a foreign state may transact its business in this state, if not repugnant to or prejudicial to our laws, is too well settled to need comment. (Land Grant Rly. Co. v. Comm’rs of Coffey Co., 6 Kas. 245; O’Brien v. Wetherell, 14 id. 616.)
“A corporation is clothed everywhere with the character given by its charter, and the capacity of corporations to make contracts beyond the states of their creation and the exercise of that capacity, is supported by uniform,- universal and long-continued practice.” (A. T. & S. F. Rld. Co. v. Fletcher, ante, p. 236; Bank of Augusta v. Earl, 13 Pet. 519.)
There is no statute in Kansas forbidding the Kansas City-Bridge and Iron Company from doing business within this state, or imposing any restriction on the exercise of its power. Within the authority of the Comm’rs of Wyandotte Co. v. City of Wyandotte, 29 Kas. 431, the right of the county to build the bridge in controversy is fully justified, under the circumstances of this case. (See also Comp. Laws of 1879, ch. 16, § 23; id. ch. 107, §§ 83, 84.)
Although the county built but a portion of the bridge, it is á free and public one, and connects two public thoroughfares of the county. (The State v. Lawrence Bridge Co., 22 Kas. 438; Goodhill v. Town of Beloit, 21 Wis. 637; Williams v. Inhabitants of Cummington, 18 Pick. 312.)
The statute requiring notice of the -intention to . build the bridge before an appropriation is( made therefor, reads as follows :
“ It shall be unlawful for any board of county commissioners to make an appropriation for building any bridge, unless notice of the intention to build such bridge has first been published in the official paper of the county at least thirty days prior to the time fixed for a regular meeting of the board, which notice shall specify the place whére such bridge is proposed to be built, and the estimated cost of the same, and no appropriation for building any bridge shall be made except at a regular meeting of the board.” (Laws of 1876, ch. 64, §2; Comp. Laws of 1879, ch. 25, §396.)
The publication was for the required time, as provided by the statute, and therein gave notice of the intention of the board of county commissioners to appropriate, at a regular meeting of the board in the following April, $1,000 to build a bridge to connect with the west end of the bridge then in construction between Wyandotte and Kansas City. We think the notice was in substantial compliance with the statute, and the objection made hypercritical.' The notice of the intention of the board of county commissioners to appropriate money to build the bridge in question was in substance a notice of the intention of the board of county commissioners to build the bridge, and such notice served all the purposes the statute was intended to accomplish. The record, however, contains the stipulation that all objections to the regularity of the proceedings leading up to the construction of the bridge were waived at tbe trial upon the appeal.
In addition to the reasons given by the trial court for refusing the claim of the bridge company, counsel for the board of county commissioners insists that as the work for which the claim of the company is presented is for the building of the eastern span of the Riverview bridge, and not for a completed structure, the board has no authority to make the contract or pay for the work done; and second, that no sufficient bond was executed, as provided for-by §23, ch. 16, Comp. Laws of 1879. The statute provides that when the expense of building a bridge exceeds $2,000, no appropriation shall be made out of the county treasury until the question has been submitted to the people of the county at some general election, whether the county commissioners shall make an appropriation therefor. This provision in the statute is to limit the power of the county board in making appropriations for the building of bridges. (Comp. Laws of 1879; ch. 16, § 30.) If the expense is less than $2,000, the appropriation may be made without the vote of a majority of the electors, if notice, of the intention to build the bridge is published as required by law. In this case, the contract for work to be expended on the bridge was limited to $980. As we understand the record, when the portion of the bridge built under the order of the county commissioners was completed, the whole structure was completed, and as completed, the bridge connected two public thoroughfares of the county. We do not think the statute forbids private parties or corporations from assisting the county in constructing a bridge, and thereby decreasing the expense of building the same. If all the parts of a county bridge are built by private parties or by a corporation, except the approach or a single span, and the county commissioners by building such approach or span can obtain for the county a complete structure, that is, a whole bridge fit for use, there is nothing in the statute to prevent the county commissioners from accepting and completing such a structure or bridge. Of course a county board could not build a single span, costing $2,000 or less, under the guise of a bridge, and when the span is completed, build another span, and in this way evade the statute by building a bridge by piecemeal, costing in the aggregate over $2,000 but the different parts thereof costing less than $2,000. In this case, while the whole structure cost more than $2,000, the portion» built by the county cost less than $2,000, and the county did not intend to build the bridge by piecemeal, so as to expend more than $2,000, but accepted a bridge about completed by adding .or building thereto a span or approach. There was no evasion of the statute, and the power exercised was within the authority conferred. Although the county commissioners built only a part of the bridge, the bridge is a public one and the control thereof is in the public. (Bell v. Foutch, 21 Iowa, 119; Yant v. Brooks, 19 id. 87; Barrett v. Brooks, 21 id. 145.) The statute provides that at the time of the execution of a contract for the building of a bridge, the person or persons to whom the contract is awarded shall execute a bond, with sufficient ^ 7 sureties, payable to the -county for the benefit of the bridge fund, in such sum as the board shall direct, conditioned for the faithful performance of the contract. The bond actually executed is payable to Wyandotte county, and thereafter recites “and state of Kansas.” “And” may be construed as “in;” but even if this were not so, the word “and” may be rejected as surplusage, and then the bond is payable to the county of Wyandotte only. The failure to state upon the face of the bond that the same is payable for the benefit of the bridge fund, does not vitiate it or render it invalid. The objection to the language of the bond after the bridge has been completed and accepted in accordance with the contract, is a novel way to escape the payment of a just claim.
The judgment of the district court will be reversed, and the cause remanded with direction for judgment to be entered in favor of the Kansas City Bridge and Iron Company.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by William B. Stevens against the Missouri Pacific Railway Company, to recover forty-five dollars as damages for the killing of a cow on September 18,1883, upon a public highway, about three miles southwest of the city of Atchison. There was evidence before the jury tending to show that the whistle attached to 'the engine of the train doing the injury was not sounded at least eighty rods from the place wheré the railway crosses the highway. There was also evidence before the jury tending to show that one of the persons in charge of the drove of cattle, when about to cross the highway, as the train was approaching, was on the track on horseback, waving his hat; that no attention was paid to this, and no attempt made to slacken the speed of the train, or to prevent it from running into the drove. Therefore there was sufficient ¿vidence before the jury to sustain the verdict. (Comp. Laws of 1879, ch. 23, § 60; Railroad Co. Rice, 10 Kas. 426; Railroad Co. v. Phillippi, 20 id. 12; Railroad Co. v. Wilson, 28 id. 637.)
Counsel for the company assert that the killing of the cow was not caused by the omission to sound the whistle of the engine. In support of this, it is said that the plaintiff testified he heard the engine about half a mile away; that he could see the smoke at that distance, and therefore it is argued that he had ample notice of the train approaching the crossing. The evidence on the part of the plaintiff was to the effect that the train was about sixty or seventy rods from the crossing when he and his employé in charge of the drove of cattle— about forty in number—first saw it; that it was then running at the rate of fifteen miles an hour; that at the time, the drove were near to or upon the track; that the whistle was not sounded until the engine was close to the cattle; that a part of the cattle crossed the track, and the employé on horseback waved his hat from the track as a signal to the train to stop, and at the same time tried to keep the remainder of the drove, which had not crossed over, off the track. As soon as the parties in charge of the cattle saw the train coming, they did all they could do, according to their evidence, to save the cattle from being run over.
Although it is shown by the plaintiff’s testimony that he heard the engine of a train puffing, more than half a mile from the crossing, and also saw the smoke of a train, he was not bound to conclude therefrom that the train would cross the highway, unless the whistle sounded three times, at least eighty rods from the crossing; but it is not conclusive from the evidence that the plaintiff thought the smoke he saw, and the puffing of the train he heard, was upon defendant’s road which crossed the highway where the cow was killed. In answer to one question, he said that it “might have been.on the Omaha extension of the Missouri Pacific.” This road did not cross the highway, but the Santa Eé and the Central Branch of defendant’s road did.
At the time of the killing of the cow the regular passenger train crossed the highway each day at about three o’clock p. m., and the next regular train passed at five p. M. It was usual for Stevens to drive his cattle from his pasture over the crossing to his barn to feed, soon after the three o’clock train passed. He was driving his cattle from his pasture at the usual time on the day that his cow was run over. The train that ran into the drove séems to have been an extra or an irregular one, and therefore Stevens could not have anticipated that the train he heard a half-mile distant would pass the crossing, unless the whistle was sounded eighty rods therefrom.
We perceive no error in permitting the witness Bardshar to testify that the train doing the injury was an extra or an irregular one. Pie had worked for Stevens for several months before .the killing of the cow, and had lived all this time at his house, which was very near the track. He had crossed the track where the cow was killed, about twice a day from the first of July previous, and was able to tell the time the regular trains crossed the crossing; therefore he had sufficient knowdedge of the running of the trains to testify.
The court directed the jury—
“That it was the duty of the plaintiff'to keep a lookout for trains, and not to drive his cattle upon or across the track at a time of apparent danger; and it was the duty of the servants of the defendant to keep a lookout for obstructions at crossings, and if cattle were seen on the track in time to prevent injuring them, to exercise ordinary care in endeavoring to do so, but if the animal killed got upon the track • so suddenly, and so near to the approaching train,, as to make it impracticable to prevent the injury, then there could be no recovery for the loss of the animal, unless upon the ground of a failure to sound the whistle, causing the plaintiff and his servant to act differently in the management of his cattle from what he would have done if it had been sounded.”
With the direction given, there was no material error in refusing the instruction of the company as to the duty of the plaintiff taking proper precautions in crossing the track with his cattle.
The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution brought in the district court of Eiley county, charging J. F. Holden and Hiram Hamilton with the larceny of a gelding and a mare, the property of Mahlon Parsons. The case was tried before the court and a jury, and the defendants were found guilty, and each was sentenced to the penitentiary for the term of four years. They now appeal to this court. ' The principal grounds urged by the defendants for a reversal of the judgment of the court below are as follows: 1. Incompetency of the defendants’ own counsel. 2. Neglect and failure on the part of the court to properly protect the rights and interests of the defendants. 3. Incompetency of much of the evidence introduced on the trial. 4. Leading questions asked by the attorney for the prosecution. 5. Erroneous and misleading instructions given by the court to the jury. 6. Insufficiency of the evidence for a conviction, it being in part the evidence of a supposed accomplice, and claimed to be unreasonable in itself and not corroborated by the other evidence. 7. The hearing of the defendants’ first motion for a new trial in the absence of the defendants. 8. The refusal of the new trial, notwithstanding the newly-discovered evidence.
While it is possible that a trial court, in the exercise of a sound judicial discretion, might properly in some rare instance grant a new trial on the ground of incompetency of a party’s own counsel, yet we have never known or heard of a case where such a thing was done. In the present case, the defendants were defended by two counsel, one of whom was appointed by the trial court seven days before the trial was commenced, and the other appeared in the case on the trial without any showing as to how or by whom he was appointed or employed. Presumably, however, he was employed by the defendants themselves or by their friends. But were the defendants’ counsel incompetent, or did such counsel improperly manage the defendants’ case? We cannot say that the record shows incompetency, or any such unwarranted neglect or mis management of the case as would justify a reversal of the judgment below. It is true that the. record shows that some of the evidence of the prosecution, apparently incompetent, was permitted to go to the jury without any objection on the part of the defendants’ counsel; and it is also true that many of the facts and circumstances proved by the prosecution, and which were apparently very damaging to the defendants’ case, were left wholly uncontradicted and unexplained by any evidence introduced by the defendants’ counsel. But it may also be true that all this was really in the interest of the defendants. It may be that objections to any of this evidence, because of its apparent incompetency, would have led to the proof of other facts which would have rendered it competent. or would have shown the defendants’ guilt much more conclusively than it was shown by this apparently incompetent evidence; and it is possible also that an attempted denial or explanation of the facts proved by the prosecution and not' denied or explained by the defense would have resulted in the proof of the defendants’ guilt much more conclusively thau in fact their guilt was proved. It is to be presumed that counsel knew best what evidence to object to, and whether it would be safe to attempt by the introduction of other evidence to deny or explain the facts proved by the prosecution. It is possible, indeed, that the fewer of the real facts, tending to show guilt or innocence on the part of the defendants, that were disclosed, the better for the defendants. We do not think that the defendants are entitled to a reversal of the judgment of the court below because of any incompetencj^ on the part of their counsel.
We have failed to perceive any such neglect or failure on the part of the court below to properly protect the rights and. interests of the defendants as will require a reversal of its judgment. No material evidence prejudicial to the rights aud interests of the defendants was erroneously permitted to go to the jury over the objections of the defendants; and no material evidence favorable to the rights or interests of the defendants was erroneously excluded over their objections. No leading question was erroneously permitted to be asked over the objections of the defendants. No exception was taken to any of the instructions given by the court to the jury; and, besides, we think the instructions that were given were all proper as correct propositions of law, and applicable to the case; and no instruction was refused. Indeed, we do not think that the court below committed material error in any respect. And we think the defendants J t A . had a fair trial. A trial court is not bound to ex-elude evidence because it appears to be incompetent, where no objection is made by any of the parties; nor do we think that a trial court is bound to order that certain evidence shall be introduced where no party is seeking to introduce the same. The defendants’ present counsel, however, seem to think that the defendants were the especial wards of the court, and that the court was bound to know what was best for the protection of their rights and interests, and was bound to protect the same to the same extent that counsel ordinarily do. This is a mistake. The court sits merely as arbiter between contending parties. Of course the court ought never to sentence a convicted person criminally unless the court believes him to be guilty; nor should the prosecutor ever ask the court to do so unless the prosecutor also believes him to be guilty. We presume, however, in this case, that both the court and the prosecutor believed at the time when the defendants were sentenced that they were guilty. And in all probability they were. At most, we cannot say that they were not or are not guilty. We think we have sufficiently disposed of all the grounds for a reversal of the judgment of the 'court below down to the sixth.
As to the sixth ground for a reversal, we would say that ■ we think there was ample evidence to support the conviction of the defendants. The accomplice’s testimony, if true, was enough, and it was corroborated in several particulars by the other evidence, and the instructions of the court below were correct and amply sufficient upon this subject.
It is claimed that the hearing of the defendants’ first motion for a new trial was in the absence of the defendants; but there is no showing of this kind in the record; and hence it is unnecessary for us to express any opinion as to whether such a thing would be correct practice, or not.
It is further claimed by the defendants, that a new trial ought to have been granted on the ground.of newly-discovered evidence. Now it does not sufficiently appear that the evidence supposed to be newly-discovered evidence was really newly discovered; but if it was, still it does not appear that such evidence could not have been procured and introduced on the trial by the exercise of reasonable diligence. The offense for the commission of which the defendants were prosecuted, was committed on the night of July 5, 1885. The defendants were arrested for such offense on September 1, 1885. One of the counsel for the defendants was appointed for them on September 7, 1885. When the other was appointed or employed is not shown. The trial was commenced and completed on September 14,1885; and the defendants’ first motion for a new trial, and all their affidavits relating to newly-discovered evidence and for a new trial, were filed on September 15, 1885; and all these affidavits were from persons whose testimony could have been procured and introduced on the trial, and out of the nine persons whose affidavits were filed, four of them did in fact testify on the trial, and in behalf of the defendants. In all probability these affiants were all present at the trial except one, who was in jail, and his testimony could have been had if the defendants had desired the same. Other objections might be mentioned to the supposed newly-discovered evidence, but we do not think that it is necessary.
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 to restrain the collection of a tax of seven mills levied to pay certain bonds. An application for a temporary restraining order was refused, and this ruling is the alleged error. It does not appear that any evidence other than the verified petition was presented upon such applieation, though so far as anything in the record is to the contrary there may have been abundance of contradictory testimony. Upon this verified petition ought a temporary restraining order to have been made? The only allegation bearing upon the illegality of the tax is, that the defendant, the county treasurer, is threatening to collect a tax levied on the yeal estate in “Blue Bapids City township for the purpose of paying certain pretended bonds illegally issued for the purpose of building a bridge across the Big Blue river at the foot of Main street, in or near the city of Irving, in the said county of Marshall; and plaintiff further alleges, that the said bonds were never issued by the said Blue Bapids City township, and that neither the hereinbefore described property of this plaintiff, nor any property in the said township of Blue Bapids City, is liable for the said bonds, or any part thereof, and that the said levy of the said tax on the said real estate of this plaintiff, and on all other real estate of said township, is illegal and void at law.” Counsel contend that “the petition shows that the treasurer is attempting to collect a tax which is illegal in two respects, first, that it is levied to pay bonds which were illegally issued; second, that this township never issued said bonds,” and that therefore the tax being illegal its collection should be enjoined. We think counsel errs in the conclusion he draws, and from overlooking two considerations. First — that the petition is made in this case to subserve two purposes, that is, that of a pleading, and that of evidence; and second — that there are ofttimes considerations which ■ upon the same testimony will forbid a temporary restraining order when upon final hearing they will require a permanent injunction. Now it may be sufficient to state in a petition that bonds were “illegally issued,” but it would manifestly be improper for a witness to so testify. It is not a fact of which he may speak, but a conclusion of law to be drawn from the facts to which he testifies. Doubtless witnesses do often speak of matters being duly and legally done, but it is either where there is no objection, or where the matter is collateral, or not seriously questioned, and never where it is the' substantial matter in dispute. Where the petition alleges illegality, and the time to answer having passed, and none has been filed, or one tendering no issue upon the illegality, the illegality may" be taken as admitted, and the court may act upon such admission. But where the answer-day has not arrived, the illegality is not admitted; and the petition, though verified, is to be construed as any affidavit or other testimony.
We have in several cases of late referred to the fact that often a court is justified in refusing a temporary restraining order, and requiring the plaintiff to wait until the final disposition of the case, even where the preponderance of the evidence on the application is in favor of the right to a restraining order. A preliminary injunction is not a matter of strict right. It is not like an order of attachment, which goes upon the filing of a statutory-affidavit and bond. Its issue rests with the sound discretion of the judge. If the rights of the plaintiff can be as well secured by the final injunction, and are not prejudiced by a refusal of the temporary restraining order, it ought to be refused. If the injuries which will result to the defendant if the order is erroneously-granted will greatly exceed the benefits which will issue to the .plaintiff from its issue, if properly issued, the court may sometimes properly decline to grant it. And in all cases there should be a full and clear showing of the facts, that the court may act advisedly, and upon a clear understanding of the whole case, otherwise there is the liability not only to commit an error but also thereby to inflict a wrong upon the defendant which cannot be adequately compensated. See Stoddart v. Vanlaningham, ante, p. 18; Akin v. Davis, ante, p. 144; Conley v. Fleming, ante, p. 381. Now in this case there is far from that full showing of the facts which ought to be made to-requiré the issue of a temporary restraining order. We feel after reading the petition that we are illy informed as to the real facts of the case, or matters of actual contest. The petition alleges that the bonds were never issued by Blue Rapids City township. Counsel for defendant in error refers to an act of the legislature of 1870, (Laws of 1870, ch. 23, p. 57,) authorizing Blue Rapids township to issue bonds to build a bridge at the place named in the petition, and also cites an act of the legislature of 1873, (Laws of 1873, ch. 142, p. 267,) which declares that all bonds heretofore or hereafter issued by any county or township shall be a lien upon all the real estate of such county or township — that no change in the boundaries shall affect this lien, and provides, in case of a change of’ the boundary of a county, for the collection of the tax upon the real estate which has ceased to be a part of the county issuing the bonds. But whether the contest is upon the constitutionality of these acts, or whether indeed either of them has any application to the bonds in question, is mere matter of conjecture; and it would be manifestly improper for us to be deciding questions which are not in the case, and may never actually arise. It seems evident, from, the fact that the regular collecting officers are attempting to collect a tax for these bonds, that there is at least some pretense of their validity; and before a court should interfere to restrain the collection of taxes for their payment, it should be fully advised of the circumstances under which they were issued, or are claimed to have been issued, and the facts, whatever they may be, which are claimed to invalidate them.
For the reason that we are not so advised we cannot say that the district judge erred in refusing the temporary restraining order, and his decision and order of refusal will be affirmed.
It is understood that the case of Means v. Koester is similar to this, and the same judgment will be entered therein.
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The opinion of the court was delivered by
Brewer, J.:
Appellant was convicted in the district court of Coffey county of the crime of grand larceny, and from this conviction brings his appeal to this court. The errors .alleged are in reference to the instructions, and in overruling .a motion for a new trial.
With reference to the first we have little difficulty. The rulings of the court were unquestionably correct. For instance, the appellant asked the court to instruct . , the jury that if one witness, naming him, testified willfully falsely, etc., they must disregard his entire testimony. Instead of this the court charged that if any witness testified willfully falsely, etc. The latter is the proper way. To single out a witness, and by name give such an instruction in reference to him, suggests a suspicion if it does •not imply a belief on the part of the court of the witness’ perjury.
Again, the court was asked to charge that “ taking is a material part of larceny, and must be established by competent evidence.” Instead of this the court charged that the jury must be satisfied that “defendant stole, took ° ’ . _ . _ . _ and carried away, etc.; “and that if A. should feloniously take into his possession the property of B., and immediately deliver the same to C., this would be a suffieien t •taking and carrying away to constitute the crime of larceny in A. There was nothing to emphasize the question of “taking.” The larceny charged was of a horse. It was turned by the owner into a pasture at night. Before morning, in pursuance of a previous arrangement, it was handed by the defendant to his accomplice, and by the latter taken immediately to Olathe, and sold. We see no error in this charge of the court.
The main witness for the state was an alleged accomplice. Upon this counsel for defendant asked these two instructions:
“The testimony of Allen Roberts.is that of an accomplice, and must be corroborated by evidence tending to convict the defendant of the offense charged, or the jury must acquit the •defendant.
“Allen Roberts stands before the jury and court in the character of an impeached witness. As such, his testimony requires confirmation.”
These instructions were refused, and instead thereof the following was given:
“The jury are charg'ed that the admission of accomplices (to testify) as witnesses for the state is permitted and justified by the necessities of the case, it often being impossible to bring the principal offender to justice without their testimony. But in determining the weight and credit to be given such testimony, the jury should use great caution; and unless the testimony of the witness Allen Roberts is corroborated by other evidence in some material point in issue, the defendant should be acquitted, as it would be unsafe to convict upon the sole and uncorroborated testimony of an accomplice.”
Under this instruction it is claimed by counsel that the witness might be corroborated as to the fact of the larceny, but in nothing tending to connect the defendant with it, and that under such circumstances it would be improper to convict. We do not think the jury were misled. The testimony of the witness Roberts did not go at all tó the circumstances of the taking. He was not present at the time. The horse was brought to him by the defendant, after it had been stolen. His testimony related to the disposition of the horse thereafter, and the connection of the defendant with the transaction. Corroborating testimony is that which supports the testimony already given, not that which proves an entirely different part of the case. So Allen Roberts, to have been corroborated, must have been sustained as to some of the facts as to which -he testified. These are the principal questions made upon the instructions, and in them we see no error.
A motion for a new trial was overruled. Upon this, two questions are presented; 1st, The verdict was not sustained by the evidence; and 2d, There was newly-dis- ... .. covered evidence. W e think the verdict was sustained. The owner of the horse testified to placing his horse in the pasture at night, and its disappearance before morning, and to finding it in a few days at Olathe. Roberts testified to an arrangement between Kellerman and himself for stealing a horse; that Kellerman, in pursuance thereof, on the night said horse was stolen brought it to him, and he rode it to Olathe and sold it; that he sold it for $60, of which he received $10, and was to receive the balance when he “ sent up a title.” That he went back and obtained from Keller-man his “title.” This title was produced and read as follows; “I, C. B. Kellerman, a resident of Coffey county, Kansas, duly authorized Allen Roberts to sell my bay horse which left here July 23d, 1874, which he says he sold in Olathe, Saturday, July 25th, 1874. — C. B. Kellerman.” When testifying’in his own behalf, Kellerman admitted the writing and signing of this paper. This we think was very strong corroboration of Roberts' testimony. True, he attempted to explain the writing, but the explanation was far from satisfactory.
We think also that the showing of newly-discovered evidence was insufficient. The only testimony offered was the affidavit of one of the counsel for the defendant, . - . , that two of the witnesses on the former trial would testify to additional facts of which neither the defendant nor his counsel were aware before the retirement of the jury. Neither the affidavit of the defendant nor that of either witness is presented, nor any excuse shown for not producing them. It is laid down in Graham & Waterman on New Trials, (vol. 3, p. 1065,) as essential that “the affidavits of the newly-discovered witnesses should be produced, or their absence accounted for.” And again, on page 1067, that “the information must come directly from the newly-discovered witnesses, so that it may appear just what they know, and what they are ready to testify.” To like effect are the authorities cited on the same and succeeding pages. See also, Manix v. Maloney, 7 Iowa, 81; Keough v. McNitt, 6 Minn., 513. While this rule may not be of absolute and universal application, and while cases may arise in which the showing of newly-discovered evidence is so full and satisfactory that a new trial ought to be granted, even without the production of the affidavits of the new witnesses, or any explanation of their absence, yet for all ordinary cases the rule is a good one, well supported by authority, and ought to be enforced. If a defendant could by his own affidavit of newly-discovered testimony secure a new trial, it would soon be found that verdicts of guilty rested on very slippery foundations. In this case, it appears from the record that these witnesses were residents of the county, that they were present at the trial, and it does not appear that they had since absented themselves, nor is any intimation or excuse given why their affidavits were not produced. This we think'fully justified the court in overruling the motion for a new trial. Nor is the testimony itself of .such conclusive a character that we should feel warranted in holding that the court erred in refusing a new trial on account of it. The owner of the horse has testified that he saw, at or about the place where his horse had evidently been taken out of the pasture, “the track of a very fine boot;” that a neighbor of his measured it, and produced before the court and jury the measure. Now the affidavit states that such witness would testify that he had measured the tracks made by the accomplice and witness Allen Roberts, since the commencement of the trial, and that such tracks were identical in form, appearance and length with the tracks seen by himself and others “at the place above indicated, and also that another witness would testify that Roberts had on, during the trial, the same boots that he was wearing a day or two before the larceny.” There is however on the other hand nothing to show that there was anything peculiar about these tracks except that they were the “tracks of a very fine boot” — nothing to show that the boots of the defendant would not have made exactly the same track. And indeed, when the measure of this track was produced on the trial, it seems hardly probable that counsel so acute and skillful as the able gentlemen who conducted the defense, should not have compared it with the track made by the defendant, and if there was any difference between them have called the attention of the jury to such difference. On the whole case we think that the judgment must be affirmed.
All the J ustiees concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action to enjoin the collection of two certain taxes. The defendant demurred to the plaintiff’s petition on the ground that the petition did not state facts sufficient to constitute a cause of action. The court below sustained the demurrer. If either of said taxes should have been enjoined, then the demurrer should have been overruled, for in that case the petition would have stated facts sufficient to constitute a cause of action. One of the taxes was a road tax of $162.62. The other was a tax of $598.55 to pay interest on county bonds issued to railroad companies. The first it is admitted is legal, but it is claimed that the collection of the same at the time and in the manner it was attempted to be collected, is illegal. The second of said taxes it is claimed is illegal and void. Both of said taxes were levied in 1872 for that year, and placed upon the tax-roll of that year. In February 1873 the defendant Bruner, as treasurer of Johnson county, issued his tax-warrant for their collection, and the defendant Clemmans as sheriff of said county was about to collect the same, when this suit was commenced to restrain both of said defendants from collecting said taxes.
Was the attempted collection of said road tax illegal? Section 72 of the tax law reads as follows:
“The county commissioners shall meet on the first Monday in September in each year, and shall estimate and determine the amount of money to be raised by tax for county purposes. Also, all other taxes which they may be required by law to levy.” (Gen. Stat., 1044.)
Sections 21 to 24 of the road law, (Gen. Stat., 905,) read as follows:
“Sec. 21. The board of county commissioners of each county may at the time prescribed by law for levying county taxes, levy a road tax of not more than three mills on the dollar .on all taxable property in their respective counties, except the real estate in incorporated cities of over two thousand inhabitants; and said tax may be paid in labor, under the direction of the overseer of the district in which the property is situated, by any able-bodied man at the rate of two dollars per day.
“Sec. 22, [as it originally wasi] It shall be the duty of the county clerk immediately after súch tax has been levied to furnish to each township trustee a list of the taxable real estate, and persons charged with taxes on personal property within their respective townships, and the amount of road tax chargeable to each tract or person; said list to be furnished on or before the first day of October in each year.”
“Sec. 22, [as amended It shall be the duty of the county clerk after such tax has been levied to furnish to each township trustee of the county a list of all the taxable property, and the amount of all road tax chargeable to each tract of land within their respective townships; said list to be furnished on or before the first day of April in each year.” (Laws of 1872, page 355, § 6.)
“Sec. 23. The trustee of the several townships, after receiving the list mentioned in the preceding section, shall proceed to make out lists of all the taxable real estate within the various road districts, and of persons charged with taxes on personal property, with the amount of road tax chargeable to each tract of land, and deliver the same to the overseer of such district on or before the fifteenth day of October in each year.
“Sec. 24. All road taxes remaining unpaid on the first day of August shall be returned to the township trustee. The township trustee shall before the fifteenth day of August return all such relinquent road taxes to the county clerk, who shall charge the same against the respective tracts of land on the county tax-roll of the current year.”
The road tax we are now considering was levied as provided by law on the first Monday of September 1872. It is claimed that under said § 22 of the road law, as amended, the list of the taxable property and the amount of tax thereon should have been furnished to the various township trustees on or before the first day of April 1873; that under §23 of the road law the township trustees should have furnished like lists to the various road overseers on or before October 15th, 1873; that under § 24 of the road law the unpaid road taxes should be returned by the road overseers to the township trustees, and by the township’ trustees to the county clerks, and that all this should be done sometime between the first and the fifteenth day of August 1874, and that the county clerk should afterward enter such delinquent road taxes on the tax-roll for the year 1874. And it is claimed that under these sections no road tax levied in 1872 could be put on any tax-roll of the county earlier than in 1874. The plaintiff claims that under said sections it had the right to pay said road tax in labor at the rate of two dollars per day for any able-bodied man, and that it had the right to do this at any time from October 15th 1873, till August 1st 1874. This claim seems very plausible, but when examined closely we hardly think it will be found to be sound. It may be that the company would have a right to pay the tax in labor; but if so, we are inclined to think it would have to do so before the treasurer should issue his warrant for its collection, and that the treasurer might issue his warrant therefor at any time after January 10th 1873. We shall now proceed . . . . , . T to give our views upon this subject. In 1872 and in 1873 all property, real and personal, belonging to a railroad company, and u’sed in operating their road, was assessed as personal property. (Laws of 1871, page 331, § 4.) And the taxes levied upon such, assessment were collected in 'the same manner as taxes levied upon personal property. Railroad property, although it may have been real estate, was not sold by the county treasurer on the first Tuesday of May, or at any other time, to pay the delinquent taxes as other real estate was. (Gen. Stat., 1046, §§ 80, 81.) On the contrary, the county treasurer on or before the 10th of January issued his warrant to the sheriff to collect the same, and they were collected in the same manner as other delinquent taxes upon personal property. (Laws of 1871, page 334, §11; Laws of 1869, page 339; Gen. Stat., 1059, §423.) Railroad property was in fact under the tax laws governed by the same rules, and treated in the same manner, as personal property, although the larger portion of the same may have been real estate. As we have before seen, it was the duty of the county commissioners to levy the road tax as well as almost all the other taxes. (Gen. Stat., 1044, §72; id., 905, §31.) And except when otherwise provided, all the taxes levied by the county commissioners under said § 72 of the tax law, were by the county clerk immediately placed upon the tax-roll of the county for immediate collection by the county treasurer. We have already'given section 72 of the tax law.; and we now call attention to § 73 of said law. It reads as follows:
“Sec. 73. The county clerk, immediately after the first Monday in September, shall proceed to determine the sums to be levied upon each tract or lot of real property, and upon the amount of personal property, in the name of each person, company, or corporation, which shall be assessed equally on all real and personal property subject to the same tax, and set down each tax in a separate column. He shall complete the same, and attach his certificate thereto, and deliver it to the county treasurer on or before the first day of November, and shall charge the treasurer with the amount .of the respective taxes assessed on the tax-roll.” (Gen. Stat., 1044.)
' In 1872 and in 1873 there was no provision in any of the statutes authorizing the county clerk to do' anything with the road tax levied by the county commissioners upon personal property, except to immediately place it upon the tax-roll of the county for immediate collection by the county treasurer as other taxes upon personal property are collected. There was no provision authorizing the county clerk to furnish the various township trustees of his county with the amount of road tax levied upon personal property, nor was there any provision authorizing him to furnish said trustees with the names of persons charged with road tax levied upon personal property. He simply furnished said trustees with “the amount of road tax chargeable to each tract of land within their respective townships.” (See section 22 of the road law as amended; Laws of 1872, page 3'55, § 6.) We have quoted said § 22 as it originally stood, and as amended, and have italicised those portions of each which differ from those of the other, or which are not found in the other. The differences therefore between the original section and the amended section will be obvious; and these differences will show clearly the intention of the ■ legislature. Therefore, as all railroad property must under said tax laws be treated as personal property, and as the county clerk was not under said laws authorized to furnish to the various township trustees the various amounts of taxes levied upon personal property, or with the names of persons charged with road taxes levied upon personal property, and as said clerk was not authorized to do anything else with said road taxes except to place them upon the county tax-roll for immediate collection, it would seem to follow, under said § 73 and other sections of the tax laws, that the county clerk must put all the road taxes levied upon railroad property, as well as those levied upon personal property in general, upon the county tax-roll to be collected the same as other taxes levied upon personal property.
II. Was the tax levied to pay interest on county bonds issued to railroad companies, invalid ? It will be presumed that said tax was valid, unless the contrary has been shown by the plaintiff in its petition. Have they shown the contrary ? They allege that the county treasurer and state treasurer have been enjoined at the suit of county commissioners from paying any interest on said bonds. The grounds upon which the county commissioners obtained said injunction are as follows: The commissioners “set up as a fact, that said bonds and all of them are void, and issued without authority of law, and that said interest so levied on said assessment-roll of said county is wrongfully levied, and is of right not the property or moneys of said companies to which said bonds were issued.” The plaintiff in the present suit does not say that said bonds are void: it merely says that the county commissioners say so in their suit. And the plaintiff in the present suit does not say that the county commissioners’ suit has ever been terminated. We should judge from the allegations in the plaintiff’s petition that the injunction granted to the county commissioners to restrain the county treasurer and state treasurer from paying any interest on said bonds was merely a temporary injunction; an injunction pendente lite, to stop the money in the hands of the county and state treasurers until it could be determined to whom the money belonged. Such an injunction determines no person’s rights. Such an injunction will not prevent the county treasurer and the sheriff from collecting taxes to pay interest on said bonds. But even if said county commissioners’ suit has been terminated, and said injunction were a perpetual injunction, still it might not prevent the treasurer and sheriff from collecting said taxes. The county treasurer, state treasurer, and the railroad companies to whom said bonds were issued, were parties defendant in the said commissioners’ suit. Now, suppose the railroad companies had parted with all the interest they had in said bonds before said suit was commenced: are the real owners of the bonds, who were not parties to the suit, to suffer because' these merely nominal parties, the county treasurer, state treasurer, and railroad companies may have allowed (possibly with their consent,) judgment for a perpetual injunction to be rendered against them ? There is no allegation in the plaintiff’s petition that the railroad companies owned said bonds when said suits were commenced. There is no allegation in fact that the county commissioners alleged that said railroad companies owned said bonds when their suit was commenced. Possibly the county treasurer, the state treasurer, and the railroad companies were all very willing that injunctions should be granted, restraining the officers from paying said interest; for possibly the interests of all of them were on that side. They may all have been large taxpayers in Johnson county, without having any interest in the bonds. We decide this case however upon the belief that said injunction was only a temporary injunction.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
In this case the service of the summons was made on the defendants below (plaintiffs in error) on the return-day thereof. Such a service is irregular and voidable, and a judgment founded thereon may be reversed, vacated or set aside at the instance of the judgment-debtor, in any proper proceeding therefor, provided no waiver of service has been had in the case by appearance or otherwise. (Dutton v. Hobson, 7 Kas., 196; Armstrong v. Grant, 7 Kas., 285.) In the present case there was an appearance by all the defendants below in about the same form. The appearance of G. M, Simcock is in the following form, to-wit:
“And now comes the defendant G. M. Simcock, by his attorneys Hughes & Bradley, and appearing for the purpose of this motion only moves this court to dismiss the above-entitled action, and to set aside the summons in said action so far as Simcock is concerned, for the reason that said summons in said action was served upon said Simcock on the return-day of said summons. Said summons was issued by the clerk of said court on the 19th of February 1874, and was made returnable on the 23d day of February 1874, and was served on said Simcock on said 23d of February.
“Hughes & Bradley, Attorneys
For G. M. Simcock for the purpose of this motion only.”
The appearance in this motion was a special appearance merely for the purpose of contesting the jurisdiction of the court — merely for the purpose of contesting the regularity of the service of the summons, and cannot be construed into a waiver of jurisdiction, or a waiver of service. The motion itself shows that the appearance was for the purpose of the motion only, and that the attorneys were attorneys for the purposes of the motion only. And it also shows that the purposes of the motion were to contest the jurisdiction of the court, and the service of the summons, and not to waive jurisdiction and service. And we do not think that jurisdiction or service, or indeed anything else, was waived by said appearance. Nor did said appearance cure the irregular service already made. Possibly the court below did not err in overruling said motion as it'was made — the motion not being to set aside the service of the summons, (as it should have been made,) but to set aside the summons itself and to dismiss the action. But after the motion was overruled, then what was the court below to do? The plaintiff gave the court no alternative but to render judgment on said service, or to dismiss the action. Now if the court had dismissed the action under such circumstances, probably it would not have erred. (Branner v. Chapman, 11 Kas., 121.) But to render judgment upon such a service, as upon a default, as the court below did, was such an error that this court must reverse the judgment. (Dutton v. Hobson, supra.)
We have taken no notice of the irregularity in issuing the summons, in making the return-day thereof only four days from the date thereof, instead of ten days, as neither counsel has called our attention to it. We have considered the summons as though it was regular in every respect, and the full time given'in which to return the same and in which to answer.
Judgment reversed, and cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
This was a prosecution for an alleged violation of the statute in selling intoxicating liquors on Sunday. The complaint was made and the case tried before a justice of the peace of Franklin county, and the defendant convicted. From this conviction he appealed to the district court, when on a trial by a jury he was again convicted. A motion was then made in arrest of judgment, which motion was sustained. From this decision an appeal is taken by the state. A defect in the allegation as to venue, is the only-ground on which the motion was sustained. The venue is laid thus in the margin: “ State of Kansas, County of Franklin, City of Ottawa, ss.” In the body of the complaint the particular lot, block, and house, in the city of Ottawa, and county of Franklin, where the offense was alleged to have been committed, are stated, but not the state, nor is there a reference to the venue laid in the margin; but the complaint alleges that the offense was committed “against the peace and dignity of the state of Kansas.” Was this a defect? and if so, was it a fatal one,' on motion in arrest of judgment ? If so, it must be because of some absolute rule of law. For it is obvious that the accused could not have been misled or injured by it. From the complaint he must have known the exact location in the city of Ottawa and county of Franklin where the offense was alleged to have been committed. He could not have been more certain of the exact locality, had the name of the state been added to the venue in the body of the complaint. What then is the rule of law? Mr. Bishop lays it down thus: “It is customary in the United States to write the name of the state in the margin, in connection with the name of the county. But there is no need that the name of the state should appear, either in the margin or in any other part of the indictment.” 1 Crim. Prac,, § 106. The rule as thus stated is supported by the following cases: The State v. Jordan, 12 Texas, 205; State v. Lane, 4 Iredell, 113; Com. v. Shaw, 7 Metc., 52; Com. v. Quinn, 5 Gray, 478. In this case we need not go as far as these authorities justify, for the offense is alleged as against the peace and dignity of the state of Kansas, which could not well be true unless the offense was committed within the state. This court and all courts must judicially know that the county of Franklin is in the state of Kansas, because it is established by statute, and its boundaries fixed by law. If it be said that there may be other counties of the same name in other states, then the answer is, an offense committed in one of them is not against the peace and dignity of this state. We think the venue sufficiently appears, and the complaint is not defective on that ground.
The order of the district court arresting judgment is reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action on a promissory note, and to foreclose a certain supposed equitable lien on certain real estate. The principal question involved in the case is, whether any such lien has any actual existence. Some other questions however are suggested by counsel which we shall also consider.
I. Upon the point made by counsel for plaintiff in error (defendant below) that, there were two causes of action attempted to be stated in. the petition of the plaintiff below, while only one was in fact stated, and that the court below erred in overruling a motion of the plaintiff in error to strike out the second supposed cause of action, and also erred in overruling a demurrer of the plaintiff in error to said second count, see Andrews v. Alcorn, 13 Kas., 351. That case was a much stronger case‘for reversal upon such a point than this, but still we held in that case, as we must hold in this, that no substantial error was committed by the court below.
II. The main question in the case is, do the facts of this case constitute an equitable lien upon said real estate ? The facts are substantially as follows: The Missouri Biver, Fort Scott & Gulf Bailroad Company sold a certain piece of land to Benjamin Kerchner. The purchase-money was not all paid down, and no deed of conveyance was executed, but the parties reduced to writing the nature and character of their transaction; both parties signed said writing, and the instrument embodying the same was then placed in the possession of said Kerchner. The instrument provided for Kerchner taking possession of the land, cultivating it, making improvements thereon, paying the- deferred payments for the land, and the company making a deed of conveyance to him or his assignee. Afterward Kerchner sold said land to Leander Curtis, plaintiff in error, received a portion of the purchase-money down, and took a promissory note for the balance. Kerchner himself, having no deed for the land, merely assigned his contract with the railroad company -to Curtis. It was suggested that Kerchner should take a mortgage on the land from Curtis to secure the payment of said promissory 'note, but the parties in lieu thereof finally agreed to deposit said written instrument which Kerchner had received from the railroad company with a third person, to be held by such third person until Curtis should pay said promissory note, and then to be delivered (with the assignment thereon) to Curtis. The parties understood that said written instrument was to be held by said third person as a security for the pay ment of said promissory note, and to answer the purposes of a mortgage. Afterward Kerchner - sold and assigned said promissory note to Robert R. Buckley, defendant in error. This note was not paid at maturity, was protested, etc., and then Buckley commenced this action against both Kerchner and Curtis, asking for a judgment on the note for the amount thereof with interest, protest fees and damages, and also asked to have said land sold to satisfy said judgment. Kerchner was not served with summons, and the trial proceeded against Curtis alone. Judgment was rendered by the court below against Curtis, as asked for by Buckley, and Curtis now asks to have that portion of the judgment reversed which ordered the land to be sold, and which gave to Buckley protest fees and damages.
It seems to be admitted that the railroad company had a good title to said land at the time they sold it to Kerchner; but it is claimed by the plaintiff in error that neither Kerchner nor Curtis ever had any title, legal or equitable. 'Whether,either of them ever had any such title or not, we do not think it is necessary now to decide. Kerchner had a legal and valid contract with the railroad company whereby he could obtain title, both legal and equitable, merely by fulfilling his contract. When he complied with all the conditions of said contract he would surely have the equitable title; and having the equitable title, he- could surely compel the railroad company to convey to him the legal title. Whatever Kerchner’s interest in the land may have been, he had the power at his own option to obtain a complete and absolute title. This interest he transferred to Curtis, reserving merely a lien. thereon for the payment of said promissory note. This lien of course does not amount in law to any estate or title, either legal or-equitable; for even a mortgage in this state does not amount to any estate or title, either legal or equitable; (Chick v. Willetts, 2 Kas., 385;) and an equitable lien of this kind is probably of no higher character than a mortgage. It is claimed by counsel for plaintiff in error, substantially, that an equitable lien on real estate, where it has •any real existence, is an interest in land, and cannot be created merely by parol; that the statute of frauds, (Gen. Stat., 505, § 5,) prohibitsJsuch a thing. All of this we agree to; but still the statute of frauds does not attempt to prohibit the creation of equitable liens by operation of law, nor does any other statute. Stevens v. Chadwick, 10 Kas., 406. Such a lien should of course be in accordance with the contract and understanding of the parties affected "by it, but still it may sometimes result by operation of law from the transactions of the parties almost wholly independent of the contract that may be made between them. It results however from the whole transaction, including all the contracts, agreements, and understandings of the parties, parol or otherwise. The lien in the present case was not created merely by parol. It resulted by operation of law from the whole transaction between the parties. It can hardly be said however to have been created at all when Kerchner sold his interest in the land to Curtis. It was more properly reserved by Kerchner at that time as a .part of the interest which he already had.
III. The evidence shows that the note was protested for non-payment by authority of Buckley, the owner thereof. This was sufficient. But the evidence does not show that any notice of the demand of payment, or the failure to pay, was ever given to Kerchner, the indorser of the note. Indeed, there was no legal evidence even tending to prove this offered to be introduced. While the statute provides, that “A notarial protest shall be evidence of a demand and refusal to pay a bond, promissory note, or bill of exchange, at the time and in the manner stated in such protest, until the contrary is shown,” (Gen. Stat., 117, §18,) yet no statute provides that such protest shall be'any evidence that'the indorser ever received any notice of such demand and refusal. And in the absence of such a statute no mere statement of the notary, in his notarial protest, that he gave the required notice, can be any evidence of such fact, or indeed of any fact material to the case. And where no such notice has been given, and thejndorser through want of such notice has not been made liable on the note, no protest damages can be allowed. (Noyes v. White, 9 Kas., 640.) The court below in this case allowed protest damages, and for this error the judgment must be reversed and new trial ordered, unless the plaintiff below will remit the protest damages. If the plaintiff below shall remit protest damages, then the judgment will be affirmed.
The costs of this court will be equally divided between the parties.
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The opinion of the court was delivered by
Brewer, J.:
Defendant was óonvicted of an assault with intent to kill, and brings his case here by appeal. The questions presented are on the sufficiency of the information, and the instructions upon the effect of intoxication. The information charged that the defendant did feloniously make an assault, and feloniously did shoot and wound, with the intent feloniously and willfully to kill. It did not in the language of §38 of the crimes act charge that defendant “on purpose and of malice aforethought” did'assault, etc. Was the omission of these words. fatal to the information ? The authorities cited by the learned counsel doubtless sustain his claim that it was. But those decisions were made where the strictness of the common-law, rules in reference to indictments obtained. But, as said by Ch. J. Cobb, in reference to two sections of the code of criminal procedure, “These two sections divest the indictment of all artificial and technical construction, and give to its language its natural and ordinary meaning.” Smith v. The State, 1 Kas., 365. While it would doubtless be sufficient to follow the language of the statute in charging a crime, it is not necessary so to do. It is enough if the language used, according to its ordinary and natural meaning, states, clearly an offense within the statute according to the same mapner 6f interpretation of its language. ’ Tried by this rule, we think the information sufficient. It charges an unlawful assault, an assault with intent to kill. Of course, if a party made an assault with intent to kill, it necessarily was not an accidental or unintentional assault. An accidental or unintentional assault, with intent to kill, is an impossibility. The information clearly therefore charges an assault on purpose. So also, if an assault is willful, felonious, and with intent to kill, it is of malice aforethought. For malice aforethought is nothing more than an unlawful or wicked intention. A felonious intent to kill, is an unlawful and wicked intent. All the elements therefore of the crime, as defined in the statute, are embraced in this information, and it is sufficient. In reference to the general rules for determining the sufficiency of criminal pleadings, see criminal code, §§101, 103, 107, 108, 109, and 110, Gen. Stat., 837, 838.
The other error assigned arises upon the instructions given and refused. Some testimony was introduced by defendant tending to show that he was insane at the time of the offense, and some by the prosecution, tending to show that he was intoxicated. Upon this defendant asked this instruction: “To constitute the specific offense charged, it is not sufficient that the commission of the act be proven, but it must be affirmatively shown that the act was done with the particular intent of killing or maiming the prosecuting witness. The jury may infer from the fact of defendant’s being intoxicated at the time of the commission of the act charged, (if such intoxication be proven,) that the act was not done with the particular intent necessary to constitute the specific offense charged.” And another, to the effect, that such intoxication 'was evidence from which the jury might infer his innocence of the particular offense charged. These the court refused, but charged the jury that “intoxication, drunkenness, is not regarded in law as any excuse in itself for crime, but may always be shown, and should be considered in all cases where the intent, as in this case, is of the essence or is an indispensable ingredient of the offense, to show the state of mind of the person accused.” Was there error in this ? The difference between the instruction refused, and that given, is, that by the first the court was asked to select drunkenness as a single circumstance, and say to the jury that from that alone they might infer the defendant’s innocence of any intent to kill, while by the other the court charged them that they might consider drunkenness along with the other facts of the case in determining the defendant’s state of mind at the time of the act. The testimony in the case is not preserved in the record, so we do not know what the circumstances of the case were — what evidence there was of the intent to take life, or how great was the intoxication of the defendant. Now there may be cases in which there is such a dearth of other testimony bearing upon the question of intent, and such a complete and stupefying intoxication shown, as to justify a court in singling it out and telling the jury that they may infer therefrom the absence of any intent to take life. But all that a court ought ordinarily to do is to state to the jury that drunkenness is one of the circumstances tending to show the state of defendant’s mind, and thus bearing upon the question of the presence or absence of an intent to take life. And probably in no case would it be error to refuse to go further, or give any more specific charge, The fact of intoxication is not conclusive against , . n . . , ° the existence oí such an intent. The intent may have been formed before the intoxication commenced; it may exist concurrently with it, at least until the intoxication comes to be so great as to be stupefying. So that it is impossible, at least in a case in which the whole testimony is not present, when the court has referred in its instructions to intoxication as one of the facts bearing upon the question of intent, to hold that it erred in not going further and giving special stress to that circumstance. We are not advised as to the instructions given by the court other than upon this matter of drunkenness. We must therefore assume that they were correct, and sufficient; that they stated the elements of the crime, and the necessity of proof as to the existence of each element, and the kind of evidence applicable to each element. Miller v. The State, 2 Kas., 174. It does not appear therefore that the court erred in the instructions given and refused in this case. It perhaps should be remarked, in order to guard against any. misconception as to the relation of drunkenness to crime, that the charge in this case is one which requires something more than a general- malevolent feeling, and where there must be a specific intent to take life, so that nothing herein contained conflicts with the general doctrine that drunkenness neither excuses nor extenuates crime. See upon this general subject, 1 Bishop on Cr. Law, ch. 27, §§ 397-416.
The judgment of the district court will be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by T. K. Johnston, S. C. Smith, J. D. Cochran, W. Q,. Mansfield and J. P. Short, against the Winfield Town Company, to have a certain quitclaim deed set aside and declared null and void. At the trial of the case the court below excluded certain evidence offered by the plaintiffs; and whether the court erred therein or not, is the only question now presented for our consideration. The petition in the court below alleges among other things as follows: The N.E.J of the N.W.J of sec. 28, in township 32 south, of range 4 east, constituted a portion of the town-site of the town of Winfield, Cowley county. The probate judge of said county entered this portion of said town-site at the United States land-office “in trust for the sev•eral use and benefit of the occupants thereof according to their respective interests.” But whether the probate judge ever entered any other portion of said town-site or not, is not shown or stated in the petition. The defendant, a corporation, claimed to own said portion of said town site entered by the probate judge, but their ownership was disputed by the plaintiffs, and others. The plaintiffs were occupants and inhabitants of said town-site, and had and still have an interest therein; but whether any one of them ever was an occupant or inhabitant of that portion of said town-site claimed by the defendant, or ever had any interest therein, is not shown or stated in the petition.' The plaintiffs and thirty other persons, in pursuance of a verbal agreement, made a quitclaim deed to said defendant for that portion of said town-site claimed by said defendant. The consideration expressed in the deed was one dollar paid to each of the grantors, the receipt of which they each acknowledged in the deed. According to said verbal agreement the defendant was to pay each grantor one dollar, and obtain a quitclaim deed from each occupant of said town-site. This was not done, and the plaintiffs now complain. But how such a quitclaim deed from each occupant of the town-site to the defendant could be a consideration for the quitclaim deed from the plaintiffs to the defendant, or how it could be of any benefit to the plaintiffs, is not disclosed, and cannot easily be imagined. Whether such a quitclaim deed would be a benefit to any one, is not stated in terms. But if it should be a benefit to any one, it would certainly appear most strongly to be a benefit only to the defendant. The petition also alleges that the acknowledgment of said quitclaim deed was procured fraudulently.
We do not think that said petition states facts sufficient to constitute a cause of action. The deed which the petition asks to have set aside appears upon its face to have been regularly executed and acknowledged. It'is found in the possession of the grantee, and has been duly recorded. All this appears from the petition and exhibits; and this at least is prima facie evidence that the deed was duly executed and delivered. The petition nowhere alleges that it was not duly executed or delivered. (Perhaps a denial contained in a petition, of the execution of a written instrument set forth in the petition, need not be verified by affidavit, as is required to be done of a denial contained in a subsequent pleading putting in issue an allegation of the execution of a written instrument.) But the petition not only fails to deny that the deed was duly executed, but it even admits and alleges that it was so done. With "reference to the execution the petition uses the word “make,” twice; the word “executed,” once; the word “executing,” three times. The petition does not pretend that there was any fraud in the execution of said deed. It states however that there was fraud in the acknowledgment of the execution of the same, and in recording it. But it does not state in what the fraud consists. No facts showing fraud are stated. But even if there was fraud in the acknowledgment of the execution of the deed, or in recording the same, still that would not invalidate the deed. Even if the execution of the deed had never been acknowledged before any officer, and even if the deed had never been recorded, it would still be valid, if it had been in fact executed. There is no breach of said verbal contract, nor of any contract, nor any default on the part of the defendant, ■ alleged in said petition, except that it is therein alleged that the defendant did not pay said plaintiffs, each one dollar, and did not procure a quitclaim deed from all the occupants of said town-site. These two things, which it is claimed should .have been done, it will be remembered are what the plaintiffs alleged in their petition constituted the consideration for their executing said quitclaim deed. As to the consideration: We suppose that in the absence of fraud the consideration expressed in the deed cannot be impeached, contradicted, or varied, for the purpose of invalidating the deed. The consideration expressed in the deed we suppose may be contradicted or varied by evidence aliumde, where fraud is alleged, or where the grantor sues for the consideration, or where the grantee sues for a breach of some covenant contained in the deed. But wé do not think that such a thing can ever be done in the absence of fraud merely for the purpose of setting aside the deed. The consideration expressed in the present deed ‘was one dollar, and the plaintiffs each in the deed acknowledged the receipt of the same. And this is conclusive in a case of this kind. The evidence offered to be introduced by the plaintiffs, and excluded by the court, was evidence tending to show that the deed was not fully executed, and a want or failure of consideration. That is, the plaintiffs desired to show that the deed was not to be considered a deed until all the occupants of said town-site had executed quitclaim deeds to the defendant, and until the defendant had paid each grantor one dollar, and that none of the conditions had been fulfilled. We do not think that such evidence was admissible under the state of the pleadings. It would all tend to contradict either the plaintiffs’ petition, or their said deed, and without any sufficient allegations of either fraud or mistake. We might further say, although we think under the pleadings the question is not in this case, that a deed apparently fully executed and acknowledged and delivered to the grantee, to become an absolute deed upon some condition, is not an escrow, but is immediately a deed absolute. (McKean v. Massey, 6 Kas., 122.)
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This action was brought by Snodgrass against the Ottawa Furniture and Wood-Work Company, a corporation doing business at Ottawa. Snodgrass was a stockholder in said company. The object of the action was to have the business affairs of the company closed up, and the corporation dissolved. What the entire proceedings were in the court below, we cannot tell; for the record brought to this court does not purport to contain all the proceedings, and we know from the record itself that it does not contain them all. We would presume however that among the proceedings a receiver was appointed who took charge of the affairs of the company for a time; that afterward all the questions involved in the case were settled by all the parties interested therein by a written stipulation filed in the case; that in pursuance of this settlement and stipulation the court afterward discharged the receiver, and rendered judgment merely for costs in favor of the plaintiff. • But the most of this we infer merely from some recitals in a journal entry of the proceedings of the court, for neither the appointment of the receiver, nor the report of his proceedings, nor said stipulation, is contained in the record brought to this court. Both the plaintiff and defendant seem to be satisfied with the judgment rendered in this case., but other parties, to-wit, W. W. Roller, John Roller, Albert Gottschalb, and C. M. Ott, complain, and these parties bring the case to this court. They have not however made the Ottawa Furniture and WoodWork Company a party in this court. Possibly said company would not like to have the judgment below reversed, and have the case remanded for further proceedings. (Furguson v. Smith, 10 Kas., 394.) Said receiver was discharged on March 29th, 1873. At that time, according to said journal entry, said stipulation was on file in the case. The defendant in error says in his brief that said stipulation was a full settlement of all the matters in controversy in this case, and 'that it was signed by all the parties interested, including these plaintiffs in error; but whether this is so or not, we cannot tell from the record. On April 3d 1873, five days after said stipulation is known to have been on file in the case, the plaintiffs in error filed a petition asking to be made parties defendant in the action, alleging that they were stockholders in said corporation, that they were interested in the controversy, and alleging collusion and fraud on the part of the plaintiff and defendant in seeking to dissolve the corporation, and various other things. On April 7th the court below denied said petition, and then on the same day rendered said judgment for costs in favor of the plaintiff Snodgrass and against the said Furniture and Wood -Work Company. What the costs were, what the amount was, or for what items they might be charged, we cannot tell, as the record does not show, and they have never been taxed.
The first and about the only ruling of the court below complained of is the denying of said petition of plaintiffs in error to be made parties to the action. Now what evidence was introduced, or what other matters were taken into consideration by the court below upon the hearing of said petition, we are not advised. Possibly the evidence introduced on the hearing may have shown that the matters alleged in said petition were not true. This petition was an application on the part of the plaintiffs in error to be made parties defendant, so that they might contest the plaintiffs’ cause of action upon its merits. But the merits of the action, we must presume from the record had already been settled, and no judgment upon the merits was rendered in favor of the plaintiff below, and no judgment upon the merits was rendered which could in the least injure any one of the plaintiffs in error. If the plaintiffs in error had been allowed to contest the action they could not have got any more favorable judgment for the said company, or for their own interests therein, than was actually rendered by the court. They simply did not want the corporation dissolved, and it was not dissolved. It is possible that they might have made some change in regard to the costs, but what change if any we cannot tell from the record presented to us. If we had a full record of all the proceedings in the court below it is possible that we might find that the plaintiffs in error had by said stipulation estopped themselves from raising any question, either upon the merits of the action, or as to costs. But in whatever light we may view the record, the plaintiffs have lost nothing directly, and but very little if anything indirectly, by failing to be made parties to the action. As we have before said, the only change that they could possibly have made in the judgment by being parties and contesting the case would have been as to costs. And as these costs are imposed by the judgment on the Furniture and Wood- Work Company, and not on the plaintiffs, the only injury to them is an indirect injury by tending to depreciate the value of their stock. We should think that the court would in cases of this kind have some discretion in allowing or disallowing new parties to come in for the purpose of contesting some question in the case, and if so it would seem almost like an abuse of discretion for a court to allow a new party, who had no direct, but only an indirect and remote interest in the matters in controversy, to come in and contest the entire case, merely to save a very small amount of costs (how small we cannot tell) from being imposed upon a corporation of which he was a member, when the corporation itself had ample notice of the suit, and was not unwilling that the costs should be so taxed. The court below clearly did not commit any abuse of discretion. While courts of equity will protect the rights of individuals, yet something must always be left to the discretion of such courts; and while courts of equity will often protect individual stockholders of a corporation from the wrongful or unjust acts of the directors of such corporation, yet Some discretion must always be left for the directors to exercise. They must have some power to determine what is for the best interests of the corporation. And courts should not in doubtful cases say that they have mistaken the best interests of the corporation, and therefore reverse their action.
We do not think that it is necessary in this case to decide whether the petition of the plaintiff below stated a good cause of action or not; or whether a corporation can answer only under seal or not; or whether the petition of the plaintiffs in error in the court below was sufficient or not, prima fade, to make them parties defendant; for neither the plaintiff nor defendant in the action are now complaining, and the only parties complaining are parties who complain merely because some indefinite amount of costs was taxed against a corporation of which they were members. While we do not think that the court below under the facts of this case (as we would presume them to be from the record) committed any error, yet we feel clear that, view the record as we may, no such error was committed as will require or even authorize a reversal of the judgment below.
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The opinion of the court was delivered by
Valentine, J.:
The only question presented by the record in this case is as follows: Where roaming cattle belonging to one person break through a lawful fence, enter upon the land of another, there commit injuries, can the owner of the land recover from the owner of the cattle for such injuries, notwithstanding such land may not have been entirely surrounded by a lawful fence? This question must be answered in the affirmative.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The facts in this case are as follows: Hazlett commenced an attachment suit against McCoy in the district court of Dickinson county, and at the April Term 1870 recovered a judgment for $649.29. On the same day McCoy paid $500 in cash, and gave his note for the balance payable on or before the 1st of August next ensuing. In consideration of this Hazlett released his attachment-lien, and credited the $500 on the judgment. McCoy claims that he paid and that Hazlett received the cash and note in full satisfaction of the judgment, and that the latter agreed to cancel and discharge it of record. This Hazlett denies. Afterward Hazlett brought suit on the note before a justice of the peace, and was beaten, McCoy testifying in such action that the judgment was still in force to the amount of the note, and that the plaintiff had levied on property to satisfy it. Hazlett took no appeal from this judgment of the justice. The note itself was filed with the clerk of the district court, never having' been paid by McCoy. This action is brought by McCoy to restrain Hazlett from proceedings to collect the $149.29 as balance due upon the original judgment. A temporary restraining order was made, but upon final hearing the district' court found in favor of Hazlett, and discharged the order. To reverse this ruling this proceeding in error is brought. It seems to us that there is but a single question in the case, and that one of fact, and one upon which there was contradictory testimony. Was it agreed between McCoy and Hazlett that the $500 and the note should be in full payment and satisfaction of the judgment? If it was, the restraining order should have been made perpetual; if not, it was properly discharged. The mere giving and receiving of a note of the. debtor does not operate as a discharge of a pre-existing judgment. This will not be questioned. Upon the- trial Hazlett testified positively that he never agreed to take this note in satisfaction. McCoy testified to the contrary'. McCoy’s testimony before the justice tended to support Hazlett’s testimony here. The fact of Hazlett’s bringing suit on the note, tended to support McCoy’s evidence. • There was no other testimony bearing upon this question. The district court having upon this evidence found in favor of Hazlett, and it being ample to support such finding, well-settled rules of procedure in this court forbid us to interfere with the decision.
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 an application for a writ of mandamus to compel Thomas A. Osborn, governor of the state of Kansas, to issue a patent to the relator for some land claimed by her under a purchase made under an act of the legislature entitled “An act providing for the sale of public lands to aid in the construction of certain railroads,” approved February 23d, 1866. (Laws of 1866, p. 142.) The governor refuses to issue the patent on the ground that the relator has not presented to him “a receipt of the state treasurer for full payment” for the land, as provided by § 3 of said act. It not only appears from the proofs presented to us that the relator has not presented such receipt to the governor, but it also appears that no such receipt has ever been issued; nor has full payment even ever been made to the treasurer for the land. It is alleged however by the relator, that full payment has been made to the state agent, and that it is the agent who has failed to make the proper payment to the treasurer. Under these facts can a writ of mandamus be issued against the governor? We think not. There is no law that requires him to issue a patent in a case like the one at bar, except upon presentation to him of said receipt. That receipt has not been presented. Then what official duty has he neglected or refused to perform? None has been pointed out to us, and we know of none. We suppose it is clear beyond all doubt that the writ of mandamus can be issued against a public officer only in a case where such officer has neglected or refused to perform some official duty. No such neglect or refusal is charged against the governor in this case. The writ of mandamus prayed for w-ill therefore be refused.
.All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant in error sued one James Faulkner and plaintiff in error upon a promissory note. , Faulkner was the maker, and plaintiff in error the payee and indorser. The indorsement was in blank; and the error complained of is in the refusal of the court to permit the plaintiff in error to show by parol testimony that he was liable simply as surety, and not as indorser on the note. As the record comes before us we think no error is apparent. It was proved that demand and notice had been legally made and given, so that Horville’s liability as indorser was fixed beyond dispute. Nor was there at any time any effort to question the fact of due demand and notice. But during the introduction of the evidence for the defendant, the counsel for plaintiff and Horville discussed before the court the question whether Horville could introduce parol testimony “to show that his liability on the note sued on was that of surety merely,” and the court decided “that the rule of law which did not permit parol evidence to vary or contradict the terms of written instruments admitted of no exceptions except upon equitable grounds, as in case of fraud, accident, mistake, and the like, and that in this case defendant Horville, not having brought himself within any of these, equitable exceptions could not introduce evidence to vary or contradict the terms of the contract sued on.” It would be a sufficient disposition of this matter to say, that it appears by the record to have been a discussion upon no actual present question before the court, and a decision followed by no exception. But waiving these suggestions, and considering the ruling as properly before us, we think as the case stands it must be sustained. We confess to a little embarrassment in determining in what manner to construe the claim of counsel. It cannot*' of course be that he claims that Horville could show that he was as surety liable on the note without any proof of demand and notice, the ordinary steps to charge an indorser, for that would be a claim it were idle to make as the record states that due proofs of these matters had already been made. And besides, it would be a claim against Horville’s interest, a waiver of any objection that could be made to the sufficiency of the proof already made upon these matters, as well as of any counter-testimony he might have thereon. It would be a concession of one of the points otherwise necessary to be proved to establish his liability. On the other hand, if the claim was simply that after the liability of Horville was fixed by proof of demand and notice, then he could show that as between himself and Faulkner the latter was the principal debtoi’, and himself only the surety, the law implied that to be the relation of the parties, and no testimony was necessary to change this implied relation. While it may not be correct to say that the contract of indorsement is merely one of surety-ship, for “one who is technically a surety on promissory paper is generally an original promisor, and primarily liable, which an indorser never is,” yet the relation of indebtedness of 'the maker and indorser of a note to the holder is prima fade that of principal and surety. Whatever releases the maker discharges the indorser. Any new contract with the maker upon valid consideration, which changes the nature and extent of his liability, releases the indorser. In Byles on Bills, marginal page 190, it is said that “the acceptor is the principal debtor, and all the other parties are sureties for him, liable only on his default. But though the other parties are in respect to the acceptor sureties only, they are not as between themselves merely co-sureties, but each prior party is a principal in respect of each subsequent party.” And again, on the succeeding page, “As the acceptor is at law in all cases the principal debtor on a bill, so the maker is at law the principal debtor on a note, though it be given by the maker to the payee without consideration, and the holder take it with notice of absence of consideration. The indorsers of a note severally stand as principals or sureties in the same situation as the indorsers of a bill.” So that the relation which by implication of law from the note itself, Horville sustained to this indebtedness, was precisely that which he claimed the right to show to the court by parol testimony. The ruling, of the court therefore, whether correct or not, was in his favor, and he has no grounds of complaint therefor in this court.
After this ruling of the court, Horville asked leave to amend his answer so as to allege that he signed his name on the back of the note under the impression that the note was payable to the order of the plaintiff, and not as was the fact to the order of himself. No showing was made upon this application, and we cannot see that the court abused its discretion in denying it. A good deal of testimony was admitted as to the circumstances attending the execution of this note, and as to its consideration. Upon that testimony, and independent of the instrument itself, it may be doubtful whether either party could properly be said to be the security of the other. This note was given in renewal of a prior note, and there appear to have been several, renewals. The note first given was by Gabriel Dressback as maker, and Horville as security. The consideration of this was a loan from plaintiff to Dressback. The sole consideration for each succeeding note was the preceding. Intermediate the first and the last, Dressback died, and Faulkner was appointed his executor. Faulkner signed this note, describing himself as executor, and evidently supposing he was simply binding the estate, but really rendering himself personally liable. Was either Faulkner or Horville then in fact the surety of the other, or were they both simply co-sureties for an unnamed principal, the estate of Gabriel Dressback ? We forbear pursuing this inquiry further, for Faulkner is interested in the question, and should properly ,be- brought before the court before it is determined.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action to foreclose a mortgage given by George J. Clark and wife to the defendant in error. John J. Marston, a subsequent mortgagee, was also made a party defendant. The pleadings were completed by answers and reply. In the answer of, George J. Clark the defense of usury was set up. After this, and on September 19th 1873, there was filed among the papers in said case an agreement upon which this case turned entirely in the court below. It was as follows, after title of cause:
“It is agreed and stipulated by and between said parties, that said case shall be continued until the next term. In consideration of said continuance the defendant George J. Clark agrees to withdraw his answer from the files, and file a general denial only, and not to place or ask to be placed on file any further answer; and also agrees that in case of sale of the property described herein, that the plaintiff shall have the right to remain in said premises until the 1st of March 1874, by paying $20 per month after such sale.”
This stipulation was signed, “Wm. H. Spencer, George J. Clark, Antoinette E. Clark.” Marston’s attorney indorsed the following upon said agreement: “ I agree that this cause shall be continued till December Term 1873,” which was signed, “C. W. Blair, Attorney for Defendant Marston.” The ease was thereupon continued to the December Term 1873, and the terms of the stipulation complied with as to withdrawing answer and filing only a general denial. On December 17th 1873, the defendants George' J. and Antoinette E. Clark, filed a joint and Several motion for leave to file separate, amended and supplemental answers, setting up usury and a tender to the plaintiff of the amount due after deducting the usurious payments. The tender had been made December 16th, and since the filing of the then existing answer.- The motion was overruled, and the filing of supplemental answer refused by the court. On the next day, December 18th, defendant Marston filed a motion for leave to file a similar supplemental answer, which was also denied. On December *29th, Geo. J. Clark filed another motion for leave to file supplemental answer, which was also denied, the answer setting up the tender only. Also, on said December 29th, defendants Clark and Clark filed a motion to strike from the files the agreement above quoted, which was also overruled.
The principal question in this case is on the refusal of the court to permit the filing of any new pleadings. It is insisted that the stipulation is void because of illegality of consideration, viz., an abandonment of a plea of usury, and an agreement not to make Such plea thereafter, and that therefore the case is to be treated as though no such stipulation was in it; also, that upon the happening of any new matter, amounting to a substantial defense, since the filing of the existing answer, it is a right of the defendant to be allowed to file a supplemental answer setting up such new matter, the refusal, of which right is sufficient ground for reversal of the judgment. And finally, if it be not a right of defendant to be allowed to file a supplemental answer in all cases of the happening of new matter, it was under the circumstances of this case an abuse of discretion for the court to refuse to allow one to be filed, such as should compel a reversal. It may be remarked that the only object in the various answers and motions offered and made was to renew the once-abandoned plea of usury, for though the tender was a subsequent fact, yet the tender without the usury amounted to nothing. The note was a note of $3,500/ The amount of the alleged tender was $2,985, so that if the plea of the tender had been allowed to be filed, and the tender proved as alleged, it would have constituted no defense except in conjunction with a plea of payment or one of usury. The subsequent matter was therefore of itself immaterial. And on the other hand if the plea of usury had been permitted, and sustained by the evidence, the amount of the judgment would have been no greater than the amount due at the time of the tender, for the usury law in force at the time of the contract forfeited all interest. . The only difference would have been in the matter of a few dollars costs.
The agreement to withdraw the plea of usury cannot be sustained. It is no better than an agreement not to plead it; and surely, if such an agreement could be sus_ J J 0 tamed, a usurious loan would always be accompanied'by an agreement not to plead the usury — a very simple if .not effectual way of evading the law. In short, this case seems to resolve itself into this: If after pleadings have once been filed, the district court refuses leave to file an amended answer setting up the plea of usury, under what circumstances will this court -hold such refusal error, and reverse the judgment? Neither party has the right, after pleadings have once been filed, issue joined, and the case ready for trial, to change the issues by filing either an amended or supplemental pleading, This can oe done only by leave of the court; and the granting of leave is within' the discretion of the court. Error will lie only when an abuse of that discretion is shown. This, so far as amendments are concerned, is familiar law: Taylor v. Clendening, 4 Kas., 524; Davis v. Wilson, 11 Kas., 74; Douglas v. Rinehart, 5 Kas., 392; Spratley v. Ins. Co., 5 Kas., 155. It is also true of supplemental pleadings: Medbury v. Swan, 46 N. Y., 200; Voorhies’ Code, 3d ed., p. 357, § 177, and cases cited. It may be that, as supplemental pleadings embrace only subsequent facts, there can be fewer reasons for refusing to permit them to be filed; but still, like amended pleadings, they are within the control and subject to the discretion of the court.
Was there any abuse of discretion on the part of the district court in this case? Leave was asked to file amended and supplemental answers. What grounds therefor were presented? It will ordinarily be'expected in such cases, where additional defenses are sought to be interposed, that some reason will be shown for not presenting them before — either that the party was ignorant of the facts, or that such facts constituted a legal defense, or that he was in some way prevented from setting them up. He is asking to change the issues, and some reason other than his own pleasure or convenience should be given. If this be the general rule, a'fortiori, where a party with full knowledge of a defense intentionally omits to plead it, or having once pleaded it intentionally withdraws it, he ought not thereafter to be permitted to change the issues by pleading it. Especially is this true when he reaps some benefit from such omission or withdrawal, and more especially when such omission or withdrawal not only inures to his benefit, but also works injury to his adversary, and is the result of an express and separate agreement therefor with such adversary. This covers the case of the principal debtor. He knew of the defense of usury, he plead it and then intentionally withdrew the plea. By such withdrawal he obtained the benefit of a delay in judicial proceedings to compel payment by him of a debt, and to the same extent postponed any collection thereof by his creditor; and he made this withdrawal in consequence of an express and separate agreement therefor with such creditor. It is unnecessary to affirm the validity of the agreement, or assent that it was one which it was the right of the creditor and the duty of the court to enforce. It is enough that such an agreement wás made, and that its consequent benefits and injuries were received by both debtor and creditor. True, the injury resulting from a loss of this defense may have more than counterbalanced the benefits of delay, though no positive assertion can be made on this point without a fuller knowledge of the circumstances and conditions of the respective parties; but he elected to take the latter, and cannot complain if he is compelled to abide by his choice.
Again, the plea itself which he seeks to make has no especial claims upon the favor of the court. Many very respectable courts have declared it an odious and unconscionable plea, one which though tolerated ought always to be discountenanced. On granting to defendants leave to amend their answers it has often been only upon their stipulating not to set it up: Fulton Bank v. Beach, 1 Paige, 429; Utica Ins. Co. v. Scott, 6 Cowen, 606; Lovett v. Cowan, 6 Hill, 223. And while the better opinion is against such discrimination and denunciation, (Catlin v. Gunter, 11 N. Y., 368,) yet it is undoubtedly true that it has no especial claims upon the indulgence and favor of the court. All applications concerning it should be disposed of upon the same principles and in the same manner as those concerning other defenses. So far therefore from seeing any abuse of discretion in this ruling, as to the principal debtor, it seems to us to have been just what it ought to have been.
So far as concerns Mrs. Clark, and the subsequent mortgagee, the same considerations do not apply. Neither of them had once interposed and then withdrawn this defense. Mrs. Clark also states, in the answer she tendered, which was verified by affidavit, that she did not know of the usury until after the stipulation, and just before the tender, and that the mortgaged premises were the homestead of the husband and herself. Counsel for defendant m error insists Very strenuously that this plea oí usury is a strictly personal one, and that therefore it was entirely unavailable to either Mrs. Clark, or the subsequent mortgagee. If this were correct, there was of course no error in refusing to permit them to plead it. It is undoubtedly true, as a general proposition, that the plea is a personal one, but we are inclined to doubt the correctness of the claim of counsel, at least so far as Mrs. Clark is concerned. See upon her right to avail herself of the plea: Lyon v. Welsh, 20 Iowa, 578; and upon the general proposition: Shufelt v. Shufelt, 9 Paige, 137; Green v. Morse, 4 Barb., 332; Reading v. Weston, 7 Conn., 413; LeWolf v. Johnson, 10 Wheat., 367; Sands v. Church, 6 N. Y., 347. Without however definitely deciding these questions we think the ruling of the court must be sustained for these reasons: Though Mrs. Clark avers ignorance of the usury, she is not wholly without laches. She signed the stipulation to withdraw the answer of her husband. This was notice to her that some defense interposed by her husband was to be withdrawn, and fairly put her upon inquiry to ascertain what it was before consenting to its withdrawal. The circumstances attending the signing of the stipulation are nowhere disclosed in the record, and no excuse given for her signing it, and no reason given for her ignorance of the usury. Did her husband misrepresent the facts to her, or was she so indifferent to the preservation of her homestead as to make no inquiry ? In the absence of a full showing upon these matters, and in a case where the court properly refused to permit the principal debtor to interpose a once-abandoned plea of usury, we cannot say that the court abused its discretion in also refusing to permit her to interpose this defense. The subsequent mortgagee cannot urge even these considerations. He had no homestead claim, and he avers no ignorance. He seeks to amend his answer, but he gives no reason for not alleging the usury before. He places great stress upon the tender as a subsequent fact, but the tender alone, as we have seen, could avail none of the defendants anything.
It is hardly necessary, since the case of Stevens v. Thompson, 5 Kas., 305, to say that under a general denial to a petition which alleges the making and delivery of a note, of which it gives a copy, that no part has been paid, and that the whole amount is still due, proof of payment is inadmissible.
Upon the whole case we see no error, and the judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant was convicted in the district court of Doniphan county under an information charging an assault with intent to kill. There was no dispute but that Howard shot the prosecuting witness, but the claim was, that such shooting was in self-defense. Upon this question, at the instance of the state, the court gave the following instruction:
“The shooting by the prisoner at Collier would be justified, under our laws, only in case it was committed by the prisoner .when there was reasonable ground to apprehend a design to do him great bodily harm, and that there was imminent danger of such design being accomplished; and the jury are the judges, and it is for the jury to say whether there were any reasonable grounds for such apprehension, and whether there was, at the moment that the shot was fired, imminent danger that some great bodily harm would have been done to prisoner; and if the jury find that the.defendant was in no such imminent danger they will convict.”
In the latter portion of this instruction the court erred. The jury are in substance told, that the question is, as to the actual existence, and not as to the reasonable appi'ehension of danger — that the reasonable apprehension refers to the design to inj ure, and not to the imminence of the danger. Under such an instruction, no matter how threatening the conduct of the party shot, no matter though it be so great as to create-in any mind an irresistible conviction of imminent peril, yet unless the imminent peril actually exists, the shooting is not in self-defense. Thus, if a party approaches with a drawn pistol and threatens to kill on the spot, it is not self-defense to kill such an assailant unless his pistol be in fact loaded, and he thus actually able to carry out his threat. In other words, if the pistol of the assailant is loaded, it is self-defense; if not, it is murder. The law is not thus harsh. All that it exacts is, that there shall be a reasonable apprehension of imminent danger, and of the reasonableness of this apprehension the jury are to be the judges. A party assailed is justified in acting upon the facts as they appear to him, and is not judged by the facts as they are. It is not to be wondered at that this error occurred, for such at first view seems to be the meaning of the statute, the apparent import of the language used. But this language is not new in our statute. It will be found in the statutes of other states, and had received a settled construction elsewhere before it was introduced here. 2 Wharton’s Crim. Law, §§ 1026 and 1027, and notes; Shorter v. The People, 2 Comstock, 197. Indeed, when the ■court'gave the instruction asked by defendant, and its attention was probably not drawn to the statute, it stated the law correctly, and in accordance with the well-settled current of late authority. Yet as we cannot say which instruction influenced the jury, and as it may be that the verdict rested on the erroneous one, we are compelled to reverse the judgment, and remand the case for a new trial. Horne v. The State, 1 Kas., 73.
All the Justices concurring. | [
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Allen, J.
This action was brought by Frank S. Thomas against H. P. Throop, The Boston Safe Deposit and Trust Company, H. E. Ball, and others, to recover for premiums on policies of insurance, on the Throop Hotel, in Topeka, furnished by Thomas, as agent for divers insurance companies. Trial was had to a jury, which brought in a verdict in favor of the plaintiff against Throop and the Deposit and Trust Company for $2032.67, on which judgment was entered. The Deposit and Trust Company brings the case here.
It appears from the evidence that Throop negotiated a loan through Ball, for $65,000, evidenced by two promissory notes, one for $30,000, and the other for $35,000, secured by a trust deed made to Ball as trustee. The trust deed provided :
“Said party of the first part hereby agrees to procure and maintain policies of insurance on the build-' ings erected, and to be erected upon the said premises, in some responsible insurance company to the satisfaction of said party of the second part, or his successors in trust to the amount of $64,000, loss, if any, payable to the said party of the second part, or his successors in trust, and it is further agreed that every such policy of insurance shall be held by the said party of the secozzd part, or his successors in trust, as collateral or additiozzal security for the paymezzt of said indebtedness, and they slzall have the right to collect and receive all moneys which may at any time become payable and receivable thereon, and apply the same wheiz received to the payment of said zzote, together with the cost and expenses incui-red in collecting said insurance, or may elect to have buildings repaired, or zzew buildings erected on the aforesaid premises.”
The mortgagor also covenanted to pay the insuz*ance premiums, and it was provided that,-if such payments were not znade, the party of the second part, or the party of the third part, might pay such premiums, and that the amount paid should be a lien on the premises, the same as the principal debt, and bear interest at the rate of twelve per cent.; and that the party of the third part might at his election proceed at once on such default to foreclose the deed of trust. The trust deed was executed on the second of April, 1888. Thomas furnished the insurance called for by the terms of the trust deed. To all of the policies there was attached what is termed a mortgage clause, providing:
“Loss, if any, payable to Herbert E. Ball, trustee, or to his successor in trust, as interest may appear as hereinafter provided. It being hereby understood and agreed that this insurance as to the interest of the beneficiary only therein shall not be invalidated by any act or neglect of the grantor, or owner of the property insured, nor by vacancy of the premises, nor by the occupation of the premises for purposes more hazardous than are permitted by the terms of this policy; provided, that in case the grantor, or owner, neglects or refuses to pay any premium due under this policy, then on demand the beneficiary shall pay the same; provided, also, that the beneficiary shall notify this company of any change of ownership, vacancy, or increase of hazard which shall come to his or their knowledge, and shall have permission for such change of ownership, vacancy or increase of hazard which shall come to his or their knowledge, duly indorsed on this policy.”
Two principal questions are discussed. 1st, Whether the mortgage clause attached to the policies amounted to a contract, on the part of the beneficiaries under the trust deed, to pay the premiums in case the mortgagor should fail to pay them, or merely to a condition avoiding the policy; and, 2d, Whether Thomas stands in such relation to the insurance contract that he is entitled to sue on it.
The first question is not difficult. While the word “provided” ordinarily indicates tliat a condition follows, thei’e is no magic in the term, but the clause is to be construed from the words employed and from the purpose of the parties gathered from the whole instrument. These mortgage n clauses were furnished to Thomas by Ball to be attached to the policies. The first clause provides for the payment to Ball, as trustee. The second clause provides that the policies shall not be invalidated by any act or neglect of the grantor or owner of the property insured. This included neglect to pay premiums on insurance policies, as well as other neglects, which without such a clause in the policy would have avoided it. By the terms of the deed of trust Throop covenanted to keep the property insured and to pay the premiums ; but' provision was also made that in case of his failure to do so the trustee or beneficiaries might pay the premiums and tack the amount so paid to the trust deed. In consideration of the provisions against forfeiture through the neglect of the mortgagor, the creditor agreed that, if the mortgagor, or owner, failed to pay the premiums, he would pay them on demand. The value of the property mortgaged was mostly in the hotel building covered by the insurance. In case of its destruction by fire the bulk of the security would be gone, unless covered by valid insurance. For the safety of the holders of the notes it was of the utmost importance that the insurance should be kept in force. The provisions quoted in the deed of trust and the insurance policies were to that end, and rendered the beneficiaries liable for the unpaid premiums. St. Paul Fire Ins. Co. v. Upton, 2 N. D. 229.
The second question is one of more difficulty. It appears that all of the insurance on this property was furnished by Thomas, but that it was in many policies. Some of them were issued by companies-which he represented as agent; others were obtained by him from other agents. For a time Throop paid the pre miums. The first item for which the plaintiff claimed judgment was a premium of $32.50, on May 7, 1890, on a $2500 policy. There is some little discrepancy in the testimony of Thomas and Ball as to the course of their dealings, but according to that most favorable to the plaintiff, which has been accepted by the jury, it appears that at the time the loan was negotiated there was an understanding, between Throop, Ball and Thomas, with reference to the insurance, that Throop was to take out policies to the amount provided for in the trust deed and that Thomas was to furnish the policies. The renewals were issued by Thomas and delivered to Ball. Ball fui’nished the printed mortgage clauses. He was the agent of the plaintiff in error, and when he received policies of insurance he notified the beneficiaries that he held them for their benefit. Whenever policies expired, if renewals were not sent to him by Thomas, he or some of the clerks in his office called on Thomas for them. The first demand on Ball for the payment of premiums was made either in the latter part of 1891 or the fore part of 1892. After this demand, other policies were furnished; and before this action was commenced a demand was made on Ball, as the agent of the holders of the notes, for the full amount, which he refused to pay. Thomas, in accordance with the customs prevailing in his business, rendered to the companies he represented as agent, monthly accounts of premiums on policies issued, and advanced from time to time all the premiums due to the companies for which he acted as agent. He paid the premiums on policies issued by other agents, for companies they represented, at the time he received the policies from them.
It is not contended that Thomas acted as an insurance broker, who might sue in his own name for poli •cies furnished, but it is contended on his behalf that there was such an agreement or understanding and course of business between himself and Ball that he is entitled to recover in his own name and on his own account. The principal contention, however, is as to whether Thomas is entitled to be subrogated to the rights of the insurance companies under mortgage clauses attached to the policies. We hold that these clauses bind the beneficiaries to pay the premiums in case of the failure of Throop to do so. The companies,, however, cannot maintain any action, because they have already received their money. It does not seem to be seriously contended that there was any legal obstacle in Thomas’ way in obtaining judgment against Throop for the premiums. He makes no complaint in this court of the judgment entered against him. If an action may be maintained by Thomas against Throop, the principal debtor, and if the beneficiary is liable for the premium in case of Throop’s default, why may not Thomas also maintain his action against the beneficiary ? If he is subrogated to the rights of the various companies as against the principal, why is he not also as against the surety? Subrogation is a creature of equity, invented to prevent a failure of justice. It has been said :
“ Subrogation is the substitution of another person in.place of a creditor, so that the person substituted will succeed to all the rights of the creditor having reference to the debt due him. It is independent of any merely contractual relations between the parties to be affected by it, and is broad enough to include every instance in which one party is required to pay a debt for which another is primarily answerable, and which, in equity and good conscience, ought to be discharged by the latter.” Johnson v. Barrett, 117 Ind. 551; 10 Am. St. Rep. 83.
“ Subrogation is purely an equitable result, and de pends like other controversies in equity, on facts, to develop) its necessity in order that justice may be done. Privity of contract is not necessary to its support. It may and does exist on principles of mere equity and benevolence.” Mosier’s Appeal, 56 Pa. St. 76; 93 Am. Dec. 783.
It is often said that this equitable aid may never be invoked by a mere volunteer, or intermeddler, who seeks to become a creditor without right or necessity for doing so. The contention on behalf of the plaintiff in error is that this is the attitude of Thomas ; that he voluntarily paid these premiums ; that credit was extended to Throop alone, aiid that he may only look to Throop for payment. Under the facts disclosed in this case it would certainly be a great misuse of terms to call Thomas an intermeddler. He was really the visible party with whom both Throop and Ball dealt for the insurance. He provided a large number of policies. The largest single policy charged for in his account was for five thousand dollars. The companies issuing the policies looked to Thomas only for the premiums. Ball called on him, and him alone, for the renewals. He was interested both in controlling the line of insurance on the hotel for the purpose of obtaining his commissions, and in maintaining his standing with the companies he represented. In order to accomplish the first, he had to keep the full amount of policies in force; and for the latter, it was necessary that the premiums be promptly remitted. He was in no sense a volunteer or intermeddler. The doctrine of subrogation, being entirely independent of any contractual relation, may properly be invoked in a case like this ; for certainly in equity and good conscience the right of Thomas to .recover, from the holders of the notes secured by this trust deed, the premiums on the policies of insurance of which they have had the full benefit, is as clear and as apparent as that of the companies would be if they had not received their pay and were prosecuting separate actions to recover it. The defendants have been protected from loss of their security by the policies paid for with Thomas’ money and received by them at his hands. In equity and good conscience he should be permitted to enforce the liability imposed by the mortgage clauses. This was the law administered in the trial court, and meets with our approval.
There is some criticism of the findings of the jury, but we perceive nothing in them inconsistent with each other, or with the general verdict in the case. The demand on Ball was as efficient as a demand on the Deposit and Trust Company.
The judgment is affirmed. | [
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Johnston, J.
Anna Beuerman was convicted of murder in the second degree for the killing of her husband, August Beuerman, and was thereupon sentenced to confinement at hard labor for a term of ten years. The killing was admitted, but it is claimed that she was' not responsible for the act, because of insanity.
The deceased and the defendant were married more than ten years before the homicide, and had lived together on a farm with the parents of the defendant. No children were horn of the marriage, although it is claimed that the defendant was very desirious of having children. In her behalf it is said, and there was some testimony to show, that her husband was lacking in physical power, amounting to sexual disability, and that he had not informed her of his condition before marriage ; that the lack of virility and the impobency of her husband preyed upon her mind, and that by constant brooding over the situation her mind was finally unbalanced. It is further claimed that, while in this condition and irresponsible, she obtained'her father's revolver, and without any quarrel or apparent provocation shot her husband, and at once turned the revolver upon herself and discharged a bullet through her chest and near her heart; evidently intending to destroy her own life. The mental condition of the defendant at the time the shot was fired was the principal question in the case, and the one toward which the greater part of the testimony was directed.
A number of exceptions were taken to the rulings on the trial; the first of which was upon the overruling of a challenge to the competency of Pontious, who was called as a juror. Prom his examination it appeared that he had talked x x with persons who knew the facts in the case, that he had read newspaper accounts of it, and, based on the information so obtained, had formed and expressed an opinion as to the guilt of the defendant. Upon a further examination by the court, he said the persons with whom he had talked assumed to know the facts ; that the opinion which he formed and expressed was one that it would take evidence to remove. When asked as to whether it was an opinion or a mere impression, he stated that it was an opinion. He was then asked whether he could give a fair and just consideration to the testimony and render a fair and impartial verdict in the case, when he stated that he believed he could, and that he would be guided by the testimony as it was related, and also by the charge of the court.
We think Pontious was not qualified to sit as a juror, and that the court erred in overruling the challenge. The statute provides that “ it shall be a good cause of challenge to a juror that he has formed or expressed an opinion on the issue or any material fact to be tried.” Criminal Code, § 205. He insisted throughout his examination that he entertained an opinion, and not a mere impression. It was not based on newspaper account alone, or mere rumor, but he' had learned the facts from those who assumed to know them, and on these had formed and expressed an opinion in regard to the guilt of the defendant. It is true he stated that he believed that he could give the defendant a fair and impartial trial, but a person holding an opinion formed in such a way and of such a fixed and positive character does not possess the qualifications which the law requires. The State v. Miller, 29 Kan. 43; The State v. Beatty, 45 id. 492, 25 Pac. 899; The State v. Snodgrass, 52 id. 174, 34 Pac. 750; The State v. Vogan, 56 id. 61, 44 Pac. 352.
On objection by the State, the court excluded the opinions of non-professional witnesses as to the men tal capacity of the defendant. Glenda Reynolds, who was acquainted with the defendant, and with her had attended a meeting of the Kansas Freethinkers’ Association held at Forest Park, Ottawa, in August preceding the homicide, testified as to her appearance, manner and conduct at that time, as well as on. another occasion when she had been with her. The meeting continued for several days and the witness and the defendant occupied the same room at nights, and hence the witness had a fair opportunity to observe the peculiarities in the appearance, conversation and conduct of the defendant, which she related at length to the jury, and upon being asked what her judgment was as to the mental condition of the defendant, the court sustained a general objection to the testimony. The specific ground of objection to the testimony was not stated by counsel, nor was any reason for the ruling given by the court.
Although formerly a matter of dispute, it has come to be a well-settled principle that witnesses who are not experts may express their judgment as to the sane or insane'state of a person’s mind. The opinions so given must be the result of personal observation of the person whose mental condition is in question, after first stating the facts which the witnesses have observed. Baughman v. Baughman, 32 Kan. 538, 4 Pac. 1003; Carpenter v. Hatch, 64 N. H. 573; Conn. M. L. Ins. Co. v. Lathrop, 111 U. S. 612; 7 Am. & Eng. Encyc. Law, 504. It must appear, of course, that the witness has had adequate opportunities to observe the appearance and conduct of the person whose sanity is in question ; but when it appears from the facts related before the jury that the witness has a fair basis for an opinion, it must be received. It is not for the court to decide the weight or effect to be given to the opinion; but the jury, knowing the witness’s opportunity for observing the mental condition of the defendant, and the circumstances and reasons uponi.which he bases his judgment, can determine the weight to which the testimony is entitled. If his knowledge of the acts, words and conduct of the person claimed to be insane is meager, his opinion will not be as valuable nor entitled to the same consideration as that of one who has had better opportunities of knowing and who is thoroughly informed in that respect; but what weight the opinion shall receive is a question of fact for the jury.
The extent of the knowledge which a witness must possess in order to testify cannot well be defined ; but from an examination of .the record we have no doubt that the witness Reynolds had sufficient knowledge, as shown by her testimony, to entitle her to express an opinion. • During the three days that she was with the defendant at Forest Park she observed that the defendant was laboring under great mental excitement, that she acted in a peculiar way, cried a great deal, and part of the time “ she seemed to wander in her mind to some extent.” When asked to take the witness to the ladies’ lavatory, the defendant conducted her in another direction and for about half a mile 'around a race-track there was in the park ; but finally seemed to recover her mind and then took witness to the lavatory. At another time she talked of committing suicide, and she would have done so long ago if she “ was not afraid of a hell.”
We do not decide anything as to the mental condition of the defendant, but simply hold that the testimony of the witness was of such a character as entitled her to express a judgment in regard to the sanity or insanity of the defendant. The opinion of another witness, who was quite well acquainted with the de fendant and had observed conduct indicating mental disorder, -was excluded for a like reason.
Complaint is made of the rulings of the court in charging the jury, but we find nothing substantial in any of the objections to which our attention has been called.
Another objection is based on the temporary absence of the presiding judge'during the progress of the trial. It was shown on the motion for a new trial, beyond dispute, that during the argument in behalf of the defendant the judge left the bench and passed into an adjoiniug room, closing the door behind him, and that he remained there for a period of about ten minutes. During this time the judge appears to have been out of sight and hearing of the jury and counsel and where he could not hear the argument or exercise control over the proceedings in the court-room.
The absence of the judge during the progress of a trial cannot be sanctioned. The argument of a cause is an important part of the trial, and it is essential that it should be conducted in the presence and hearing of the judge who must ultimately approve the proceedings and render judgment. The hearing and conduct of the argument is almost, if not quite, as important as the hearing and reception of testimony ; and the judge should be present to see that counsel in their arguments do not go beyond the bounds of legitimate discussion and to determine any objections that may be raised. In fact, there can be no court without a judge, and he cannot even temporarily relinquish control of the court or the conduct of the trial. It is necessary that he should hear all that transpires in the trial in order that he may intelligently review the proceedings upon the motion for a new trial. It is especially important that he should be visibly present every moment of the actual progress of a criminal trial, where the highest penalty of the law may be imposed. The defendant is entitled to be tried in a court duly constituted, and if the presiding judge abandons the trial or relinquishes control over the proceedings the accused has good cause to complain. Meredith v. The People, 84 Ill. 479; Thompson v. The People, 144 id. 378; The State v. Smith, 49 Conn. 376; Turbeville v. The State, 56 Miss. 793; Palin v. The State, 38 Neb. 862; O’Brien v. The People, 17 Col. 561, 31 Pac. 230. The fact that the court may not see or hear everything occurring in the courtroom, or that he may step into an adjoining room, but not out of hearing of the proceedings, is not necessarily prejudicial to the interests of the defendant in every case ; but the presiding judge.cannot safely absent himself from the trial or relinquish control over the proceedings during the trial. In view of the conclusion we have already reached in the present case, it is not necessary to determine whether the interests of the defendant were prejudicially affected by the absence of the trial judge, or whether such absence constitutes reversible error.
None of the other exceptions appear to be well taken, but, for the errors mentioned, the judgment of the District Court will be reversed and the cause remanded for a new trial. | [
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Doster, C: J.
The defendant in error erected a cold-storage warehouse for the keeping of perishable goods for hire. It ivas sheeted on the inside with hard pine boards. Among its first patrons were the plaintiffs in error, who very soon after the completion of the building deposited eggs in it for preservation through the summer. These articles became tainted and thereby damaged from the odor of the hard pine mentioned. Before opening the warehouse to customers, the defendant in error had by circular letter, a copy of which was sent to plaintiffs in error, represented its rooms to be “free from taint.” Action for damages was brought; the case was tried to the court; the above matters found by it, and in addition thereto the following specific findings were made :
“10. I find that the officers and agents of defendant had no experience in keeping the building or keeping cold-storage houses until they erected the cold-storage house in question and I find that the plain tiffs liad no experience in the erection of cold-storage houses or the keeping thereof, but I find that one of the plaintiffs, Thomas Parker, had many years experience in shipping, buying and selling butter and eggs and in storing and keeping the same in ordinary ice boxes.
“11. I find that James F. Redhead, President of the Company, and one of the plaintiffs, Thomas Parker, talked frequently about the erection of a cold-storage house before the defendant company began the construction of the house in question, and I find that plaintiff, Thomas Parker, frequently inspected the building when it was in the course of construction and frequently talked to Mr. Redhead about it, and he inspected the room in which the eggs in question were stored before they were placed in storage and during the time they were in storage, and while the eggs were in storage he. and his employees frequently handled and turned the cases containing them for the purpose of keeping the yolks in the center and during the said time made no complaint about the material of which the building was constructed or the way in which the eggs were keeping, but on the contrary frequently expressed himself as being highly pleased with the defendant’s cold-storage house and the manner in which it vas constructed and operated; that these observations and inspections were not contractual and were made simply because Parker expected to patronize the house and that the plaintiff and defendant at no time knew the goods were being damaged by taint.
“12. I find that the defendant and its officers and agents were negligent in using hard pine boards for the inside walls of the building ; being inexperienced, they were negligent in failing to take proper care to determine what lrinds of boards were adapted for that purpose.
“13. I find further, that plaintiffs were also negligent in failing to use proper care when they had j ample opportunity by inspecting defendant’s cold- . / storage house to ascertain the kind of material of Í which the house was constructed and what effect, if any, hard pine boards would have upon their goods which were perishable.”
From the above facts the court concluded as matter of law that the parties being equally negligent no recovery could be had.
The court's conclusion was sound. The ordinary rules of liability for negligence and contributory negligence obtain in cases of bailment, such as the one in question. A bailor who knows the unfitness of the place of storage of goods provided by his bailee, or who has equal opportunities with the bailee of knowing it, who sees and inspects the place of storage, and who, there being no latent defects in it, passes judgment upon it as a fit place for his purposes, will be deemed equally at fault with the bailee if damage result to his goods. The cases upon the precise question do not seem to be numerous, and but few of them are directly in point, but the rule stated is fairly deducible from and supported by Knowles v. A. & St. L. Rld. Co., 38 Me. 55; Brown v. Hitchcock, 28 Vt. 452-8. See, also, Hale on Bailments, 67. It will be observed that-the rule as announced is not stated as inclusive of the liability of bailees yiKm-public in character, such as common carriers. We do not have such kind of case before us.
No special importance is attached to the representation contained in the circular letter of defendant in -error that its rooms were free from taint. The law implied as much, without any affirmative representation, to those who were ignorant and without opportunity of knowing for themselves.
Other claims of error are made, but all of them involve a consideration of the evidence in the case. This cannot be given, because it is nowhere stated or in any manner shown in the record that the case-made contains all the evidence.
The judgment of the court below is affirmed. | [
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Allen, J.
What is the legal import of the instrument above copied ? This is the only question in the case. There is an averment in the petition charging that all demands mentioned in the schedule, except that of John Y. Farwell & Go., were fraudulent, fictitious, feigned and void, but, as the plaintiff claims under the instrument itself, this averment is immaterial. The plaintiff cannot at the same time attack the transfer for fraud and claim rights under it. Unless the transfer was valid, the plaintiff’s action necessarily fails. Counsel for the plaintiff in error, however, make no claim on the charge of fraud, but rest the case solely on the proposition that the instrument executed by Carson is, in legal effect, an assignment for the benefit of his creditors. It is contended that it is an absolute transfer of substantially all the debtor’s nonexempt properties to trustees, to be by them sold and the proceeds applied to the payment of the creditors named in the instrument; that the instrument is valid as a.transfer of the property to trustees, but that it is invalid for the purpose of creating preferences ; that the law intervenes and avoids the preferences, and compels a distribution of the property equally among all the creditors. The claim of the defendant in error is that the instrument evidences an absolute sale from Carson to Morgan, Evans and McCaskill, and-an assumption by them of the payment of certain debts of Carson as the consideration paid for the property.
Section 1, ch. 311 of the General Statutes of 1897 provides — “Every voluntary assignment of lands, tenements, goods, chattels, effects and credits, made by a debtor to any person in trust for his creditors, shall be for the benefit of all the creditors of the assignor, in proportion to their respective claims.” Under this statutory provision the test is whether the instrument under consideration assigned the property to any person in trust for the creditors. It has been held in some cases that instruments in the form of mortgages were, in legal effect, assignments for the benefit of creditors. Harkrader v. Leiby, 4 Ohio St. 602. In Brigham v. Jones (48 Kan. 162, 30 Pac. 113), an instrument was under consideration by the terms of which Jones & Everett, who were insolvent debtors, assigned their property to D. W. Eastman, as trustee for and on behalf of certain creditors named, with directions to take possession of the property, sell it, and apply the proceeds to the payment of the creditors named in the assignment, and return the surplus if any, to the assignors. The contention on one side was that the instrument was a mortgage ; on the other that it was a general assignment. The court concluded that it was an assignment, not a mortgage.
It is a matter of no little difficulty to furnish tests, by which it can safely and readily be determined whether a particular instrument is an assignment for the benefit of creditors, a mortgage, or a bill of sale of the property. The essential elements of an assignment are that there shall be an absolute transfer of the property of the debtor to another in trust for the payment of creditors, with either an express or implied provision that the surplus, if any, shall be returned to the -assignor. 3 Am. & Eng. Encyc. Law (2d ed.) , 8 and 9. A mortgage is a transfer of the property of the debtor as security for the payment of one or more .obligations, with a condition expressed or. implied that on payment of the debt the title reverts to the mortgagor. A sale is, of course, an absolute transfer of the property to the vendee. Much of the language used in an instrument belonging to one of these classes will also be found in the others. No set form of words is indispensable to either. All contain words importing a sale or transfer of the title to the property. It is not indispensable to the creation of a trust that the word trust be used, nor is it indispensable to a mortgage that the word mortgage be used, or that there be a formal defeasance clause. The court must determine in each in stance the real intent of the parties and give effect to it so far as it is lawful. It -may be that, in view of the more equitable results following assignments for the benefit of creditors, the court should, in all cases of doubt, incline toward that construction of a transfer of property made by an insolvent debtor which will give it effect as an assignment; but in this State it is well settled that an insolvent debtor may pay or secure one or more creditors in preference to others, by a direct application of his property to the discharge of his obligations or by mortgage for the same purpose, even though it results in leaving nothing for the others. Avery v. Eastes, 18 Kan. 505; Arn v. Hoersman, 26 id. 413; Randall v. Shaw, 28 id. 419; Tootle v. Coldwell, 30 id. 125, 1 Pac. 329; Bishop v. Jones, 28 id. 680; Bliss v. Couch, 46 id. 400, 26 Pac. 706; Clement v. Hartzell, 57 id. 482, 46 Pac. 961.
Proceeding now to examine the instrument under consideration in this case, we find that it is in terms an absolute sale and transfer, by George B. Carson to W. A. Morgan, R. B. Evans, and John McCaskill, of a stock of merchandise. In consideration of this sale, the vendees jointly and severally agree to pay off and discharge certain obligations of Carson, the amounts of which, except one, are stated. Then follows a covenant by the vendees to sell the goods as rapidly as possible, in the usual course of business, and apply the net proceeds pro rata to the extinguishment of the debts named. It is then provided .that the contract shall constitute a lien on the property to secure the payment of the debts mentioned. The contract is signed by the vendor and all the vendees. Assuming that the contract is valid in all its parts, it amounts to this : First, an absolute sale of the goods ; second, an agreement on the part of the purchasers to pay a fixed price therefor, but to pay it to creditors of the vendor; third, the creation of a lien on the property transferred, in favor of the creditors, to secure the payment of their claims. In the case of Becker v. Rardin, 107 Mo. 111, it was held —
“A bill of sale is distinguished from an assignment for the benefit of creditors in that in the former there is a fixed price and no trust, while in the latter there is a mere trust and no fixed value given to the property. The price is, however, certain if it is capable of being rendered certain.”
Applying this test, we find that this instrument has all the elements of a bill of sale. The only part of the consideration which is not expressed in plain terms is the amount due Graves, Lambert & Dickson, as attorneys’ fees, which is, of course, capable of ascertainment. In the case of Davis v. Schwartz, 155 U. S. 631, it was said —
" It is sometimes difficult to determine whether a particular instrument is a mortgage or an assignment with preferences.. The test most frequently applied is whether the conveyance is of all the property of the debtor, and is made to a trustee for the benefit of certain creditors. In such cases it is usually held to be an assignment, but if the conveyance be made directly to the creditor, it is ordinarily treated as a chattel mortgage. Jones on Chattel Mortgages, § 352a ; Burrill on Assignments, p. 11.”
'Without accepting this as a satisfactory test to be applied in all cases where the question whether an instrument is an assignment or a chattel mortgage is to be determined, it is certainly worthy of some consideration. In this case, the transfer was to three persons, one of whom was a creditor. The other creditors were not parties to the instrument, and the other parties to the instrument, so far as appears from it, were not creditors. Under an ordinary assignment, the assignee assumes no personal liability beyond that- devolving on Mm in the execution of the trust. He is not bound to answer out of his own estate for any deficiency necessary to the payment in full of the creditors. This contract is a full assumption of the debts named, and renders the vendees personally liable to the creditors for the full amount of their respective claims. It is true that in the case of Bloom v. Noggle, 4 Ohio St. 46, it was said that the character of the instrument would not be changed by the mortgagee assuming liability as a surety for the insolvent debtor. The facts of that case are so unlike the one under consideration, however, that it is not profitable to make extended comment on it. The general rule unquestionably is as above stated, and there is no language in the instrument under consideration limiting the liability of the vendees.
An assignee holding for the benefit of creditors rests under the legal obligation to account to the assignor for any surplus after.the payment of the debts. There is no agreement to do so expressed in this writing. It may be that there is seldom a surplus to be returned, and that statutory assignments are often executed without any provision of this sort. The inference, however, seems inevitable that, if the vendees were bound to pay a fixed price without reference to what they might be able to derive from a sale of the goods, they intended to retain the surplus, if there should be any. It is hardly consistent with ordinary business dealings for a purchaser to- assume all risks of loss without some chance of gain.
The imposition of a lien on the property in favor of the creditors, and the agreement of the vendees to sell and apply the proceeds, show some little appearance of an intent to create a trust. Yet a lien in favor of the creditors is not inconsistent with the other parts of the contract as above construed. .The creditors could enforce it only in accordance witli the provisions of the contract. Nor would the fact that Carson might have the right to compel the application of the-proceeds of the sales of the merchandise to the payment of these debts, necessarily change the character of the contract into an assignment. When his debts were paid by the purchasers the transaction would be at an end, so far as he is concerned, .and the lien of the creditors would be extinguished. No reason is apparent why this contract may not be given effect according to its very letter.
All that has been said with reference to the effect of this instrument must be understood as applying only to the case actually presented. If such an instrument were attacked for fraud, of course, purchasers from an insolvent debtor would .be required to act fairly and in good faith. But, in this case, the plaintiffs merely seek to have the instrument declared to be an assignment, and executed as such. We agree with the trial court in holding that the instrument under consideration is not an assignment for the benefit of creditors, and that the petition stated no cause of action.
The judgment is affirmed. | [
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Johnston, J.
On July 18, 1894, A. L. Vickers was killed by the falling of a defective bridge, which had just been constructed in Cloud County, and his widow brought this action against the County, and the persons holding the offices of County Commissioners and bridge commissioner, to recover damages sustained by reason of her husband’s death. In her petition she alleged, that the Board of County Commissioners authorized and contracted for the construction of a stone-arch bridge over a stream, upon plans prepared by William M. McCall, who had no knowledge or skill of bridge architecture, and which were not in accordance with the principles of applied mechanics ; that the Board of Commissioners and McCall were notified in advance that the plans were defective and that a stone-arch bridge built in accordance therewith could not and would not stand ; that with this knowledge the Board contracted with J. M. Hass to construct the bridge, although Hass protested that the plans Avere defective and that a structure built thereunder Avould be dangerous ; that Hass proceeded to, and did, construct the bridge under the supervision of McCall, Avho Avas appointed by the Board as bridge commissioner, and it Avas provided in the contract that payment for the structure Avas not to be made until the bridge was accepted as complete by McCall. Vickers was employed in the construction of the bridge, and it is alleged that he was an unskilled workman and had no knowledge of the laws of applied mechanics or of the science of bridge building; that he had no knoAvledge of the defective character of the plans or of the bridge built thereunder. It is further alleged that the bridge Avas built strictly in accordance with the plans, and under the direction and supervision of the bridge commissioner appointed by the Board, and that after the completion of the bridge in accordance with the plans, and after the same had been accepted by McCall, the commissioner, the arch of the bridge fell upon Vickers, who at the time was engaged in removing some of the appliances that had been used in the construction of the bridge. There were other averments as to the particular defects in the plans and in the bridge, also as to the knowledge of the defects by the defendants and the want of knowledge of such defects by Vickers ; and, further, that his injury and death were not the result of his own negligence. But a fuller recital of these averments seems to be unnecessary.
The answer of the defendants was a general denial and a charge of contributory negligence. The trial court ruled that the averments of the plaintiff did not warrant a recovery against the defendants, refused to hear any testimony, and directed a verdict in favor of the defendants.
According to the allegations of the petition and the offer of proof thereunder, the fall of the bridge and the resulting injury and death of Vickers were due to the wrongful acts and omissions of the defendants. The widow is, therefore, entitled to maintain an action against them and to recover for the death of her husband, providing he could have maintained an action against them for the injury if he had lived. Civil Code, § 422. This Code provision is remedial and prospective, and is as applicable to statutory liabilities created after its enactment as to those created or existing before that time. Is there a liability against the defendants, or any of them?
It is contended on behalf of the plaintiff that there is an express provision creating a liability against the County. In 1887 the Legislature enacted the following provision:
“Any person'who shall, without contributing negligence on his part, sustain damage by reason of any defective bridge, culvert, or highway, may recover such damage from the county or township wherein such defective bridge, culvert or highway is located, as hereafter provided; that is to sav, such recovery may be from the county when such damage was caused by a defective bridge constructed wholly or partially by such county, and when the chairman of the board of county commissioners of such county shall have had notice of such defects for at least five days prior to the time when such damage was sustained ; and in other cases such recovery may be from the township, when the trustee of such township shall have had like notice of such defect.” Laws of 1887, ch. 237; Gen. Stat. 1889, ¶ 7134; 1897, ch. 42, §48.
It is said that the statute was held not to be applicable because Vickers was not using the bridge for traveling purposes, but was under it, at the time it fell and killed him. It will be observed that no such limitation is expressed in the statute. Its language is broad and inclusive, making counties and townships liable to “ any person who shall, without contributing negligence on his part, sustain damages by reason of any defective bridge,” etc. The right of action is, therefore, not restricted to any particular class of persons, nor to the position which the person may occupy upon the bridge, culvert or highway at the time of the injury. No reason is seen why a person who is injured while rightfully under the bridge is not as much entitled to recover as one who is injured while passing over it. As the bridge is in, and a part of, the public highway, a person may rightfully pass under it; and the only restriction imposed by statute in that respect is, that the person injured shall be without contributory negligence. It is true, that before the enactment of the law quoted there was no liability against a county or township for injuries resulting from defective bridges, culverts or highways ; but this immunity from liability has been completely withdrawn, and these public corporations are to that extent on the same plane with private corporations and'individuals.' It will be noticed that the language of the act is free from ambiguity and requires no interpretation. The natural and obvious meaning of the language employed fairly includes any one who may be injured by defective bridges, whether he is passing over or under them at the time of the injury.
It is next argued that the act refers only to completed structures and highways ; and then it is further contended that the bridge in question had not been accepted, but was still in course of construction, and therefore that persons injured must look to the contractor for a remedy or to those who directly inflicted the injury. It may be conceded that an incomplete bridge, wholly in charge of an independent contractor, and which is not wholly or partially in the use of the public or under the control of the public officers, is not within the statute. To come within the statute it must have been such a structure as constitutes a bridge, but it is not required that it should be a finished or perfect structure. The claim that the statute applies only to bridges, culverts or highways once complete, but which have become out of repair, and which the county or township has failed to repair after due notice, was denied in the recent case of Reading Twp. v. Telfer, 57 Kan. 798; 48 Pac. Rep. 134. In that case, the same claim was made as to a highway as was made here with respect to a bridge, and to constitute a defective highway within the meaning of the statute, it was said that it was not necessary 'that it should be first improved and put in condition for travel, and then allowed to become defective through lack of repair. In pronouncing the decision, Chief Justice Doster remarked that the statute contains no such exceptions, and besides, “ the statute which gives the right of action in question is a remedial one, and should therefore be liberally rather than restrictively construed.” In the present case, however, we are not required to draw any fine distinctions as to the stage to which construction had proceeded or as to the completed condition of the bridge. The plaintiff alleged and offered to show that the bridge was under the control and supervision of an officer of the'County, and, further, that it had been accepted by the bridge commissioner before the injury occurred. Under the contract with the County the bridge commissioner vas charged with the responsibility»of determining whether the bridge was complete ; and payment for the same was not to be made until he had accepted it as a completed structure. He was the agent of the County, and his acceptance of the same must be regarded as binding upon the County.
It is suggested that the individual officers are not necessary or proper parties defendant; but this question is not raised by the ruling of the District Court, and requires no consideration. The only question before us is, whether the trial court rightfully excluded all testimony, and upon that, we conclude that 'a cause of action was stated by the plaintiff and that she was entitled to introduce evidence.
The judgment of the District Court will be reversed and the cause remanded for a new trial. | [
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Johnston, J.
This was an action brought by Rosa Werner to obtain a divorce from Emil Werner, upon the grounds of habitual drunkenness, extreme cruelty, and gross neglect of duty. She also set forth at length a description of property, and alleged that in some of it she owned an interest, and that the remainder stood in the name of the defendant but was in fact the joint accumulation of the parties while they lived together as husband and wife. In his answer, Emil Werner alleged that he was induced to enter into the marriage relation with Rosa through her misrepresentation and fraud; that she was at the time the wife of John G. Cole, who was then living, and from whom she had not obtained a divorce ; and that he had no knowledge of this fact until the present'proceeding was begun. He also charged her with extreme cruelty, and asked that the marriage contract be declared null and void. In her reply, Rosa Werner asked that, if the marriage should be held to be null and void and no divorce should be granted to the plaintiff from the defendant, there be an equitable and just division of the property which she alleges was the result of the joint earnings and labors of the plaintiff and the defendant during the time they lived together as husband and wife.
At the trial, considerable testimony was offered as to the misconduct of Emil Werner, but the court found it unnecessary to determine whether the grounds alleged by the plaintiff below had been sustained. It appeared from the testimony that Rosa Werner had a husband living at the time she was married to Emil Werner, and, for that reason, the marriage was declared to be null and void, and a division of the property was made. Emil Werner complains of the ruling of the court awarding Rosa a share of the property, contending that she was never in fact his wife, and that alimony is never awarded to a woman who is not a wife.
It is true, as the plaintiff in error contends, that the marriage between the parties was absolutely void from the beginning. Although living together as husband and wife, they were not in fact married, and hence no allowance could be made as alimony. The rule is that permanent alimony can only be allowed where the relation of husband and wife has existed ; but this rule does not preclude an equitable division of the property where there is a judicial separation of the parties on account of the invalidity of the marriage contract. Fuller v. Fuller, 33 Kan. 582, 7 Pac. 241.
Strictly speaking, this action as it was tried was not a divorce proceeding, but it was rather one to annul a void marriage. Although instituted under the statutes to obtain a divorce, the pleadings were so drawn and the issues so shaped that it was within the power of the court to grant relief independently of the statutes relating to divorce, and it rendered a decree of nullity rather than a decree of divorce. The plaintiff below set forth at length the description and nature of the property which had been acquired by the parties, the manner in which it had been acquired, and her interest in the same, and in the prayer of her reply she asks to be allowed a just and equitable division of the same in case the marriage was held to be null and void. The court in its decree did not treat the award as alimony, but rather adjudged her a share of the property jointly accumulated by the parties during the time they lived together as husband and wife. Fuller v. Fuller, supra, greatly relied on by the plaintiff in error, holds, it is true, that in an action of this character the defendant, is not entitled to recover permanent alimony, but at the same time it is expressly stated :
“That in all judicial separations of persons who have lived together as husband and wife a fair and equitable division of their property should be had; and the court in making such division should inquire into the amount that each originally owned, the amount that each party received while they were living together, and the amount of their joint accumulations.”
Even in cases where the marriage is valid, and a divorce is refused for any cause, the court may adjudge an equitable division and disposition of the property of the parties. Civil Code, § 643. But independently of the statute of divorce, we think the court had authority to decree, not only an annulment of the marriage, but also the division of the property which had been jointly accumulated by the parties. It was an equitable proceeding, and, within its equity power, the District Court had full jurisdiction to give adequate relief to the parties.
The division that was made was eminently equitable and just. While Emil Werner had considerable property at the time of the marriage and Rosa had none, the testimony tends to show that the property which they have now is largely the result of their joint labor and earnings. .She was active, industrious, and faithful, and, besides household work, she was an efficient aid in conducting and carrying on the different branches of business in which he was engaged. In the early days she performed labor of the hardest and most menial character, and throughout the twenty-two years in which they lived together as husband and wife she was diligent, tireless and economical in building up a business, and in gathering the property which they held at the time of the trial. She appears to have been a valuable assistant in managing the. business and in caring for the property in which their earnings were invested. A portion of the time the title to the property was in hér name, but at the time of the separation he held the legal title to most of it. The fact, however, that the legal title stood in the name of one or of the other of the parties does not prevent a just distribution of the property jointly contributed and in fact jointly owned by both. If a separation had occurred while the property stood in her name, it would hardly be contended that he would be deprived of any share or interest in the same. No more should she be deprived of a fair share of the fruits of her skill, industry and toil while she occupied a partnership relation with him. The court has the same power to make equitable division of the property so accumulated as it would have in case of the dissolution of a business partnership.
It is claimed that defendant in error had no right to appeal to the equitable consideration of the court, because the marriage contract was entered into through deception and fraud on her part, while the conduct of the plaintiff in error was faultless in this respect. The testimony hardly sustains the contention. She states that she frankly told Werner of her former marriage to Cole, and she further told him that Cole claimed, at the time he abandoned her, that when he married her lie had a living wife. Werner advised her that as Cole had another living wife her marriage with him was void, and that she was at liberty to marry again. He produced a law book and read from the same to convince her that the former marriage was no obstacle to a legal marriage with him. There is considerable testimony tending to show that there was no deception or fraud and that her misconception of the law was largely due to the advice and influence of the plaintiff in error. No reason is seen why she was not entitled to ask and obtain a share of the joint accumulations, and, in our view, the share which was awax-ded her was no more than she was justly entitled to.
The judgment of the Court will, therefore, be affirmed. | [
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Doster, C. J.
This action was for the foreclosure of a mortgage upon real estate. A demurrer to the petition was sustained, upon the grounds that the facts stated were not sufficient to constitute a cause of action and that several causes of action were improperly joined. From the order sustaining the demurrer and from the judgment following it the plaintiff prosecutes error to this court.
The facts stated in the petition may be summarized as follows. Soranus L. Brettun owned the property in controversy. He died, leaving a will in which Margaret Brettun, his wife, and Charles C. Black were named as executors. The will made certain provisions for the widow different from the statutory allowance. She elected to take under the statute and not under the will. The will also gave an interest in the estate to Black, one of the executors, a life interest in certain parts of it to Brettun Crapster and Caroline L. Bangs, defendants, with remainder to certain minor children, also named as defendants. The estate was involved, the property in question was encumbered with liens for material used in the construction of buildings, and valuable personal property of the estate was pledged as collateral. The executors and all of the adult devisees under the will, including the widow, joined in a mortgage to secure five thousand dollars which they borrowed for the benefit of the estate. The petition allleged :
“ That it was the intention of all the parties at the time, that the said mortgage should convey all of the interest of each of the parties thereto, viz., Charles C. Black, Margaret Brettun, Brettun Crapster, and Caroline .L. Bangs, as well as any interest of the estate of Soranus L. Brettun, deceased, which said parties or either of them might convey ; that in the mortgage so prepared and executed, Charles C. Black, the executor, Margaret Brettun, the executrix, Brettun Crapster and Caroline L. Bangs, heirs of Soranus L. Brettun, deceased, were named as grantors on the face of the papers, and therein they covenanted that they were seized of a good and indefeasible estate of inheritance in said land, free and clear of all encumbrances, and that they would warrant and defend the same in the peaceable possession of the grantees thei'ein, their heirs and assigns forever, against the lawful claims of all parties whomsoever ; intending in and by said mortgage, as evidenced by the terms thereof and the covenant above quoted, to convey each and every interest in said property which they might convey to the effectual fulfilment of the said covenants of warranty above recited, and by said mortgage to create a first lien on the fee simple title to said real estate ; it being believed by all the mortgagors and the mortgagees that said instrument had that effect.”
When this mortgage matured it was renewed by a new mortgage with like covenants. When the second mortgage matured, another, for seven thousand dollars, was made, to continue the same indebtedness and to provide for clearing up interest and taxes.' This was signed by the same parties as before, the wife of Black joining, in addition. The same covenants of title and the same warranty were made ; and the allegations of the petition were that the mortgage was made with the same intent as the first. The mortgage and notes first executed were bought by the plaintiff, for whose benefit all the renewals were made, and who is the owner and holder of the outstanding notes and mortgage. Upon the maturity of the seven-thousand-dollar mortgage and note, an extension agreement was entered into, signed by Charles C. Black, Caroline L. Bangs and Arthur, her husband, Brettun Crapster and Jennie, his wife. Margaret Brettun had in the meantime died, and the defendants last named, in addition to the interests in the estate previously possessed by them, had become her heirs at law.
The parties signing the extension agreement covenanted in it that they were the lawful owners of the premises described in the mortgage, and they bound themselves to pay the interest and principal of the debt so secured and extended; and in consideration of the extension agreement and the covenants to it, the plaintiff agreed to extend the time of payment of the loan and gave the parties the privilege, not contained in the original mortgage., of paying five hundred dollars or any multiple thereof before maturity. All the mortgages were signed by Charles C. Black as executor, and Margaret Brettun as executrix. The extension agreement was signed by Black without an affix of his title. The petition alleged that all the parties to the several instruments signed them as principal obligors ; alleged the failure to pay the seven thousand dollars according to the terms of the extension agreement, or to pay the interest thereon, the failure to pay taxes, and other breaches of the terms of the outstanding mortgage; and also alleged that the interest of all the defendants was junior to the plaintiff’s lien under his mortgage. The prayer was for judgment against the parties signing the note and extension agreement and for foreclosure of the mortgage, together with a prayer that, upon such foreclosure, the interest of all the defendants be barred.
It is first contended by the defendants in error that no obligation arose out of the foregoing state of facts, because the executors could not bind the estate; that the obligors other than the executors must be regarded as sureties, and inasmuch as the principals cannot be held the sureties must likewise be discharged. The abstract legal propositions advanced by the defendants in error are no doubt sound. The executors had no authority, without an order of the probate court, to borrow money upon the- credit of the estate, nor to execute the mortgage in their trust capacity. Nor can a surety be held in cases where the obligation is not enforceable against the principal. The defendants in error, however, overlook the fact that the executors bound themselves in their individual capacity, and, having done so, bound their interests in the land in question as devisees of Soranus L. Brettun. The general rule is that if an agent makes a contract which he has no authority to make he binds himself personally to the fulfilment of his engagement. Frankland v. Johnson, 147 Ill. 520; Myers Tailoring Co. v. Keeley, 58 Mo. App. 491; Gestring v. Fisher, 46 Mo. App. 611. This general doctrine is of application to the case of an executor or administrator who without authority undertakes to bind the estate of the decedent. The executor or administrator “cannot, by virtue of the general powers of his office, make any contract which will bind the estate, and authorize a judgment de bonis decedentis. The only effect of such engagements is to bind himself individually.” 7 Am. & Eng. Encyc. Law, 299.
“The legal doctrine is well known, and is to be found in . any of the usual text-books. Thus, Mr. Daniel, in his work on Negotiable Instruments, § 262, says : ‘An administrator or executor cannot bind the decedent’s estate by any negotiable instrument; he can only bind himself personally, even if he adds to his own name the designation of his office.’ ■ . . . Accepting this as the undoubted rule, it is plain that the defendant in this case, by becoming the maker of these notes, imposed upon himself a purely personal liability.” Hellier v. Lord, 55 N. J. Law, 367.
The rule being as thus stated, it follows that the mortgagors, and signers of the extension agreement, bound whatever interests they had, either as. devisees or as heirs, in the estate of Soranus L. Brettun. These considerations also dispose of the objection that the parties, other than the executor and executrix, being sureties, cannot be held. As a fact, according to the allegations of the petition they were not sureties but were principals. They had interests in the mortgaged estate. Along with the others, they pledged their interests as security. They were not strangers extending a friendly accommodation. Besides, the obligation does not fail as to those of whom the assertion of principalship is made. As to them it fails only in the capacity the}’' assumed to sign. In then-capacity as individuals it does not fail at all.
The claim of misjoinder of causes of action is also without merit. There was but one cause of action. There was not a cause of action upon the last ox the mortgages and one upoxx the extension agreement, nor was there one against the executors ixi their trust capacity and one against them as ixidividuals, and another against the other adult obligors, and still another against the other parties defendant. The transaction of borrowing, mortgaging, renewing, and extending, was a single transaction so far as all the defendants were concerned. Besides, if the view of defendants in error were correct, if there were several causes of action stated in the petition, they were nevertheless stated in form as one, and the proper practice would have been to file a motion to separately state and number the supposed different causes of action, not to demur to them as though they were separately stated but impropex-ly united.
The judgment of the -court below is reversed with directions to overrule the demurrer. | [
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Dostejí, C. J.
Section 1, chapter 74, Laws of 1891 (section 15, chapter 32, Oeneral Statutes 1897), reads as follows :
“ Whenever any territory adjoining or touching the city limits of any city of the first class having a population of 30,000 inhabitants or more shall be subdivided into lots and blocks, or whenever any unplatted tract of land shall lie upon or mainly within any such city, or is so situated as to be bounded on three-fourths of its boundary line by platted territory of or adjacent to such city, or by the boundary line of such city or by both, the same may be added to and made a part of the city by ordinance duly passed, which ordinance shall describe the territory by giving the name of the subdivision or addition as platted, and by giving the metes and bounds of such unplatted tract, or by giving the metes and bounds of each tract and plat so taken in separately, or of the entire tract or tracts so taken in, with the section, town, range and county in which the same is located, without further proceedings ; but nothing in this act shall be taken or held to apply to any tract or tracts of land used for agricultural purposes when the same is not owned by any railroad or other corporation.
By ordinance of March 8, 1892, the city council of Kansas City, in pursuance of the above statute, extended the city boundaries so as to include certain lands belonging to the defendant in error the Union Pacific Railway Company. The preamble to this ordinance reads as follows :
“Whereas, a certain unplatted territory belonging to the Union Pacific Railroad Company lies upon and mainly within 'the city of Kansas City, Kansas, and is so situated as to be bounded on three-fourths of its boundary line by platted territory of, and adjoining to said city ; which said railroad land, by virtue of its location, enjoys the benefits of said city, without sharing its burdens, now therefore,” etc.
This preamble shows that the added tracts belonged to one of the classes of lands the annexation of which is authorized by the statute. The defendants in 'error obtained a perpetual injunction against the collection of city taxes to which the lands in question became subject after their incorporation into the city limits. Error is now prosecuted from the judgment awarding the injunction. The questions for decision are presented to this court, as in the court below, upon the demurrer of the defendants, now plaintiffs in error, to the petition of the plaintiffs, now defendants in in error.
The contention of the defendants in error is that the act providing for the extension of city boundaries discriminates between classes of real estate owners, and is therefore violative of that part of the Fourteenth Amendment to the Constitution of the United States which prohibits the states from depriving persons of property without due process of law, or denying to persons within their jurisdiction the equal protection of the laws. This contention is based upon the exception forming the last clause of the statute quoted : “But nothing in this act shall be taken or held to apply to any tract or tracts of land used for agricultural purposes when the same is not owned by any railroad or other corporation.” So far as this statute discriminates between classes of owners of agricultural lands the defendants in error cannot be heard to complain. Their lands are not agricultural lands. At least they do not allege them to be such lands, but on the contrary allege that parts of them are used for railroad purposes and that the remaining portions are vacant and unoccupied lands held and possessed for railroad purposes. Owning no agricultural land, the defendants in error are not affected by the discrimination which the statute makes between the different classes of owners of such kind- of land, and they cannot, therefore, be heard to complain on that score.
“A court will not listen to an objection made to the constitutionality of an act by a party whose rights it does not affect, and who has therefore no interest in defeating it.” Cooley’s Constitutional Limitations (6th ed.), 196.
' The statute, however, does exempt some agricultural lands from its operation. Of this the defendants in error complain and for the like reason as before. The discrimination in this particular is not in respect of the ownership of the lands, but in respect of their character — the uses to which devoted. It is not claimed, in specific terms, that the T . . , . . . ,. . ,. Legislature is powerless to authorize the ° extension of city boundaries over lands platted for city purposes and used for city residences, and, at the same time, exempt agricultural lands having to the city like relations of situation, contiguity, and otherwise. Such claim is comprehended, however, within-the general scope of the argument made. We do not assent to it. No case in assertion of such doctrine has been cited to us, and none we believe can be found. The very fact-of land not already surrounded by incorporated portions of the city being used for agricultural purposes, is prima facie evidence of the rightfulness of its exemption from municipal control.
“The fundamental idea of a municipal incorporation ... is to invest compact or dense population with, the power of local self-government. Indeed the necessity for such corporations springs from the existence of centers or agglomerations of population, having, by reason of density and numbers local or peculiar interests and wants, not common to adjoining sparsely settled or agricultural regions.” Dillon’s Municipal Corporations (4th ed.), §183.
Municipal incorporation involves of necessity the idea of corporate limits coterminous with the urban population and exclusive of the adjoining agricultural tracts. City limits are not of course always terminable with population. Manufacturing and other industrial institutions, such as railway yards, round houses, grain elevators and the like, are often situated beyond the limits of city population. Ordinarily in such cases they are immediately adjoining it. In and around such places many persons are employed at labor, both day and night, and the necessity for the inclusion of such places within city boundaries is just as great as though they formed parts of the residence and business portions of the city. To say that the tracts of land upon which these industrial institutions are situated may not be included within city boundaries'and subjected to municipal control, because an adjoining tract of land used for farming purposes, but equally as near to the heart of the city is not likewise brought within the city limits, is a claim, to us, unheard of before. It is the business of the Legislature to enact general rules by which the boundaries of incorporated districts may be fixed in the first instance, and by which additions thereto may subsequently be made. Dillon’s Municipal Corporations (4th ed.), §185. The special instances in which the general legislative rules may be applied must of necessity be left to the municipal authorities of the city in question. Instances may occur in which both Legislature and city council will violate funda mental rules, but the petition of the plaintiffs below, the defendants in error here, does not show any such case.
It is contended that the act in question, though general in its terms, is nevertheless special in point of fact, because there was at the time of its enactment, and is yet, but one city to which its provisions could apply. This does not make it a special law.
The judgment of the court below was wrong. It is reversed with directions to sustain the demurrer to the petition. | [
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Johnston, J.
An action was brought to. foreclose a mortgage executed by Jackson and Jemima Cunningham to secure a debt to J. Curtis Smith. L. Scott was employed as an attorney by the Cunninghams, in whose behalf he filed an answer and cross-bill, setting up that a certain other mortgage, which was of record, was not a lien upon the premises, and asking to have it canceled. Upon trial, judgment was given for Smith for the amount of his debt, and for a foreclosure of his mortgage; and judgment was also given upon the cross-petition of the Cunninghams, holding the other mortgage to be void, and canceling the same, and quiet ing the title to the lands as against that mortgage. Prior to the sale of the land under the foreclosure proceedings, Smith died; and, when a motion for revivor was made, Scott, who had been the attorney of the Cunninghams from the commencement of the action, and upon the authority of the son of Cunningham, who had employed him, filed a written waiver of the notice of revivor, signing the same as the attorney of the Cunninghams. A sale was subsequently made to L. M. Bedell, and after confirmation of the sale a deed was executed to him’by the sheriff. Bedell afterward conveyed the property to C. B. Christie. Neither Be-dell nor Christie was a party to the foreclosure suit. Christie leased the premises to the Cunninghams for money rent, and after about a year from the making of the lease the Cunninghams began this action, alleging that Scott was without authority to waive notice of revivor, and that the order made reviving the action in the name of K. S. Smith, as well as the sale, the confirmation of sale, the sheriff’s deed conveying the property to Bedell, and the deed from Be-dell to Christie, were all void; and upon the proof introduced the court held that all the .proceedings in the case subsequent to the decree of foreclosure were absolutely void, and the judgment of the court was that they be vacated and set aside.
The principal question in the case is whether the revivor of the judgment was properly had. Had the attorney, Scott, authority to waive notice of revivor? From the testimony it appears to have been done by him with the view of avoiding the costs necessary to a Personal service upon the Cunning-hams, from whom he had general authority to appear. The son of the defendants, through whose agency Scott was originally employed, appears to have consulted with his .parents and reported to Scott that they desired him to appear in their behalf and secure a revivor of the judgment without the expense of service of notice. The defendants now deny that they authorized their son to speak for them in this respect; but was any special authority required for the action taken by the attorney? He was employed to represent them in the foreclosure proceeding, not only with respect to the Smith mortgage, but also for the purpose of securing the annullment of the other mortgage, which stood upon the record as a lien against their property. At the instance of their attorney, the last-named mortgage was vacated and set aside ; and thus the judgment which was subsequently revived awarded affirmative relief to them. They were, therefore, interested in keeping it alive and making it effectual. In regard to the relation of attorney and client it may be said that the attorney’s authority to act for his client continues until the end of the litigation, or until the discharge of the particular purpose for which he was employed, unless his authority is sooner revoked.
In a large number of cases the entry of judgment ends the litigation, but in foreclosure proceedings it would seem that the end of the litigation is not reached until the lien is enforced by the sale, and confirmation of sale, of the mortgaged property. The. understanding of the profession is that the duties and powers of an attorney continue until the final conclusion of the foreclosure proceedings. Such proceedings are not concluded by a decree directing a sale of the property, nor has an additional retainer or new contract with 'an attorney to represent his client in the proceedings subsequent to the decree ever been deemed necessary. In such a case the attorney originally employed would be deemed derelict in Ms. duty i'f he failed to protect the interests of his client by examining the circumstances of the sale and every step taken in enforcing the lien. If there were any departures from the directions in the decree or substantial non-compliance with the requirements of the law, it would be his duty to resist the confirmation of the sale and to move to set the sale aside.
Leaving out of consideration the testimony, which strongly tends to show a special authority, as well as the lease, which tends to show a ratification of the acts of the attorney, we think the general employment conferred authority upon Scott to represent the defendants in all necessary steps until the litigation was ended by the confirmation of the sale, including the acceptance of notice of the motion for revivor. Manning v. Hayden, 5 Sawyer, 360; 3 Am. & Eng. Encyc. of Law (2d ed.), 327.
The judgment of the District Court will, therefore, be reversed and the cause remanded for further proceedings. | [
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Doster, C. J.
This was an action brought by Clinton L. Caldwell, as assignee of Angelí Matthewson & Company, against Cornelia W. Matthewson to recover from her possession certain promissory notes alleged to belong to the assignors, and for judgment for the amount of certain other promissory notes alleged to belong to them, which she had collected and converted to her own use. The facts of the case, together with some antecedent history leading up to the transactions immediately in question are, that Angelí Matthewson & Company was a partnership engaged in banking, lending money on real estate security, and in various other financial enterprises. Angelí Matthewson, the senior member of the firm, and Cornelia W. Matthew-son are husband and wife. Mr. Matthewson was indebted to his wife in the sum of twenty thousand dollars or more, for real estate conveyed by her to him. The firm of Matthewson & Company -was concerned in a Water Works enterprise in Missouri requiring the use of money. To supply it with the necessary funds Angelí Matthewson mortgaged a business block in the city of Parsons for ten thousand dollars and loaned the amount to the firm, taking its note therefor. As collateral security to this loan it was agreed among the partners that notes belonging to the firm' to the amount of fifteen thousand dollars should be set apart for the security of the Aen thousand dollar note and that upon the payment of any such collateral notes others should be substituted, so as to keep the security up to the agreed amount. This was done ; collateral notes to the amount of fifteen thousand dollars were set apart, upon the package containing which the following memorandum was endorsed: “ Installment bills receivable, number- to number - collateral to A. M’s. firm note for ten thousand dollars.” This package was turned over to Mr. Matthew-son and placed by him in the vault of the Company’s bank where he kept other securities and private papers belonging to himself and his wife. One of the firm’s clerks was instructed to substitute other notes in place of such of the collateral as might be paid, and this was done. -Subsequently it was agreed among the partners that the firm note to Mr. Matthew-son should be taken up and a new one for the same amount should be executed to Mrs. Matthewson, and that the collateral already pledged to secure his note should be held in like manner as security to her note, with the like agreement as to the substitution of other notes in place of such as might be paid. This was done ; the package of collateral notes was re-marked : “ Installment bills receivable, number-to number -. Collateral to firm note to Cornelia W. Matthew-son,” and was placed in charge of the clerk with like instructions as before. Some time thereafter the firm became insolvent and executed an assignment of its property to the defendant in error for the benefit of its creditors. The assignee took charge of the assigned property. The plaintiff in error took the package of notes from the bank vault and refused to return it to the assignee. She subsequently presented her note against the firm for allowance by the assignee. The original amount had been reduced by payments derived from collections of the collateral, to less than nine thousand dollars, at which sum it was allowed.
The above is a summary of the undisputed facts. With the exception of some unimportant details, the only matter about which there was any substantial disagreement was the time at which the package of collateral notes was removed from the firm’s bank vault. The plaintiff in error claimed that it was taken away before the deed of assignment was delivered to the assignee; the assignee claimed that it was not removed until the lapse of several hours after the delivery to him of the assignment papers. Upon the trial a general verdict was returned in favor of the assignee, and special findings of fact were made, which each of the parties claims supports his contention. Judgment was rendered in favor of the assignee, from which the defendant prosecutes error to this court. Numerous assignments of error are made, and upon a cai-eful review of the case we are forced to the conclusion that most of them are well taken. We shall, however, notice only a few of those which appear to be most prejudicial.
Louis Weeks testified that sometime before the assignment, and while the package of notes lay in the bank vault, marked as before stated, as collateral to the firm’s note to the defendant, one Snyder, a member of the firm, anticipating an early visit of the Bank Commissioner and an inspection by him of the assets of the bank, suggested the removal of the memorandum from the collateral for the purpose of deceiving the Commissioner, and that he and the witness made such removal. No evidence was offered tending to show that the plaintiff in error knew that this act of deception had been practiced or was contemplated, nor was the evidence offered in contradiction or impeachment of Snyder. Up to that time in the course of the trial Snyder had not testified. The evidence of the witness Weeks was not given in rebuttal of any testimony offered by any of the defend- . * . ant s witnesses, but was given m behalf of plaintiff in the making of his original case. This was error. The defendant, plaintiff in error here, is not to be prejudiced by the inference deducible from such an act of spoliation of her property, performed as it was without her knowledge, by a person in nowise authorized to represent her. The testimony was inadmissible except in impeachment of Snyder after a foundation therefor had been duly laid.
As before stated, the firm’s note to the plaintiff in error, less certain credits endorsed thereon, was allowed by the assignee. The record is entirely barren of evidence tending to impeach the validity of this note. Notwithstanding this lack of evidence, and notwithstanding the previous admission of the bona fieles of the note, made by the assignee in allowing it as a claim against his trust, the court submitted the question of its bona fieles to the jury, and the jury, in singular disregard of the unquestioned facts, found that the firm was not indebted to the plaintiff in error in any amount at the time of the assignment, and that the note given to the plaintiff in error by the firm was wholly without consideration. Of course if such answers truly .stated the facts the plaintiff in error had no indebtedness to which the notes in question could be pledged or held as collateral, and the demand of the assignee for their return was rightfully made. The assignee however admitted the allowance by him of the claim of the plaintiff in error upon the note executed to her by the firm. His excuse for now contesting such note is that he allowed it in ignorance of its lack of consideration. This excuse, even if proved to be well founded, cannot avail him in a collateral proceeding such as this. The statute (Gen. Stat. 1897, ch. 111, § 28) declares :
‘ ‘ The decision of the assignee in relation to all claims presented to him for allowance shall’ be final,, unless a creditor or some other person interested shall after a decision is made on any such claim ask an appeal therefrom ; and all appeals so asked shall be allowed by such assignee to the district court of the county having jurisdiction thereof.”
Under this Statute the adjudication made by the assignee himself is final upon him, unless vacated by appeal or in some appropriate direct proceeding, and the existence and amount of the claim thus found by him to be due could not be made issues upon the trial of this case.
The plaintiff in error offered evidence tending to prove the assignee’s assent to the holding and collection of the collateral notes by her and the application of the proceeds of their collection to the payment of her debt. This offer was rejected, and erroneously as we think. It was competent as an admission the assignee of her right to the subject-matter of the action. It would not, perhaps, have constituted an estoppel upon the assignee, but it was competent as an admission by him against the right of the contention he was then urging.
There is an irreconcilable conflict between many of the findings of the jury. For instance, it was found that the firm’s note to Mr. Matthewson was given for a valuable consideration and secured, as before stated, by a pledge of collateral; that it was subsequently surrendered and a new note in lieu of it given to Mrs. Matthewson with the same agreement as to security, and yet, as before stated, the jury further found that such last mentioned note was without consideration, and that the firm was not indebted upon it at the time of the assignment; but it was further found that such note to Mrs. Matthewson had been paid prior to the assignment. Besides the inconsistencies between these findings, which would be sufficient of themselves to require a reversal of the case, none of such findings tending to impeach the note in Mrs. Matthewson’s hands are supported by any. evidence. Practically the only claim the defendant in error makes in support of the judgment of the court below is, that there was no valid delivery of the collateral notes as pledges for the payment of the principal note. The evidence is uncontradicted that upon the making of the note to Mrs. Matthewson the collateral notes were placed in the hands of her husband, as her agent, for the purposes of security, and were by him placed in the vault of the firm’s bank, marked, as before stated, with a memorandum to the effect that they were collateral to her note ; and one of the bank clerks was given special charge of them, with directions to substitute other notes in place of such as might thereafter be paid. The defendant in error contends that these notes not being removed from the place where they had been kept, or otherwise placed beyond the reach of the firm, but remaining in the receptacle where other like property of the firm was kept, there was no valid delivery of them as pledges.
It is true that in order to the taking effect of a contract of pledge there must be a delivery of the thing P^dged— there must be change of possession from the pledgor to the pledgee, There was, in this case, such change of possession, such delivery of the pledge as to satisfy the requirements of the law. Mr. Matthewson, although one of the pledgors, was also the agent of his wife, authorized to care for her property. He and his partners, as debtors to Mrs. Matthewson, separated the notes in question from others of like kind, and placed upon them an identifying memorandum specifying the purpose for which they had been set apart. They were then put in charge of a disinterested third person. The fact that^ the pledgors had access to the place where the pledges were kept, and could have violated the terms of the pledge, constitutes no sufficient reason for holding that the contract never took effect.
The case of Casey v. Cavaroc, (96 U. S. 467,) is somewhat like this in point of fact, and in it a view contrary to the one herein expressed was taken. There is, however, two distinguishing differences between it and the case we have for consideration. In that case no memorandum was entered upon the package of collateral notes to show that they had been pledged. They were simply separated from others of a like kind and placed by themselves without any identifying mark. In this case the notes were not only separated and placed by themselves, but a memorandum explanatory of the reason for their separation and for placing them aside was made, which memorandum disclosed in general terms the contract made with respect to them.
Again, on the day the firm’s note was given to Mrs. Matthewson in place of the one previously given to her husband, she was in the bank, the contract of novation was explained to her, the note and accompanying collateral were exhibited to her and she gave her assent to the transaction. No facts of similar kind existed in Casey v. Cavaroc, supra. Nearly all the authorities are to the effect that, if the pledgee receives manual possession of the pledge, its return to the pledgor as special bailee or agent may be made without impairing the validity of the contract of pledge. Jones on Pledges, §§ 40-44. Had Mrs. Matthewson taken the pledges into her hands with intent to possess and keep them and the next moment returned them to her husband or any other member of the firm to care for them as her agent, the requirements of the law would have been satisfied. They were equally satisfied by the act of the pledgors, the firm, in pointing out the pledged property to her, with explanation of, the right to it which they had conferred upon her, and obtaining her assent to the transaction.
Other errors, not necessary however to elaborate upon, were committed by the court in the trial of the case. For instance, it was error for the court to say to the jury,, as was done in one of the instructions, “that it had been impaneled only for the purp0se 0f answering certain special questions of fact, which will be submitted,” while at the same time the court authorized the jury to return a general verdict. The giving of this instruction doubtless magnified in the mind of the jury the making of the special findings as the essential duty to be performed, and the return of the general verdict as largely a matter of form. Another of the instructions was erroneous, as also the admission of the testimony upon which it was based. Evidence had been offered by defendant in error, plaintiff below, that Mr. Matthewson had paid his indebtedness due his wife by certain conveyances of real estate. Upon the question whether the firm was indebted tb her at the time of the assignment, the instruction in question indicated to the jury that these payments by Mr. Matthew-son of his own debt might be taken into account, and in all probability this instruction led to the making of the finding heretofore* noticed that the firm was not indebted to the plaintiff in error at the time of the assignment. Another instruction authorized the jury to find for the plaintiff, if it were true that at the time of the assignment the collateral notes “were not in the manual and actual possession of Angelí Matthew-son.’l These and other like rulings of the court, together with those first and more particularly noticed, constrain us to believe that such substantial wrongs were done to the plaintiff in error upon the trial of the case as to justify a reversal of the judgment. Such reversal is accordingly ordered with instructions to proceed in accordance with the views expressed herein. | [
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Johnston, J.
On July 29, 1887, Thaddeus Hyatt .brought an action in the District Court of Atchison County against George T. Challiss, Reuben M. Manley and A. F. Martin to recover a tract of real estate. Answers and cross-petitions were filed by the defendants, setting up the rights and interests which they claimed in the land. Upon issues duly joined between these parties a trial was had on January 30, 1888, and judgment was then rendered in favor of the defendant Challiss, and against the plaintiff and the other parties. The plaintiff caused notice to be entered upon the journal demanding another trial; and thereupon the judgment was vacated and the cause set down for trial at the succeeding term of court. When the case was called for the second trial, at the September, 1889, term of court, the plaintiff dismissed his action.
Afterwards, on December 3, 1890, the plaintiff brought an action against the same defendants in the Circuit Court of the United States for-the District of Kansas, to recover the same land. Challiss filed a separate answer,, setting up the proceedings in the District Court in Atchison County, including the judgment on the merits, and vacation of the same, and the'voluntary dismissal, and further alleging that since the dismissal he had conveyed a portion of the land to another. The answer of the defendant Martin was substantially the same as that of Challiss, while Manley set up a claim to the entire tract. The proceedings in the state court being admitted, the defendants moved for judgment on the pleadings, claiming that the plaintiff having had'one trial of the cause on its merits, which resulted against him, and having exercised his statutory right to vacate the judgment, and having afterwards, when the case was called for trial, dismissed the same, he had exhausted his right to further litigate any matter in issue therein. The federal court held that under the circumstances he was barred from maintaining another action in that tribunal.
Within a few days after this decision was made the plaintiff instituted -the present action in the District Court of Atchison county, and asked for the recovery of the same land. The same parties were made defendants, as were also the parties to whom conveyances of the land had been made. The defendants set forth their respective interests in the land and the transfers that had been made, as well as the former proceedings in the state and federal courts. The plaintiff in his reply admitted that such proceedings had been, had, but alleged that they constituted no bar to the trial of the present action. The court sustained a demurrer to the reply, holding that the plaintiff was concluded by the proceedings already had, and judgment was given against him. The correctness of this ruling is the only question presented for review.
The contention on the part of the defendants is that as there was a trial on the merits in the State court, and judgment rendered against the plaintiff, which was set aside, not for any error occurring at the trial, but as a matter of right given by the statute, the voluntary dismissal of the case after the , granting of another trial ended the litigation, and that the plaintiff was not entitled to reopen the controversy in the same or any other court. This was the view taken by the Supreme Court of Wisconsin, in a case under a statute substantially similar to ours, in which it was held that the new trial granted in ejectment cases was another trial of that identical case and before the same court. It was remarked :
“If, therefore, the party obtaining it desires a new trial, he must comply with the requirements of the statute. He must proceed to it in the same action- and before the same court that granted it. He cannot, because he happens to be plaintiff, be permitted after-wards to abandon the suit altogether, and commence a new one before the same or another tribunal. This would be allowing him to turn a privilege intended for his benefit into an instrument of the greatest oppression and injustice to the opposite party. It would be an utter perversion of the liberality of the legislature, and a fraud upon the statute. For if he can do so once, he may any number of times, and thus his statutory privilege may become the means of most vexatious and harassing litigation to the defendant.” Cunningham v. City of Milwaukee, 13 Wis. 120.
When this litigation was before the federal court, the effect of the dismissal by the plaintiff after obtaining a new trial was considered; Finer, J., holding that by procuring that judgment to'be set aside, without costs, under the statute, which was a part of the proceedings authorized, he had -waived his right to resort to another trial in the federal court. Hyatt v. Challiss, 55 Fed. 267. In the decision of the case reference was made to Fraser v. Weller (6 McLean, 12), in which it was held that the institution of another action after the dismissal “ would be a fraud upon the law. For aught that appears, the first judgment could not have been set aside except under the provisions of the statute. This remedy having been claimed under the statute, the party is bound to go on with another trial. Having set aside the bar to another suit, he does so under an obligation to pursue the special remedy under the statute. He cannot claim the remedy in part to his advantage, and then abandon it to the injury of the other party.”
The reasoning in these authorities is strongly against the claimed right of the plaintiff to abandon his suit in ejectment after judgment on the merits, and to prosecute a new one before the same or any other court, but whether he is entitled to reopen the controversy and relitigate the question or not, it has been finally determined against him in a court of com-petent jurisdiction. That was the ques^011 which was considered and determined by the United States Circuit Court. The matters set up in bar now were pleaded and in issue in the suit in that court. The points made and the questions argued now were the ones discussed and decided by that court. It had cognizance of the class of cases to which the one in question belongs. The proper parties were before the court, and the point decided was fairly presented by the pleadings. That decision has never been vacated or set aside. It stands unreversed, and must be considered as conclusive between the parties.
The question arose and it was determined, it is true, upon a demurrer ; but, as the demurrer admitted all the facts in regard to former litigation set up in the pleadings, the decision sustaining it is as conclusive as if the facts had been proven upon trial and a judgment based thereon had been rendered. Brown v. Kirkbride, 19 Kan. 588; 21 Am. & Eng. Encyc. Law, 269. When the demurrer was sustained the federal court entered an order of dismissal, but it was not a dismissal for any of the grounds mentioned in section 397 of the Code, and cannot be regarded as a dismissal without prejudice. The case was not disposed of because there was a defect of parties, or that the court was without jurisdiction, but rather because the plaintiff, by his conduct and the former litigation in other courts, was technically estopped from reopening the controversy. It appears clearly enough from the opinion of the Federal court that the merits were involved and that the point now before us was directly adjudicated. It is well settled that an issue so determined is a bar, not only to any dispute as to the facts, but also as to any further consideration of the law bearing on the case.
The judgment of the federal court is conclusive, and the questions decided cannot be again contested between the same parties or those in privity with them.
The judgment of the District Court will be affirmed. | [
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Johnston, J.
In August, 1895, Thomas B. Samuel brought an action against his wife, Mary J. Samuel, for the purpose of procuring a divorce on the ground of abandonment. In her answer and cross-petition, the defendant alleged that the plaintiff had abandoned her,.and she asked for a divorce and for alimony.
In February, 1896, the cause was tried, and resulted in a denial of a divorce to either of the parties. At the same time the court awarded the defendant $2500, which was designated as alimony, but which appears to be in fact an equitable division of property, made pursuant to the provisions of section 643 of the Civil Code..
The plaintiff prosecutes this proceeding in error and alleges that the judgment should have been in his favor. Notwithstanding the commencement of this proceeding, it appears that he went to Oklahoma and, on August 9, 1897, there instituted an action for divorce against his wife. A trial of that action was had in October, 1897, when the plaintiff was granted a divorce, the decree barring the defendant from all right, title and interest in the estate and property of the plaintiff. The judgment of the Oklahoma court appears to be a valid and final adjudication, divorcing the parties and determining their marital property rights.
The defendant contends that the action of the plaintiff in prosecuting a proceeding for divorce in Oklahoma and obtaining a final decree there is inconsistent with the maintenance of this proceeding and bars his right to ask for a reversal and a renewal of the divorce litigation.
We think the contention must prevail. The object and effect of a reversal is to reopen the controversy as to the plaintiff’s right to a divorce and the relative rights of the defendant; a controversy which has been finally settled in another forum at the instance of the plaintiff. He abandoned his residence in Kansas and his pending proceeding here, and thereby effectually withdrew and waived his claim of error. It was the same cause of action that was involved in the two forums, both were pending at the same time, and he was therefore called upon to elect in which he would proceed to final judgment. His election to proceed and take final judgment in Oklahoma was in fact a renunciation of his right to proceed further here. Again, where a party takes such action after the rendition of a judgment as would make it wrongful or fraudulent for him to seek a reversal of it, it will operate as a release of any errors in the granting of the same. To allow the plaintiff to prosecute error after the action he has taken in Oklahoma would operate as a great wrong upon the defendant. The Oklahoma judgment severs the marital relation, and effectually bars the defendant from obtaining alimony or any share of the plaintiff’s property. If the Kansas judgment is set aside, the controversy will be at an end, and the defendant practically cut out of any relief.
After a reversal, and the case is returned to the District Court, the defendant would be met with the claim that every issue in the case had been fully and finally determined. The plaintiff could then invoke the rule that the recovery of a judgment in one state is a bar to the further prosecution of the cause of action upon which the judgment was founded in a prior pending suit between the same parties in another State. North Bank v. Brown, 50 Me. 214. After a reversal, the ■plaintiff could enter a voluntary dismissal in the District Court, leaving the defendant without any of the property or any chance to obtain a portion of the same. Our view, however, is that the conduct of the plaintiff, subsequent to the commencement of this proceeding, estops him from asserting error. He is as effectually barred as if he had settled the controversy out of court, or had in some way induced the District Court to set the judgment in question aside, and had there obtained the relief granted to him in Oklahoma,
The proceeding in error will be dismissed. | [
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Tlie opinion of the court was delivered by
JOHNSTON, J.:
The findings of fact made by the court below are accepted by plaintiff, without complaint. They show that the promissory note sued on in this action, together with $40 in money, was delivered and paid by the defendant as a partial payment upon an eighty-acre farm which the plaintiff attempted to sell and convey to the defendant. The plaintiff was a married man, a resident of the state, the head of a family, and with his wife and family occupied the land as a homestead. The written instrument or paper by which the plaintiff agreed to sell the homestead for the sum of $2,600, and wherein he acknowledged as a partial payment of the purchase-price of the land, the receipt of the promissory note for $200, and the $40 in money above mentioned, and in which he agreed upon the payment of the remainder of the purchase-price, to make a good and sufficient warranty deed to the defendant, was not executed nor signed by his wife, nor did she ever consent to such sale. No deed executed by plaintiff and his wife to the land was ever delivered or tendered to the defendant, nor was he ever put in possession thereof. It appears that the only consideration which the defendant ever received for the promissory note and the $40 payment, was the contract or paper signed alone by plaintiff, agreeing to sell the homestead.
The court below held, and we think correctly, that the contract made by plaintiff was void, and that the note and money given and paid thereon by the defendant were without consideration. The constitution of the state, as well as the statute relating to exemptions, provides that the homestead shall not be alienated without the joint consent of the husband and wife, when that relation exists. In interpreting and applying the above provisions, it has been uniformly and consistently ruled by this court that so long as the premises are impressed with the homestead character, no lease, mortgage, deed, or other contract, intended to alienate the homestead or interfere with its use and occupancy as a homestead, made and ■executed alone by the husband and without the consent of the wife, is valid or effectual for any purpose whatsoever.
In an early case, Mr. Justice VALENTINE, in construing our homestead laws, stated that —
“No incumbrance or lien or interest can ever attach to or affect the homestead, except the ones specially mentioned in the constitution. . . . No alienation of the homestead by the husband alone, in whatever way it may be effected, is of any validity; nothing that he alone can do or suffer to be done can cast the slightest cloud upon the title to the homestead; it remains absolutely free from all liens and incum-brances except those mentioned in the constitution.” (Morris v. Ward, 5 Kas. 244.)
This interpretation and just ruling, so early made, has been followed in all cases in this court where the question of the non-concurrence of the wife to an alienation of the homestead has arisen. Thus it was held, that when the wife is compelled to sign a deed to the homestead, by threats of her husband, the consent required by law has not been given; that under the peculiar provisions of our homestead laws, the wife has an existing interest in the homestead, the occupation and enjoyment of which is secured to her against any act of her husband or •creditors without her consent. (Helm v. Helm, 11 Kas. 19.)
In Moore v. Reaves, 15 Kas. 150, the husband and wife occupied and resided upon a tract of land purchased from a railroad company, and which was held by them under a contract fi’om the company that it would convey the land to the purchaser upon full payment of the purchase-price. The husband, for a valuable consideration, without the knowledge or consent of his wife, assigned his claim to the land by a written indorsement made upon the back of the contract, and the court ruled that real estate so held and occupied was a homestead, and that as the assignment of the contract was without the consent of the wife, it was absolutely void.
It has also been held in a case where the husband undertook by a written agreement to lease the homestead for a term ■of five years and give possession thereof to his tenant without the consent of the wife, that whenever-the lease of a homestead, although the title thereto is held by the husband, attempts to interfere with the use or occupancy of the homestead, the assent of the wife is necessary, and lacking that, the lease is void, and the party claiming thereunder acquires no . right of possession or any estate in the homestead. (Coughlin v. Coughlin, 26 Kas. 116. See also Dollman v. Harris, 5 Kas. 597; Anderson v. Anderson, 9 id. 112; Monroe v. May, 9 id. 476; Ayres v. Probasco, 14 id. 190; Chambers v. Cox, 23 id. 393; Ott v. Sprague, 27 id. 620.)
In the light of these authorities, it is clear that the contract in this case, made by plaintiff alone, is void. The learned counsel for the plaintiff urge that the plaintiff should be permitted to make a contract agreeing to procure the consent and signature of his wife to a conveyance of the homestead. Without determining whether such a contract would be effectual or binding on the plaintiff, or would render him liable for damages in case of his failure, it will be seen by an examination of the contract in the case at bar, that the plaintiff agreed, not that he would endeavor to obtain the consent and signature of his wife, but that he would absolutely convey the homestead to the defendant by a good and sufficient warranty deed upon the payment of the remainder of the purchase-price by the defendant. If a party cannot convey the homestead by mortgage or deed, without the consent of his wife, he certainly cannot make a contract agreeing to convey that will be valid or binding without her concurrence. The contract being void, there was therefore no consideration for the note and money delivered and paid by the defendant to the plaintiff, and the district court rightly held that the plaintiff was not entitled to recover.
Another point made by the plaintiff is, that if the contract is void, the court erred in its conclusion of law that the defendant was entitled to recover the $40 voluntarily paid by him upon such void contract. In the purchase of the land, it was the duty of the defendant to ascertain and know its status, whether it was a homestead, and the kind of title which the plaintiff acting alone could give him. The defendant in his answer alleges that when this transaction occurred he was a “new-comer” in the state, and was ignorant of the laws of Kansas regarding alienation of homesteads, and that the plaintiff knew of his ignorance and contrived to cheat and defraud the defendant by leading him to believe that the contract made by plaintiff was valid and effectual for the purpose for which it was made. The court below, however, does not find that there was any deception or fraud practiced by the plaintiff, and the ignorance or mistake of law by the defendant cannot avail him. He is presumed to know the law. There was no mistake of fact upon his part. The findings made by the court below disclose that at the time the contract was made, and prior thereto, the defendant lived and boarded in plaintiff’s family. He' knew that the land he was contracting to purchase was occupied as a residence by the plaintiff and his family, and he therefore knew, or should have known, that the sale or contract to sell his farm so occupied as a homestead would be void and valueless without the consent of plaintiff’s wife. It is the duty of a party who purchases or contracts to purchase a homestead occupied by the owner and his family, to obtain the joint consent of the owner and his wife. By the findings there was no fraud in the transaction upon the part of either plaintiff or defendant; both were acquainted with all the facts relative thereto. There being no compulsion, fraud, or mistake of fact, the payment of the $40 by the defendant upon this void contract was entirely voluntary, and we think cannot be recovered. (Phillips v. Jefferson Co., 5 Kas. 412; Wabaunsee Co. v. Walker, 8 id. 431; K. P. Rly. Co. v. Comm’rs of Wyandotte Co., 16 id. 587; Sapp v. Comm’rs of Brown Co., 20 id. 245; Lamborn v. County Commissioners, 97 U. S. 185.)
We conclude that the court erred in its conclusion that defendant ought to recover $40; and the case will therefore be remanded to the court below with instructions to modify the judgment by striking out the $40 so adjudged against plaintiff, and to render a judgment in favor of defendant for costs in tbe district court. The judgment thus modified will be affirmed. .The costs in this court will be divided.
All the Justices concurring. | [
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The opinion of the court was delivered by
HortoN, C. J.:
This was an action to recover damages resulting from obstructing the flow of surface-water from its alleged natural course. The vital question in the case is whether, under the evidence, the plaintiff below was entitled to recover damages. We think not. The common law, as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people, is in force in this state in aid of the general statutes. Therefore the doctrine of the common law, with respect to the obstruction and flow of mere surface-water, prevails as a general rule. Under this rule, surface-water is within the control of the owner of any land upon which it falls, or over which it flows; he may use all that comes upon his own, or decline to receive any that falls on his neighbor’s land. (Railroad Company v. Hammer, 22 Kas. 763; Gibbs v. Williams, 25 id. 214.)
“The simple fact that the owner of one tract of land raises an embankment upon it which prevents the surface-water falling and running upon the land of an adjoining owner from running off said land, and causes it to accumulate thereon to its damage, gives to the latter no cause of action against the former.” (Railroad Co. v. Hammer, supra.)
In Palmer v. Waddell, 22 Kas. 352, the general rule applicable to surface-water was held not to apply in an exceptional case. This exception was favorably referred to in Bowlsby v. Speer, 2 Vroom, 351, and Hoyt v. City of Hudson, 27 Wis. 656. The doctrine of the common law with respect to the obstruction and flow of mere surface-water is not only in force in England, but in Connecticut, Indiana, Massachusetts, Missouri, New Jersey, New Hampshire, New York, Vermont, and Wisconsin. In a late case decided in Missouri, it was said:
“We feel constrained to recognize the common-law doctrine on this subject, so often and repeatedly approved by this court without division in all its earlier and later decisions, as still the law in this state. The rule of the common law as expounded in the numerous decisions quoted above, we think, after all, best promotes and conserves the varied and important interests of both the public and private individuals incident to and growing out of this question. It permits and encourages public and private improvements, and at the same time restrains those engaged in such enterprises from unnecessarily or carelessly injuring another. ... A strict and literal application of the doctrine of the civil law would, we think, in many places and in large districts of country, materially retard, if not utterly destroy, many useful and profitable improvements, pursuits and enterprises besides railroading.” (Abbott v. Railroad Co., S. C. of Mo., Oct. 1884, MS. See also Lessard v. Stram, 20 Cent. L. J. 231; Barkley v. Wilcox, 86 N. Y. 140—24 Albany L. J. 453, 454.)
The rule of the civil law seems to be in force in Pennsylvania, Iowa, Illinois, California, Louisiana, and is referred to with approval in Ohio. In Pennsylvania, however, the civil law does not seem to apply to house lots in towns and cities. (Bentz v. Armstrong, 8 Watts & S. 40.) And in Livingston v. McDonald, 21 Iowa, 160, the court, in an opinion by Dillon, • J., after stating the civil-law doctrine, say that —
“It may be doubted whether it will be adopted by the common-law courts of this country so far as to 'preclude the lower ■owner from malting in good faith improvements which would have the effect to prevent the water of the upper estate from flowing or passing away.”
We do not think that the evidence before the trial court brings the case within the exception noted in Palmer v. Waddell, supra. It is apparent to us that the facts in the case of Gibbs v. Williams, 25 Kas. 215, are more nearly similar to those testified to on the trial, than disclosed in the record of Palmer v. Waddell. Plaintiff below owned and occupied lot 10 in Williams’s addition to Emporia, consisting of about an .acre of land. He had lived upon it with his family fifteen years. Upon the lot he had a small house, stable, chicken-pen, hog-pen, and cave; also, apple trees, cherry trees, peach trees pear trees, grape vines, etc. There was no hilly region or high bluffs around the lot. The land near by was rolling prairie. 'Through the lot in question there was a depression through which surface-water from adjacent land fouud its wa}r. Some •of the witnesses called the depression a “draw,” others a “ravine,” and again others a “hollow — a drain.” The jury found that there was no gorge or ravine in the plaintiff’s land, and while in one finding they said that “ there was a well-defined water channel cut and worn by the flow of water,” this is fully explained in another finding, in which they said “that the channel was through the entire premises about thirty feet wide, with no abrupt banks,” and the “ watercourse no more than is to be seen on most of the farms in Kansas.” There was no living or running water through the depression. The water flowing through or over the lot was a temporary accumulation of rainfalls, or caused from melting snow. The depression testified to by some as a channel or watercourse, was simply a passage-way for surface-water. Where the land was not actually cultivated, grass aud weeds, in summer, grew in the so called watercourse. Doubtless, any one looking might at times perceive that thei’e was a passage-way over the lot for surface-water. The amount of land drained over the plaintiff’s lot was between thirty-five and forty acres only, and there was no' such watercourse, with banks and channels, as testified to in Palmer v. Waddell. Plaintiff upon the trial.testified concerning the flow of water over his land, among other things, as follows:
“Q,. You can state whether any water flows on the land, or not. A. I have seen water on it.
“Q,. "Where does that come from? A. It comes from Mr. McMillan’s; it does,, when we have a pretty heavy shower of rain; it comes in the slough, down right through my house lot.
“Q,. Where does it go? A. It goes right out of my lot, down through that culvert; takes a straight shoot through that culvert right by my house, down the ravine.
“Q,. Did you ever notice any channel above your place, between you and McMillan’s where this water may have run? A. Well, not particularly. There is a little channel at the corner of my lot where the water emptied right into the drain from Mr. McMillan’s, run down into any house lot, and some place, about three or four feet long, may be about a foot wide; just a small hole where the water jumps off, and if the ground is soft it makes a pretty good hole there; if the ground is solid it is not so apt to wash out.
“Q,. Well, where the water runs across you, the ground is not so high as it is at the east and west side? A. The lowest part is in my lot.
“Q,. There is where the water goes?- A. There is where the water goes through, and that is the lowest part; the water runs on the lowest part.
“Q,. You raised corn on your lot this year, didn’t you? A. No, sir, I planted some and the water washed it up; I planted corn and potatoes.
“Q. Would the water wash it up that came down from McMillan’s, when it rained? A. Yes, sir.
“Q. The railroad water did not wash it up? A. No, the railroad water backed up on it before it was washed out by any water at all.
“Q,. Are there any springs on your place? A. No, sir, there are no springs.
“Q,. Are there springs on any of Williams’s addition that you know of? A. Not that I know of.
“Q,. There are no hills on it? A. No, sir, there are no hills at all.
“Q,. No bluffs on it? A. No, sir, none at all.
“Q,. What is there that you call a ravine? A. What I call a ravine is a place that water always runs in when it is high. You know water don’t run on level ground — where it is dead level. What I call a ravine is where in heavy rains it has a fall, a slant, to take the water off to run somewhere. If it ain’t, it won’t run.
“ Q,. But there is no place where the water has dug a hole out, is there? A. I saw just one little place above me, and that is all. Two places, I believe.
“Q. You dug a ditch north of your stable? A. I dug a ditch on my acre; yes, sir.
“Q,. How long ago did you dig that? A. I guess I dug it about four years ago.
“Q,. That is the only ditch on your place? A. That is the ditch that is on my place.”
There was other evidence in the case more favorable to plaintiff than this testimony, but we quote this much to show that the so-called well-defined channel, with its deep banks, alleged to have been upon the premises of plaintiff, was not easily seen or described by him.
To sustain the instruction of the court below concerning the obstruction and flow of mere surface-water, and to permit the plaintiff to recover upon the evidence in the record, would extend the case of Palmer v. Waddell. That is an extreme case, and is limited to surface-water from hilly regions or high bluffs, draining considerable tracts of land through a gorge or ravine, for such a flow as to make a definite or natural channel. The cases of Gibbs v. Williams, supra, and Railroad Co. v. Hammer, supra, decided subsequently to Palmer v. Waddell, show that the terms of that decision were never intended to be broadened.
This disposes of the case, because the demurrer to the evi dence should have been sustained. The judgment of 'the district court will be reversed, and the cause 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
HoetON, C. J.:
It is alleged on the part of plaintiff in error, defendant below, that the only issuable fact in this case under the pleadings regarding the indebtedness sued for up to September 1, 1882, was, had there been an accounting between the parties, an agreement as to the amount due, the payment of such amount, and the execution thereupon of a receipt in full? Upon this theory, it is urged that the defendant in error, plaintiff below, was not entitled to recover upon the account, and that the admission of any evidence tending to show errors or mistakes in the books of account was incompetent and irrelevant.
As the defendant’s answer contained a general denial, it was incumbent upon the plaintiff, first, to prove the indebtedness alleged in his petition, and to do this it was proper for him not only to show that the goods and merchandise sued for were ordered and delivered to the defendant, but to explain the charges in the original books of account kept by the Western Hardware Company.
The burden of the proof was upon the defendant below to establish the settlement of the account between himself and the hardware company. There was evidence for and against. The court found against the defendant, and we think there was evidence sufficient to sustain the finding. It is urged, however, that the evidence adduced before the trial court-showed conclusively the account between the parties had been stated; that the balance found due upon settlement had been paid, and that a receipt had been given in full. To support this, it is asserted that there was a dispute between the hardware company and defendant as to the amount due up to September 1, 1882; that about the last of August or the first of September, 1882, the company sent Mr. Schlicter, its traveling salesman, to defendant for the purpose of checking up and settling the account; that it was then agreed between the salesman and defendant that the account was incorrect j that defendant told Schlicter he was willing to pay $639.22 as a •settlement of the account; that Schlicter left without making a settlement, admitting that the account was incorrect; that defendant then sent to the hardware company $100, and in .a few days thereafter received from the company the following statement:
“Atchison, Kas., Sept. 18, 1882.
.Messes. E. M. Clark & Co., McPherson, ICas.,
In account with Western Hardware Go., 516 and 518 Commercial St.
Sept. 5 — Mdse.Oct. 5. §11 50
“ 5— “ Nov. 5. 390 17
“ 8— “ “ 8. 18 87
“ 16— “ . “ 16. 13 10
Bal. statement ren’d.§433 64
539 22
§972 86
“FRIEND Clark: We are fearful hard up. I send you two notes, which you can fill up for amount at 60 and 90, if you wish, or take off 20 per cent, and remit if you can. Do this at once. Yours, Marbourg.”
That defendant at once returned his note for $539.22, inclosed in the following letter:
“McPherson, Kas., Sept. 19, 1882.
“ Western Hardware Company, Atchison, Kas. — Gents : According to request, we send note for $539.22, to bal. act. in full Sept. 1st. Please acknowledge the same, and oblige, Yours truly, R. M. Clark & Co.”
And that on Sept. 22, 1882, the company returned the following answer thereto:
“Messrs. JR. M. Clark & Co., McPherson, Kas. — Gents’: Yours of the 19th received, with note for $539.22, and we place same to your act. in full to Sept. 1, ’82. Please accept our thanks. Yours truly,
Western Hdw. Co.
Ringo.”
The trial court was the judge of the credibility of the witnesses and the weight of the evidence; and with the finding of the court against the defendant, we may assume that the evidence did not show that Schlicter visited defendant to check up and settle the account about the last of August or the first ■of September. The evidence of plaintiff below was that Schlicter left the employ of the hardware company August 1, 1882. His conversation with defendant must have been prior to that date, if he had anything to do with examining or settling the account while in the employ of that company. It appears, however, that the defendant ordered and received goods from the company between August 1, 1882, and September 1, 1882. Therefore there was no checking up or settling of the account of that month. This also shows that there was no examination or settlement of the account between Schlicter and defendant up to September 1, 1882. Again, after the erroneous charge against the defendant of $338.12 and the erroneous credits of $933.22 and $51 in favor of defendant were corrected upon the account books of the company, there was no dispute as to the balance of the account up to September 1, 1882. The account subsequent to that •date was admitted in the answer to be correct. All of this tends to show that the defendant did not understand he was •owing only $639.22 the last of August, 1882, and clearly shows that there was no account stated, settled, adjusted or •compromised between the defendant and Schlicter in August, 1882, or subsequently. We do not consider the evidence, that a person who had been an agent of the company on or .about the 25th of September, 1882, informed the defendant “that the account was settled up to September 1, 1882, and that the books showed it,” of any importance, because prior to that time the company had made an assignment, and such person was therefore not at said time the agent or representative of the company. Moreover, the books of account of the company show that this statement was untrue.
An account stated is an account which has been examined and accepted by the parties.
“In stating an account, two things are necessary: First, that there be a mutual examination of the claims of each other by the parties; and second, that there be a mutual agreement between them as to the correctness of the allowance and dis-allowance of the respective claims and of the balance, as it is .struck upon the final adjustment of the whole account and de mands on both sides. The minds of the parties must meet upon the allowance of each item or claim allowed, and upon the disallowance of each item or claim rejected. They must mutually concur upon the final adjustment, and nothing short of this in substance will fix and adjust their respective demands as an account stated; but in proving an account stated, it is not necessary to show an express examination of the respective demands or claims of the parties, or an express agreement to the final adjustment. All this may be implied from circumstances. If the evidence shows, however, that either of the parties did not understand that there had been any final adjustment of their respective demands between them, the courts are not to decree an adjustment between them contrary to their own understanding in the matter.” (Lockwood v. Thorne, 18 N. Y. 285 Williams v. Glenny, 16 id. 389; Reinhardt v. Hines, 51 Miss. 344; 6 Wait’s Actions and Defenses, 424.)
In the case before us, there was no mutual examination of the account of the hardware company up to September 1, 1882, by the company and the defendant, or by the plaintiff and defendant, other than that when the erroneous charge and credits were discovered they were corrected, thus leaving the parties to understand the actual amount due from the defendant. In transmitting to the defendant, on September 18, 1882, a statement of his account, the company erroneously made-the balance prior to September 5,1882, $539.22; and on September 22, 1882, the bookkeeper of the company by mistake acknowledged the receipt of defendant’s note of $539.22 in full of the account to September 1, 1882. Subsequently the defendant was informed of the actual condition of his account, and while the letters of the company raise an inference that-there had been an account stated and settled between the parties, the evidence in the case clearly rebuts such inference, and shows that, under the circumstances of the case, there was no account stated between the parties, and that the account sued on was due at the commencement of this action. It cannot. be claimed that the balance rendered September 18,1882, was correct, and if the evidence of plaintiff be accepted, the defendant must have known at the time he transmitted his note-of September 19, 1882, that his account up to September 1,. 1882, was largely in excess of $539.22. It is the rule that an account rendered is only prima facie evidence against the party making it, but does not estop him from showing the truth; and an account rendered, therefore, may be impeached or corrected within a reasonable time. Should the balance claimed upon an account be actually paid, the account would still be ■open to correction in the same mauner, and the party who has given a receipt admitting payment has the right always to show by oral evidence that it was given by mistake, and that it was untrue; and he has the right to show how and why he gave the receipt. (Bridge Co. v. Murphy, 13 Kas. 35, 40; Stout v. Hyatt, 13 id. 233, 242, 243; Champion v. Joslyn, 44 N. Y. 653; Spangler v. Springer, 22 Pa. St. 454.)
Passing to the other branch of the case, we find that the answer alleged that as to the purchases made subsequent to September 1,1882, by the defendant, of the amount of $476.36, the same had not been paid, because on different days between October 11th and 17th, 1882, the defendant was garnished by various parties having actions pending against the hardware company, and required to answer in the district court of Atchi-son county in respect to such indebtedness; that he answered in all said cases setting forth he was indebted to the company in the sum of $476.36, and that he had not been discharged as such garnishee. The answer was insufficient. It did not state the amount of the claims of any of said parties against the company, or show whether the whole or what portion of the debt had been attached, or that any judgment had been rendered against the defendant therein, or that any order had ever been made upon his answer as garnishee. ( Drake on Attachment, § 705; Crawford v. Clute, 7 Ala. 157.) The defect in the answer was not cured by the reply, as that simply stated that the cases mentioned in the answer had been finally disposed of, and the defendant released from all liability. We cannot gather from either the answer or reply what portion, if any, of the debt was attached. In addition to this, the record shows that the plaintiff has become the sole owner of all the claims in which the attachments were issued against tlie hardware company, and also the owner of all the assets of the company; and that the defendant can never be required to pay anything by reason of the garnishee processes having issued.
The judgment of the district court will be affirmed. .
All the Justices concurring. | [
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The opinion of the court was delivered by
HortoN, C. J.:
This was an action for the dissolution of a partnership and for an accounting. The evidence conduced to show that prior to March 12, 1875, there existed at Iola, in this state, a firm composed of W. E. Davis, Geo. S. Davis, and Elias Bruner, engaged in the milling business under the name of W. E. Davis & Co.; that the firm were then the owners of a grist and saw mill and certain personal property and tracts of land, all used for partnership purposes and in connection with the mill; that on March 12,1875, it was verbally agreed between the members of the firm that the plaintiff should be taken into the partnership as a member thereof, on the following terms: All the property of the partnership was valued at $12,000; each partner was to have an equal share therein; the plaintiff was to pay $3,000, but it was understood “that he was to have his share in the partnership without interest on this sum until such a time as the proceeds of the mill or business made it;” that it was further agreed among all the members that the partnership should be consummated by an entry in the journal and ledger books, setting forth that the parties had associated themselves together as partners, and the amounts invested by each member were to be shown by his credits on the ledger; that the entries upon the journal and ledger were made in accordance with this agreement; that on March 13,1875, the plaintiff was permitted to go in possession jointly with the other parties; that all the parties acted on the agreement until about the middle of November, 1882; that the partnership, after March 13, 1875, continued to do business under the firm-name of W. E. Davis & Co.; that it was the particular duty of plaintiff to keep the books of the firm, and look after such other business as he could; that at the formation of the new partnership on March 12,1875, the grist mill was somewhat dilapidated and was not making good flour; that the saw mill was very old and pretty well worn out; that W. E. Davis and G. S. Davis were brothers; that the wife of plaintiff was the sister of W. E. and G. S. Davis, and also the sister of the wife of Elias Bruner; that the plaintiff kept the books and also collected for the firm, borrowed money, brought suits against different parties, and did almost everything that was to be done to further the interests of the firm; that the defendants allowed him to hold himself out to the public as a partner, to sign the firm-name to negotiable paper, subscriptions to public enterprises, and official bonds, to bring suits and defend suits as a partner; that land was condemned for a mill-dam ; that plaintiff paid the money therefor from the proceeds of the business; that a dam was constructed across the Neosho river, where the mill is now located; that the old mill was taken down and moved to the new location in the spring of 1880; that a new mill was made out of it; that is, the old mill was rebuilt and considerable new machinery put in it; that the expense of doing this was over $4,000; that about $1,500 was borrowed; that the balance of the money was paid from the proceeds of the mill; that the defendants accepted $110 they owed him prior to March 12, 1875, as part payment of the $3,000, and used it in the partnership business; that the plaintiff also paid between $50 and $60 upon the purchase-price of his interest in the firm after he became a member thereof; that during the partnership he drew out $1,900; that about the middle of November, 1882, plaintiff was excluded by the defendants, without any good reason or excuse, from further participation in the partnership, and was forbidden by the other partners from exercising any rights or control over the partnership business or property; that at the time of such exclusion the property of the firm was worth about $30,000, having increased from $12,000 in 1875 to $30,000 in 1882.
After the introduction of all the evidence on the part of the plaintiff, that the court would admit, the defendants interposed, and filed a demurrer thereto, upon the ground that no ■cause of action was proved. The court sustained the demurrer, and plaintiff excepted. This is the important ruling complained of.
To sustain this ruling, the defendants contend that the contract of March 12, 1875, being for an interest in real estate, is, as to such real estate, void, under the statute of frauds, and that, being void as to the real estate, it is also void as to the personal property and the right to become a partner, which, as defendants allege, were parts of an entire and indivisible ■contract. The proposition is conceded by the defendants, that where real estate is purchased with partnership funds, for partnership purposes, after the partnership has been formed, such real estate is to be treated as part of the partnership property, and as a consequence personal estate. It is also well settled “ that parol testimony is admissible to prove a resulting trust in relation to real estate, and that land purchased in the name of one partner, for the use and benefit of the firm, raises a resulting trust which will be enforced.” (Story’s Eq. Jur., §§ 1206-7; Scruggs v. Russell, 1 McCahon, [U. S. Ct. Kas.,] 39.) These principles are applicable to this case, and decisive against the defendants. When the plaintiff was taken into the partnership of W. E. Davis & Co., on March 12, 1875, as the firm was then in existence, in the possession of real estate, purchased for partnership purposes and then appropriated to those purposes, such real estate was partnership property, and the plaintiff, by acquiring an interest in the partnership by verbal contract, and thereafter having acted under the contract as one of the partners, with the consent of all the members, is not to be deprived of his interest in the partnership, either as to the personal property or real estate, on account of the statute of frauds. The cases establish that a partnership in any branch of trade or business may be shown by parol as an existing fact, and then whatever real estate is held for the purposes of such business is regarded as an incident thereto, and the law will imply a trust in favor of the partnership, however the lands be held in law. For an illustration, if a mercantile firm carrying on the business of buying and selling goods, and, as an incident to the business, owning and having in possession the building in which the business is transacted, takes into the partnership another person, who purchases an interest in the partnership, and as a partner is let in possession of the partnership property, and all the parties act on the agreement, such person is not to be deprived of his right in the real estate held by the firm at the time he became a member thereof, because his agreement with the other partners was not in writing. If the partnership be proved, that will suffice to establish a partnership trust in the land intended and treated by all the partners as partnership property, however the land be held, and this will not be incompatible with the conditions of the statute of frauds. (Scruggs v. Russell, supra; 1 Lindley on Partnership, 87—90; Bird v. Morrison, 12 Wis. 138; Whaling Company v. Borden, 10 Cush. 458; Browne on Frauds, §§ 259 to 263.)
We think it is immaterial whether the real estate in this case was bought with partnership funds for partnership purposes, after the formation of the partnership, or whether a part of the real estate was put into the firm as partnership property at the formation of the new firm on March 12, 1875, if the parties have acted on the agreement and become partners. In such case, the statute of frauds ceases to be applicable. (Smith v. Tarleton, 2 Barb. Ch. 336; Bissell v. Harrington, 18 Hun, 81.)
It is further claimed on the part of the defendants, that the plaintiff was not to acquire any interest in the partnership until he paid the $3,000 agreed upon; that this was a condition precedent, and that as the plaintiff failed to pay the same, he never became a partner or had any interest in the partnership property as a partner. It is a sufficient answer to all this, that the evidence is the other v7ay; therefore, we need make no further comment upon this claim. (Christie v. Barnes, just decided.)
As the court below tried the case upon an entirely erroneous theory, it is unnecessary to refer to the various alleged errors concerning the rejection of competent evidence. We may say, however, that the rules governing the admission of evidence were frequently and flagrantly violated. We cite one instance: In November, 1881, there had been an inventory of the property of the partnership taken, and an adjustment made between the partners of the accounts. After the inventory was completed, it was placed in the safe of the mill, and remained there until the middle of October, 1882. This inventory was competent and important evidence at the trial. The plaintiff issued a subpena duces tecum under the provisions of- § 325 of the code, to W. E. Davis, one of the defendants, directing him to aj)pear and testify as a witness upon the trial, and requiring him as such witness to bring with him the inventory. The witness appeared, and was duly sworn. In accordance with the subpena, he brought the inventory into court, and had it in his hands at the time he was upon the witness stand. He was then asked to produce it. The defendants objected, and the court sustained the objection, and in sustaining the objection, said:
“I can’t see for the life of me that the defendant is bound under the law to produce that instrument as evidence. There are provisions of the statute which perhaps may give the plaintiff such an advantage or such a right, but there is nothing to indicate that the plaintiff has proceeded under that section of the statute, as the subpena has been issued under § 325.”
Exactly what the court meant by these remarks, it is difficult to understand, but if § 368 of the code was intended to be referred to as prescribing the method to obtain an inspection of the written memorandum, that section does not justify the action of the court. It is expressly provided therein as follows :
“ This section is not to be construed to prevent a party from compelling another to produce any book, paper or document when he is examined as a witness.”
Therefore the ruling of the court in refusing to make the witness produce the memorandum in his possession was palpably wrong, and we think the counsel for plaintiff are not far out of the way in saying, “The trial court erred almost from one end to the other.” It is not possible that upon another trial these errors will be repeated.
The motion to dismiss cannot be sustained, for, although the suggestions of amendments are not inserted in the body of the case in their appropriate places, they are attached to and made a part of the case and are placed in connection with the case. The practice, however, of thus attaching suggestions of amendments is not to be commended. It gives this court increased labor, and frequently renders an intelligible examination of the case almost impossible. (Dowell v. Williams, just decided.)
The judgment of the district court will be reversed, and the cause 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
JOHNSTON, J:
This action was brought in the district court of Osborne county by Frederick Garanflo as plaintiff, to enjoin Orrin Cooley, the defendant, from cutting, harvesting, or in any manner interfering with a growing crop upon a tract of land before that time conveyed by the plaintiff to the defendant. After issue was first joined between the parties and the trial had been commenced, objection was made by the defendant to the introduction of certain testimony offered by the plaintiff. The objection- being sustained, the plaintiff asked and obtained leave to amend his petition by interlineation. The defendant then moved the court to require the plaintiff to make his petition more definite and certain, which motion being sustained, the plaintiff upon application was granted leave to file an amended petition beyond the term, and the case was continued to the following term. An amended petition was accordingly filed, whereupon .the defendant demurred thereto, alleging that the amended petition did not state a cause of action. The demurrer was sustained by the court, and the plaintiff, alleging error, brings the case to this court for review. • . ■
The action of the court in sustaining the objection- to testimony, and the other rulings made before the filing of the amended petition, were excepted to by the plaintiff, and are assigned as error. Whether or not the court.erred in these rulings, we cannot now inquire. In asking and obtaining leave to file an amended petition, plaintiff must be held to have waived whatever of irregularity or error there may have been prior to filing the same. It was substituted for the first petition, and to all intents and purposes became the original pleading fin the case.
The only question, then, which is before us, is the sufficiency of the amended petition. Prom the statements therein we learn that Garanflo was the owner and in possession of a quarter-section of farming land, upon which there was a growing crop of wheat and rye; that Cooley likewise owned a farm in that neighborhood, and that on or about the 24th of January, 1883, a verbal contract was made between the plaintiff and the defendant, by which it was agreed to exchange farms, Garanflo reserving the growing crop which was upon his. Afterward the exchange was made, and the plaintiff conveyed his farm to the defendant by a warranty deed, and gave possession of the same, but made no exception or reservation of the growing crop. Notwithstanding this fact, Garanflo claimed that he was still the owner of the growing crop. It'is alleged that the defendant is insolvent; that he claims to own the growing crop, and is threatening to harvest and convert it to his own ■ use, and the plaintiff therefore asks that he be enjoined from so doing.
The main point raised by the demurrer, and the one chiefly argued by counsel, is, whether the growing crop upon the plaintiff’s farm passed by the conveyance to the defendant, there being no written agreement of reservation, nor any exception of the same from the plaintiff’s deed of conveyance. The verbal agreement respecting the reservation of the crop, it will be observed, was anterior in point of time to the execution and delivery of the deed from plaintiff to the defendant. It is claimed by plaintiff’s counsel that the growing crop is personalty, and of such a character as not to pass with the grant of the land, and that no reservation in writing or exception from the deed is necessary to prevent its passing as a part of the realty to the grantee. While there is some conflict of authority upon this' question, it is no longer an open one in this state. It has been decided that “ where a deed is executed for real estate, and no reservation of growing crops is contained in the deed, the growing crops will become the property of the grantee mentioned in the deed.” (Chapman v. Veach, 32 Kas. 167. See also Smith v. Hague, 25 Kas. 346; Babcock v. Dieter, 30 id. 172; Tiedeman on Eeal Property, §§2, 799.)
The demurrer was therefore rightfully sustained, and 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 Riley county, by George W. Diehl against the Union Pacific Railway Company, for the recovery of damages sustained by him while traveling as a passenger on one of the defendant’s trains. The damages were alleged to have been caused by the negligent conduct of the defendant in moving its train after it had been stopped at Brookville, on the evening of September 14, 1881, to enable the passengers to leave the. train to procure supper. The particular negligence originally specified in the plaintiff’s petition was the failure on the part of the defendant to give any signal or warning that the train was about to be moved; and after the trial of the case, and after a verdict and special findings had been rendered by the jury, in favor of the plaintiff and against the defendant, the plaintiff, with leave of the court, amended his petition so as to specify another particular ground of negligence, to wit, the moving of the train “ without giving a sufficient time for passengers on said train who so desired to alight from said train.” Judgment was rendered in the court below in accordance with the verdict and special findings, in favor of the plaintiff and against the defendant for the sum of $8,000.
The plaintiff in error, defendant below, claims that the action should have been removed on its application from the district court of Riley county to the United States circuit court for trial. The question of removal in such cases, how ever, has, so far as this court is concerned, already been settled adversely to the views of the plaintiff in error by the decision in the case of The Union Pacific Rly. Co. v. Dyche, 31 Kas. 120. See also Myers v. U. P. Rly. Co., 3 McCrary, 578. The other questions presented by plaintiff in error, defendant below, are founded solely upon the theory that the general verdict of the jury and many of their special findings are not sustained by sufficient evidence.
It appears that the plaintiff below, defendant in error, with his wife and two small children, entered a sleeping-car, forming a part of one of the defendant's trains, at Bunker Hill, in Bussell county, for the purpose that all might be transported as passengers on the defendant's railway to Topeka, Kansas. The wife and children rode in the sleeping-car to Brookville. The plaintiff, in the meantime, rode in several cars on that train. There was considerable evidence introduced tending to show that the plaintiff was intoxicated, and some that he was not. Probably he was intoxicated; but the jury found that he was not. When the train arrived at Brookville, it is doubtful in what car the plaintiff was riding; but the jury found, upon the conflicting evidence introduced upon the subject, that he was riding in the sleeping-car. The train stopped at Brook-ville, and it was announced that the train would stop at that place twenty minutes to enable the passengers to procure their suppers. A preponderance of the evidence clearly tends to show that the train remained stationary at that place for a sufficient length of time to enable the passengers who desired to do so, to remove from the train. There was some evidence, however, tending to show otherwise; and the jury found otherwise. A preponderance of the evidence also tends to show, that prior to the starting of the train in motion, after it had stopped, a bell was rung, giving the proper signal and warning that the train was about to be moved. There was other evidence, however, tending to show the reverse; and the jury found that no such signal or warning was given. There was also evidence, seemingly a preponderance, tending to show that the plaintiff was standing on the platform of one of the cars while the train was moving, and that while the train was so moving he attempted to step from such platform upon the depot platform, when he fell and received the injuries complained of. There was evidence, however, tending to show that the train did not move until about the time plaintiff was stepping from the car platform to the depot platform. The-jury, by their general verdict, found in favor of the plaintiff, and therefore found that the train was not moving while the plaintiff was standing on the car platform, and did not move until the time when he attempted to step therefrom to the depot platform. The evidence was conflicting as to whether the train started to move with a sudden jerk, or not. A portion of the evidence tended to show that the train started with a sudden jerk; but probably a preponderance tended to show that the start was not sudden, but was easy and gradual. There was also evidence tending to show that the train, equipped as this train was, and in the condition in which this train with its engine was, could not have been moved backward or forward with a sudden jerk. The jury, however, found in favor of the plaintiff.
Upon all the foregoing questions the evidence was conflicting. It was conflicting as to whether the plaintiff was intoxicated, or not; as to whether he was in the sleeping-car, or not, at the time when the train arrived at Brookville; as to whether the train remained stationary, or not, after it stopped at Brook-ville, for a sufficient length of time to enable the passengers to remove therefrom; as to whether the train started to move without any warning or signal being given for its removal; as to whether it started with a sudden jerk, or not; as to whether the train was in motion before the plaintiff attempted to get off the same, or not; and as to whether there was a stool on the depot platform, or not, on which the plaintiff stepped when he attempted to step from the train.
We think the verdict of the jury in the present case should have been set aside, and a new trial granted. It is the duty of a trial court, whenever the verdict is clearly against the weight or preponderance of the evidence, to set it aside and grant a new trial. (Williams v. Townsend, 15 Kas. 564, 570, 571; K. P. Rly. Co. v. Kunkel, 17 id. 172; Brown v. A. T. & S. F. Rld. Co., 31 id. 2.) The supreme court however, has no such power. Where the evidence is all in parol, and where there is some evidence sustaining every fact necessarily included in the verdict — not a bare scintilla, but enough evidence, if not contradicted, to prove every such fact — and where the trial court approves the verdict by refusing to set it aside, and by rendering a judgment thereon, the supreme court cannot disturb it, although a preponderance of the evidence may seem to be against the verdict. (See the above cases, and K. P. Rly. Co. v. Richardson, 25 Kas. 391, which is especially applicable to this case; also, Seip v. Patrie, 19 Kas. 13; Beal v. Codding, 32 id. 107.) It is perhaps unfortunate in many cases that the supreme court has no greater power in reviewing and in setting aside verdicts; for, because of such inability on the part of the supreme court, injustice is «sometimes permitted to be done.
While we think that, upon all the evidence in the case, the verdict of the jury should have been in favor of the defendant and against the plaintiff, yet sufficient evidence may be selected from the evidence introduced to make out a pretty strong case in favor of the plaintiff and against the defendant. Evidence may be selected that will show that the plaintiff was not intoxicated at the time when the train arrived at Brookville, but was then in a sober and proper condition; that he was with his wife and children in the sleeping-car when the train stopped ; that it was announced by the defendant’s employés that the train would remain at that place twenty minutes to enable passengers to procure supper; that immediately after the train stopped, the plaintiff, with his wife and two children, started to leave the the car; that he took one of the children in his arms, and a satchel in his hand, and his wife took the other child in her arms, and both started to leave the car; that when he arrived at the platform of the car he put the child down on such platform; that the train was not then in motion; that he then attempted to step from the car platform upon a stool on the depot platform, but that the train then started backward with a sudden jerk, without any signal or warning having been given that it was about to be moved, and that that car or the next car struck him, and the stool tumbled over, causing him to fall, and he fell down between the car and the depot platform, and one of his legs was caught under the car and so injured as to require amputation. If these things were all true, we would think that the plaintiff was entitled to recover • and for the purposes of this case we must now consider them as true.
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
Wertz, J.:
This appeal stems from an action to enjoin a tax levy and a bond issue for the purchase of a site and the erection of a long-term care and convalescent county hospital thereon. The plaintiffs challenge not only the validity of the ballot used in the election but also the validity of the declared results of the election.
On November 6, 1962, at a regular general election, the board of county commissioners of Jewell county submitted to the qualified electors of the county the question of a two-mill levy for the purchase of a site or sites, and the erection of a long-term care and convalescent county hospital thereon in the city of Mankato. The special ballot was submitted pursuant to G. S. 1961 Supp., 19-1801, and in accordance with the provisions of G. S. 1949, 19-1802. According to the official election canvass, the proposition for the levy carried by two votes.
Plaintiffs filed their petition and, as amended, challenged the validity of the election on numerous grounds, the determinative ones being (1) the wording of the ballot was ambiguous, misleading, and not in compliance with the statute, and (2) the votes cast by Clarence L. and Lillian Gates and J. F. Riley were illegal, and improperly counted. From the judgment entered in defendants’ favor, plaintiffs appeal.
This is the second chapter in this case, and for further facts see Willmeth v. Harris, 193 Kan. 111, 392 P. 2d 101.
As to plaintiffs’ first contention that the wording of the ballot fails to comply with G. S. 1961 Supp., 19-1801 et seq., the pertinent part of the ballot reads:
“Shall the following be adopted?
Shall Jewell County, Kansas, levy a tax of not to exceed two (2) mills on the dollar for any one year, for the purchase of a site or sites, and the erection thereon of a Long Term Care and Convalescent County Hospital, and for the support of the same, in the City of Mankato, Jewell County, Kansas, at a cost of not to exceed $440,000.00, under the authority of Sections 19-1801 et seq. of the 1961 Supplement to the General Statutes of Kansas for 1949, $220,000.00 of said amount to be obtained through a grant from a federal agency and-or donations from persons, firms, organizations, corporations or societies?
“To vote in favor of the levy, make a cross ‘x’ mark in the square after the words ‘fob the levy.’
“To vote against the levy, make a cross ‘X’ mark in the square after the words ‘against the levy.’
“fob the levy □
“against the levy □”
The applicable portions of section 19-1801 controlling in thé instant case provide for the establishment and maintenance of a public hospital in certain counties, and whenever the board of county commissioners is presented with a valid petition which sets forth the location, asks that a tax not exceeding two mills on the dollar per year be levied for the establishment and maintenance of a public hospital at a place in the county named therein, and states the maximum amount of money to be expended in purchasing or building said hospital, such board of commissioners shall submit the question to the qualified electors of the county at the next general election. G. S. 1949, 19-1802, provides that the board of commissioners shall submit to the qualified electors the question whether there shall be levied upon the assessed property of the county a tax of__mills on the dollar for the purchase of real estate for hospital purposes, for the construction of hospital buildings and for maintenance of the same; that the ballots shall be printed with a statement substantially as follows: “ ‘For a_mill tax for a public hospital and for maintenance of same. Yes. □ No.
The mentioned statutes contemplate that when a special proposition is submitted to the qualified electors for a vote, the recital on the ballot shall clearly state the substance of the proposition. (See Board of Education v. Powers, 142 Kan. 664, 51 P. 2d 421.)
In the instant case the electors were informed the hospital’s total cost would not exceed $440,000 and that $220,000 of this amount was to be obtained from a federal agency or by donations. In view of G. S. 1949, 19-1812 and 19-1815a, which permit the acceptance of donations from individuals or organizations and aid from the United States Government or any agency thereof, we are unable to see how the electors could be misled about the recited proposition. There was nothing misleading in this statement, for the electors knew at all times what the total cost of the proposed hospital would be and that the bond issue under consideration was for $220,000.
The plaintiffs, in support of their contention, direct our attention to the phrase “Long Term Care and Convalescent County Hospital” appearing on the ballot. They contend the expression is misleading and means to most people a nursing home, an old folks home, or a home for domiciliary care. The plaintiffs’ argument loses its force when we consider the phrase is followed by the words “County Hospital.” “Long Term Care and Convalescent” is descriptive only, in that it amplifies the type of service to be rendered to hospital patients and, therefore, is not indicative of an old folks home or a home for domiciliary care.
We have been unable to find, and plaintiffs have failed to cite, any authority to sustain their contention that this descriptive phrase means domiciliary care in the nature of a home for the aged. The phrase is mere surplusage at most, and it cannot be said the voters were misled or deceived by it.
Plaintiffs next contend the trial court erred in finding the absentee ballots of Clarence and Lillian Gates were legally cast and should be counted.
It is conceded the Gateses made the necessary stautory affidavits and legally cast their absentee ballots in good faith. Plaintiffs’ contention is such ballots are illegal and should not be counted inasmuch as the Gateses were not, within the meaning of the statute, absent on election day from the state of Kansas at all times while the polls were open. The question proposed by plaintiffs relates to the interpretation of the provisions of G. S. 1949, 25-1101, the pertinent part of which provides:
“It shall be lawful for any qualified elector of this state, who is to be absent from the state upon the day of any . . . general election and who is actually so absent during all of the time that polls are open on such day, to vote for county, district and state officers, . . . and questions submitted, such electors having complied with the law in regard to registration . . .” (Our emphasis.)
We are advised the polls opened in Jewell county at 8:00 a. m. and closed at 6:00 p. m. At 5:00 a. m. the Gateses left the county in which they were eligible to vote on the special ballot en route to Kansas City, Missouri, a distance of approximately 240 miles, to keep an appointment with a doctor and did not return to their home county until 11:00 p. m. They were absent from tihe county at all hours when the polls were open. It is true that a portion of the time they were in transit from Missouri they were within the state of Kansas, having departed Kansas City, Missouri, at 4:00 p. m., but they were ineligible to vote on the special ballot at any place within the state other than in Jewell county.
It must be conceded that the Gateses had an appointment with a doctor in Kansas City, Missouri, and knew they would be absent from the state on election day and unable to vote in Jewell county. It is not contended that there was any fraud or bad faith on the part of the Gateses in casting their absentee ballots. There is ample evidence to support the district court’s findings that the Gateses departed from Jewell county before the precinct polls opened, that they did not anticipate returning to Kansas during election day, that they were absent from the state a greater part of election day, that they could not vote upon the special hospital levy outside Jewell county, and that they acted in good faith when obtaining and casting their absentee ballots.
The legislature sought to provide a method whereby electors who were necessarily to be absent from the state during a general election could cast their ballots. The act, in the absence of fraud or wrongdoing, does not intend to disfranchise electors who in good faith comply with its provisions.
It would appear the statute should be construed to carry out the legislative intent, and when such intent is once ascertained, it should be given effect, even though the literal meaning of the words used therein is not followed. Statutes should never be given a construction that leads to uncertainty, injustice, or confusion, if it is possible to construe them otherwise. If the law were as plaintiffs contend, election officials would be put to the duty of ascertaining whether or not electors whose absentee ballots have been transmitted to them in the proper way are, in fact, actually absent, before such officers would be justified in counting such ballots. Such a chaotic condition cannot exist. Every absentee vote would be the subject of much uncertainty, and every election contest would involve the issue of finding out whether or not each absentee voter was, in fact, absent on election day, and this though the. voter should otherwise be duly qualified. We think that a construction that leads to such confusion should not be indulged in, unless there is no escape therefrom. For an interesting analysis of the absentee voting statute see Wood v. The State ex rel. Lee, 133 Tex. 110, 126 S. W. 2d 4, 121 A. L. R. 931.
Our conclusion is that section 25-1101 should not be given the construction that a ballot cast absentee is illegal if the voter is not actually absent outside the confines of the state during the entire time the polls are open on election day. If a qualified elector of this state, in good faith, intends to or expects to be absent from the state on election day, so as to be unable to vote at his legal voting place within the state, he may, by following the necessary statutory procedure, cast his absentee ballot, and the same should be counted, absent his appearance in person on election day and casting his vote.
Plaintiffs also assert the court erred in finding that the vote of J. F. Riley cast in Brown’s Creek township should be counted.
The record discloses Riley had resided in Brown’s Creek township since 1937; that he built a house in Jewell in Buffalo township prin cipally for the convenience of having his wife near the doctor for more constant medical attention; that he rented his farm to his nephew but reserved a room in the farm home and claimed it as his residence; that he sometimes lived at the farm and ate at the farm. When asked whether or not when he moved into his new home in Jewell he intended to make it his permanent home, Riley replied, “No,” and stated it was his intention to keep his Brown’s Creek residence as a permanent home.
In the recent case of Irvin v. Irvin, 182 Kan. 563, 322 P. 2d 794, it is stated:
“The residence of a person as defined by statute (G. S. 1949, 77-201, Twenty-third) is the place adopted by a person as his place of habitation, and to which, whenever he is absent, he has the intention of returning. To accomplish a change of residence there must be not only physical or bodily presence in the new location, but also the intention to abandon the old residence and adopt another in the new location, either permanently or indefinitely.” (Syl. ¶ 2.)
In Arnette v. Arnette, 162 Kan. 677, 680, 178 P. 2d 1019, this court held that a citizen may change his residence either temporarily or permanently; and whether he does so is determined by his acts and his intentions. The general rule is that when a residence is once shown to have been established it is presumed to continue until it is clearly shown to have been abandoned.
In the instant case the trial court found that Riley was a resident of Brown’s Creek township and that his vote cast therein should be counted. There is ample evidence in the record to support the trial court’s findings.
Inasmuch as the votes of the Gateses and Riley were legally cast and counted and the question submitted carried by the necessary majority vote, other questions raised become immaterial and need no comment. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
This is an appeal from an order of the trial court refusing to open up a judgment cancelling an oil and gas lease, rendered on publication service against the owner of an overriding royalty interest in the lease.
The lease was originally executed in 1907 to extend for a term of ten years and so long thereafter as oil and gas is produced in paying production. It appears to have been one held by production and was acquired by Nako Corporation, an Illinois corporation, in 1961, subject to a retained one-sixteenth (Us) of seven-eighths {%) working interest in the Texas Western Corporation, a Missouri corporation. The latter conveyed its interest, commonly known and referred to as an overriding royalty interest, to appellants, B. W. Klippel and Alleen P. Klippel, on March 23, 1962, by assignment duly recorded.
On October 2, 1962, the landowners, appellees herein, filed their petition in the district court, seeking to cancel the lease and naming as defendants therein the Nako Corporation, the Klippels, and certain other record lienholders against the lessee with whom we are not presently concerned. The landowners will be referred to hereinafter as the appellees and the Klippels as the appellants.
Highly summarized, the petition alleged breach of implied production and development covenants by Nako Corporation in several respects with less production than that which the property was reasonably capable of up to September 1, 1962, repeated forfeiture notices to Nako, and further, that at the time of the filing of the action the lease was shut down and not operating and abandoned by defendants. The petition recited the overriding royalty interest of the appellants and the prayer was that defendants be cited to appear and answer and that upon final hearing the lease be terminated and cancelled.
Nako was served by summons upon its resident agent; service upon appellants was obtained by publication. Thereafter, Nako filed a special appearance and motion to quash service of summons which was overruled. Then Nako filed an answer in the form of a general denial. Appellants made no appearance of any kind. On February 18,1963, judgment against all defendants was entered can celling the oil and gas lease, the decree reciting . . although having been properly served defendants do not appear.”
April 1, 1964, appellants filed their verified application to open the judgment rendered against them on publication, alleging they had no actual knowledge of the pendency of the action and that they had a meritorious defense thereto, as set forth in their answer, and offering to pay costs if required, pursuant to K. S. A. 60-309 (a) which provides:
“(a) Procedure. A party against whom a judgment Iras been rendered without other service than publication in a newspaper, may, at any time within two (2) years after the entry of the judgment, have the same opened and be let in to defend. Before the judgment may be opened the applicant shall give notice to the adverse party of his intention to make such an application and shall file a full answer to the petition, pay all costs if the court require them to be paid, and make it appear to the satisfaction of the court by affidavit that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense. The adverse party on the hearing of the application may present counter affidavits.”
The appellants’ proffered answer contained the following:
“3. These answering defendants further admit the allegations contained in Paragraph 3 of plaintiff’s said petition and allege they paid Nineteen Thousand Dollars ($19,000.00) for said one-sixteenth (Ids) of one-eighth (3s) overriding royalty interest.
“5. For further answer these defendants state that defendant Nako was operating said lease diligently and prudently, and that the equipment thereon was adequate and suitable for production and that the drilling of additional wells would have been economically wasteful and that plaintiffs were actually receiving the maximum capacity of their landowner’s royalty therefrom.
“6. That unknown to these answering defendants, but well known to plaintiffs, the defendant Nako Corporation was temporarily involved in internal corporate dissension, the nature of which was unknown to these defendants, and that plaintiffs, through collusion with the faction in control of said Nako, obtained said judgment by default, thus depriving these answering defendants of their interest therein. These defendants are informed that said plaintiffs entered into some pre-arranged plan to execute a new lease to said faction in control in die event the said lease should be cancelled.
“7. These answering defendants specifically deny that said lease was abandoned, and that they do not know whether, at the time of the filing of the suit, the lease was completely shut down, but allege that if so, said condition was only temporary, which fact was well known to the plaintiffs herein.
“8. For further answer, these defendants state and allege that the only service had on them was by publication and that these defendants had no actual notice of the pendency of this action in time to appear in court to defend. These defendants attach hereto as Exhibit ‘A,’ a copy of their application to open judgment herein and make it a part hereof by reference.
“9. These defendants herewith offer to pay all costs of this action to which the court might find plaintiffs entitled.
“10. These defendants have no adequate remedy at law and will suffer irreparable injury if subject lease is held abandoned and terminated and.if they are not let in to defend this action.
“Wherefore, these defendants, having fully answered, pray that the judgment herein be opened up and that these defendants be allowed to defend and for such further relief as to the court seems proper.”
The trial court found that appellants during the pendency of the action did not have actual notice thereof in time to appear in court and make their defense, but concluded that they were not indispensable or necessary parties to the action and expressed doubt that they were even proper parties, and that by reason of their relationship to the lessee as overriding royalty holders were to be considered privy to the decree already rendered against the lessee and thereby precluded from reopening a controversy once adjudicated. The court found that for these reasons the proffered answer was not a full answer to the appellees’ cause of action, did not state a defense thereto, and accordingly denied appellants’ application to reopen the judgment.
Appellants contend the court erred in so doing and in finding that appellants failed to file a full answer to appellees’ cause of action.
Thus it will be seen the controversy hinges upon whether or not the answer filed by appellants is to be deemed a full answer in accordance with K. S. A. 60-309 (a).
In Williams v. Kiowa County, 74 Kan. 693, 88 Pac. 70, in considering what constituted a full answer, this court said:
“An answer filed in connection with an application to open a judgment rendered without other service than by publication must be full and complete as a pleading by the defendant in the cause. It need not present a defense coextensive with the entire demand, or with every demand, of the petition, but whatever defense it proposes must be complete and perfect in the sense of fully overcoming the portions of the plaintiff’s claim against which it is directed; and it must subvert sufficient of the cause of action set forth in the petition to make it worthy of consideration in the doing of substantial justice between the parties.” (Syl. f 1.)
Again in Anderson-Prichard Oil Corp. v. Unknown Successors, etc., Okla. Royalty Corp., 167 Kan. 432, 207 P. 2d 417, in discussing a like problem the court stated:
“A full answer has been otherwise described as meritorious (See Durham v. Moore, 48 Kan. 185, 29 Pac. 472.) A ‘meritorious’ defense has been defined as ‘one going to the substance or essentials of the case’ as alleged in the peti tion. (See Frizell v. Northern Trust Co., 144 Kan. 481, 61 P. 2d 1344.) It may be said a full answer is one which had it been filed in answer to the petition would have constituted, if proven, a defense to cause or causes of action alleged in the petition ... At the outset, it should be noted that we give this statute [G. S. 1949, 60-2530, now K. S. A. 60-309 (ff)l a broad interpretation so as to do justice to both sides. (See Leslie v. Gibson, 80 Kan. 504, 103 Pac. 115.)” (p. 437.)
Before going to the merits of the case it may be well to examine the nature of the interest involved. Typically, the term “overriding royalty” is used to describe a royalty carved out of the working interest created by an oil and gas lease. Most frequently it is created subsequent to a lease by outright grant or by a reservation in the assignment of the operating rights. It is an interest in oil and gas produced at the surface, free of the expense of production and its outstanding characteristic is that its .duration is limited by the duration of the lease under which it is created. (See 3 Summers, Oil and Gas, perm, ed., § 554.) In Kansas any covenants in the instrument creating it are not covenants running with the land (Nigh v. Haas, 139 Kan. 307, 31 P. 2d 28), and such interest is not an interest in land but is personal property. (Connell v. Kanwa Oil, Inc., 161 Kan. 649, 170 P. 2d 631.)
Let us examine the answer further. It first alleges the appellants paid $19,000.00 for the overriding royalty; that the lessee, Nako, was operating the lease diligently and prudently and that appellees were actually receiving the maximum capacity of their landowner s royalty; then that unknown to appellants, but well known to appellees, Nako was temporarily involved in internal corporate dissension, and that appellees, through collusion with the faction in control of Nako, obtained the forfeiture decree by default, and that appellees had a pre-arranged plan to execute a new lease to the faction in control of Nako after forfeiture of Nako’s lease, thus depriving appellants of their interest therein. Then appellants denied that the lease was abandoned and stated that if it was shut down at the time of the filing of the suit, that said condition was only temporary, which fact was well known to appellees. Appellants say they have no adequate remedy at law and will suffer irreparable damage if the lease is terminated finally and they are not let in to defend.
It is to be noted this was a lease held by production over a long period of time with eight completed wells (although one not placed on pump) and eleven injection wells. Necessarily there were reserves of value. Appellants allege they paid $19,000.00 for their interest on March 23, 1962. There was some production in fact up to September 1, 1962. The suit to cancel was filed October 2, 1962, thirty-one days thereafter. The suit was for immediate and not for conditional cancellation. Such suit has been held to be subject to the application of equitable principles. (See, Renner v. Monsanto Chemical Co., 187 Kan. 158, 354 P. 2d 326.)
The crux of appellants’ answer is contained in paragraph 6 above quoted. There they say that appellees through collusion with a faction in control of Nako obtained the initial judgment by default, having entered into a pre-arranged plan to execute a new lease to said faction.
Do these allegations entitle them to any relief? While we recognize some degree of speculation is necessarily involved in their purchase, appellants say they paid a substantial price for an interest in a going operation. They say they have been deprived of that interest through collusion.
In Black’s Law Dictionary, 4th ed., the term collusion is defined as follows:
“. . . an agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law. It implies the existence of fraud of some kind, the employment of fraudulent means, or of lawful means for the accomplishment of an unlawful purpose . . .,”
and
“A secret arrangement between two or more persons, whose interests are apparently conflicting, to make use of the forms and proceedings of law in order to defraud a third person, or to obtain that which justice would not give them, by deceiving a court or its officers.” (p. 331.)
In Anderson-Pritchard Oil Corp. v. Unknown Successors, etc., Okla. Royalty Corp., supra, again in consideration of that which constitutes a full answer, it was said:
“This answer must be considered as though it had been filed against the petition in the first place, that is, does it on its face state a prima facie answer to the cause of action pleaded in the petition? No motion to make this answer more definite and certain was filed. Under such circumstances it should be liberally construed and all reasonable inferences drawn in favor of the pleader. (See Roberts v. Pendleton, 92 Kan. 847, 142 Pac. 289; also Rust v. Rutherford, 95 Kan. 152, 147 Pac. 805.) We must consider this appeal in the light of what we said in Albright v. Warkentin, 31 Kan. 442, 2 Pac. 614. There we said:
“ 'Indeed, in order to do justice to both parties, the provisions of that section should be construed in no technical way, but fairly and reasonably. . . . In fact, a judgment upon service by publication is as between the parties in the nature of a conditional judgment, one which becomes final and absolute only at the expiration of three years, and liable in the meantime to be opened whenever the defendant brings himself within the provisions of the section.’ (p. 448.)
“See, also, Withers v. Miller, 140 Kan. 123, 34 P. 2d 110, where we also said:
“‘Our statute (R. S. 60-2530), which authorizes a party defendant in an action such as this, who served by publication only and who had no knowledge of the pendency of the action in time to defend, to come into the case at any time within three years after judgment against him was rendered, make the showing required and file an answer stating a defense, to have the judgment opened and to be heard on his defense, is remedial in its nature, and should be liberally construed in the furtherance of justice.’ (p. 126.)” (p. 441.)
Let us examine the question further in the light of the nature of the interest involved and the familiar principle that the duration of an overriding royalty interest is the duration of the lease creating it.
In 135 A. L. R. 546 (La Laguna Ranch Co. v. Dodge, 18 Cal. 2d 132, 114 P. 2d 351) the court considered a situation where there was no production under the lease involved and the lease contained an express surrender provision whereby the lessee might at any time quitclaim the premises to the lessor thereby terminating all rights of the parties. The court said:
"No contention was made that the surrender of the lease was a fraudulent act or that others were unjustly enriched at the expense of the overriding royalty holders. If fraud or inequity were present, the courts would stand ready to provide redress for the injured party.” (Emphasis supplied.) (p. 553.)
At the beginning of the annotation in 135 A. L. R. 557, we find this statement:
“The general conclusion which may be drawn from the few cases which thus far have dealt with the matter is that an overriding royalty interest, whether or not defined as an interest in real estate, is in its nature subject to the terms and incidents of the lease upon which it is founded, so that, ordinarily, when the lease terminates, either by reason of its own terms or in some other regular manner consistent with good faith, the royalty itself comes to an end.” (Emphasis supplied.)
Sullivan, Handbook of Oil and Gas Law, § 132, puts it this way:
“An agreement to pay an overriding royalty is a covenant that runs with the lease and not with the land. Therefore, absent fraud or bad faith, a termination of the lease will extinguish the overriding royalty. An express provision in the assignment that the override will continue in the event the lease is extended or renewed will preclude termination of the overriding royalty. In the absence of such provision, the override will continue in force if there is bad faith on the part of the lessee or if the lessee has failed to discharge a duty owing to the owner of the overriding royalty interest.” (Emphasis supplied.) (p.242.)'
Most of the decided cases touching holders of an overriding royalty have arisen in controversies between the lessee and the overriding royalty holder, and here there seems clearly emerging a duty of fair dealing required on the part of the lessee (See 2 Williams and Meyers, Oil and Gas Law, §420.2) to which doctrine this court has definitely inclined (Howell v. Cooperative Refinery Assn., 176 Kan. 572, 271 P. 2d 271.)
The case of Matthews v. Ramsey-Lloyd Oil Co., 121 Kan. 75, 245 Pac. 1064, was one involving rights of the owner of a non-operating interest in an oil and gas lease, namely, an oil payment reserved by the lessee on assigning the lease. Thereafter the lease was acquired by one of the concurrent owners of the lessor’s estate-in the premises. There was no production and hence, no recovery by the lessee-assignor from the assignee of the amount of the oil payment. The court suggested that it was not material that the part owner of the fee had acquired the lease and further stated:
“If oil is developed on this property, the interest in the first production, up to the sum of $30,000.00 which plaintiff reserved to himself when he sold the lease, can readily be protected either at law or in equity so far as Ramsey’s dual interest as part lessor-owner - and as assignee of the lease is concerned. Equity would not countenance a merger of interests in Ramsey to the prejudice of plaintiff.” (pp. 81-82.)
Thus it would seem that the particular circumstances under which a lease is terminated and the presence or absence of bad faith does, play a part in determining the duration of the overriding royalty.. This would appear right and just as otherwise the holder is completely at the mercy of any collusive overreaching on the part of the owners of the other interests and, though having bargained in good faith for an interest in oil produced during the term of the lease, the law would be powerless to protect him from an unjust cancellation of that lease. The granting and reserving of overriding royalties is well known in the oil industry and the practice can and does serve both the landowners and the operating lessees’ interests in the procuring and developing of leases. There is no reason why-such holders should not have the ordinary protection of the law from collusion and fraud. In Glassmire, Oil and Gas Leases and’ Royalties, 2d ed., § 64, the rule is more specifically stated:
“On bona fide forfeiture or surrender of the lease, the overriding royalty-created thereunder would fall with the lease. But if such forfeiture or surrender of the lease is obtained by fraud or collusion between the landowner and the assignee of the lease, for the purpose of avoiding or cutting out the: overriding royalty interest held by the original lessee and the substitution of a new lease given direct to the assignee, without mention of the previous over-rider, such a transaction could be enjoined by a court of equity and the original lease sustained. At least the owner of the overriding royalty would have an action at law against both landowner and lease owner for damages sustained by the attempted avoidance of his interest in the lease by a collusive forfeiture or surrender of the same.” (p. 240.)
In Smith v. Drake, 134 Cal. App. 700, 26 P. 2d 313, the court found there was no fraud in the cancellation of a lease and the giving of a new one, but implicit in the decision is the indication that collusion between the lessor and lessee would be a possible basis for the imposition of a trust for the benefit of the owner of an overriding royalty on a subsequently executed lease, and the case has been so interpreted. (See Sullivan, Handbook of Oil and Gas Law, § 132, p. 242.)
Nomenclature, or the classification of parties as either indispensable, necessary, or proper, is not particularly helpful in determining whether a “full answer” has been filed in this case, although in 5 Williams and Meyers, Oil and Gas Law, § 877.5, this statement is found:
“Since the decree cancelling the lease in the litigation between lessor and lessee terminates the lease also as to the overriding royalty owner, it seems clear that the latter should be regarded as a necessary party, at the least. The cases in point so hold.” (See case notes thereunder, p. 551.)
. In 58 C. J. S., Mines and Minerals, § 204 b., p. 495, it is stated that the general rules governing parties in other civil actions involving contract ordinarily prevail in actions involving the rights of the parties under an oil and gas lease, and further, that persons who have or claim a direct interest in the object and subject matter of the suit and whose interest will necessarily be affected by any judgment that may be rendered therein are not only proper parties but are necessary parties. It is not necessary in the instant case to categorize the appellants in that respect. However, we do note that in Pfannenstiel v. Central Kansas Power Co., 186 Kan. 628, 352 P. 2d 51, this court said:
“The term proper party has been defined as a party without whom the cause might proceed but whose presence will allow a decree or judgment more clearly to settle the controversy among all the parties.” (p. 635.)
It can hardly be denied that appellants would be entitled to relief against appellees and Nako if they can prove that the two were guilty of collusion in depriving them of a substantial right, and we perceive no reason why this could not, and should not, be litigated in the instant action without injustice to anyone. Once brought in to court, appellants should be permitted to be heard.
In Wyandotte County Comm’rs v. Axtell, 134 Kan. 304, 5 P. 2d 1078, this court held that anyone whose rights are affected by a judgment rendered without service other than by publication is entitled to have the judgment opened up when he complies with the statutory provisions therefor, whether or not he was named as a defendant in the action. Here appellants were named as defendants. While every allegation of their proffered answer standing alone might not constitute a defense to appellees’ claim against them, such allegations are indelibly tied in and consistent with their claim of collusion as set forth in paragraph 6 of such answer, and taken together the allegations do constitute a sufficient answer to entitle appellants to defend their interest against the termination sought by appellees and are, therefore, a full answer.
In Albright v. Warkentin, 31 Kan. 442, 2 Pac. 614, Mr. Justice Brewer said:
“Every party ought to have his day in court; and while service by publication, which in fact imparts no actual notice, must be sustained, yet a party thus served, and who has in fact no knowledge of the proceedings, ought to be granted a hearing if it can be possibly done consistent with the rights of the parties.” (p. 445.)
We hold that on bona fide forfeiture or surrender of a lease, the overriding royalty created thereunder falls with the lease. But if such forfeiture or surrender is obtained by fraud or collusion between the landowner and the lessee for the purpose of avoiding or cutting out the overriding royalty interest holder and the substitution of a new lease directly to the lessee, then a court of equity may grant relief to the overriding royalty holder against such forfeiture or surrender.
We should point out that the question before us is not what should be done when the case is finally presented, but whether the appellants have a right to be heard, and we hold that having brought themselves within the provisions of K. S. A. 60-309 (a), they have such right and should have their day in court.
In view of all that has been said, we conclude the trial court erred in its order denying appellants’ application and that order is reversed and the case remanded with directions to open the judgment rendered against appellants and that they be let in to defend.
Reversed and remanded with directions.
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The opinion of the court was delivered by
Fatzer, J.:
The defendant, Elijah Morris McCorvey, was tried by a jury and found guilty of the crime of grand larceny (K. S. A. 21-533), and was sentenced to confinement in the Kansas State Penitentiary for a period of fifteen years pursuant to the Kansas Habitual Criminal Act. (K. S. A. 21-107c.) He has appealed from the judg ment and sentence and the order overruling his motion for a new trial.
The state’s evidence was to the effect that MeCorvey, who lived in Oklahoma City, Oklahoma, and a confederate went into Dillon’s Supermarket at 1900 East Pawnee, Wichita, Kansas, on August 4, 1964, where they committed grand larcency. The evidence showed that, in the parlance of peace officers, the defendant was guilty of “till-tapping.” The clerk at the check-out counter testified the defendant’s confederate came to her stand to pay for two packages of cigarettes and laid a dollar bill on the counter near the cash register; that as she rang up the sale the confederate moved down to the far end of the counter where groceries are sacked, and threw out some change on the counter, mostly in pennies, stating he had the correct change to pay for the cigarettes; that the cash register remained open while she was counting the change, and while her attention was thus diverted she had the feeling there was something behind her; that she looked around and saw the defendant behind her and he had taken all of the “fives and tens” in the cash register; that no one else was standing at her check-out counter and she told the store manager, who was working in his office at the check-cashing booth a few feet away, she had been robbed; that she heard the store manager tell the defendant “to put the money down” and she then called the police.
The check-out clerk and the manager identified the defendant in open court as the man who reached into the cash register, removed the large amount of currency, and dropped it when running from the store.
Although the county attorney was aware the defendant had previously been convicted of criminal offenses similar to the crime charged, he did not offer evidence of such convictions in the state’s case in chief as relevant to prove motive, intent, plan or identity of the defendant. (K. S. A. 60-455.)
At the trial, after giving proper notice, the defendant testified in support of his plea of alibi. (K. S. A. 62-1341.) Prior to the defendant taking the stand, his wife, Salette MeCorvey, testified she lived with the defendant in Oklahoma City that they had been married for sixteen years and had three children; that the day before the alleged offense they had returned from a three-weeks vacation in California; that she owned a 1963 Oldsmobile and a 1962 two-tone Blue and White Ford; that on the day of the alleged offense the defendant spent the entire day at the home of their mutual friend, Olivia Powers, in Oklahoma City; that she talked to the defendant on the telephone around noon; that he returned home about 5:30 p. m. and that she particularly remembered the day because on his arrival home the defendant told her that Loretta Calhoun, a friend of theirs, had been shot and-killed in Oklahoma City at about 5:00 p. m. Her testimony was corroborated in detail by Olivia Powers.
Upon taking the witness stand, the defendant denied he was in Wichita on August 4, 1964, and testified generally to the same facts of his whereabouts on that day theretofore testified to by his wife and Olivia Powers. On cross-examination, the county attorney asked the following question:
“Now Mr. McCorvey, I would like to ask you if it is not true that in 1948, in the State of Ohio, you were . . .”
At this point, counsel for the defendant approached the bench and informed the court the state was attempting to inquire into a prior conviction which occurred in Ohio in 1948, and objected upon the grounds that K. S. A. 60-421 prohibited the testimony unless the state could show an exception thereto. The objection was overruled and the court permitted the county attorney to elicit testimony from the defendant which showed the jury he had been convicted of grand larceny in Ohio in 1948, and had served time on that conviction.
The county attorney proceeded with that line of questioning and asked the defendant if it were not true that he pleaded guilty to petty larcency at Emporia in 1960, and that the charge involved was a “till-tapping” charge. The defendant answered, “I believe that was the nature of it; a larceny charge.” The county attorney inquired if it were not true that he pleaded guilty to a petty larcency charge in Norman, Oklahoma, in 1962, to which the defendant replied in the affirmative. The county attorney then inquired if it were not true that he either pleaded guilty or was convicted of the crime of petty larceny at Stillwater, Oklahoma, in 1962, to which the defendant replied in the affirmative. The county attorney further inquired if he had pleaded guilty to larceny of money in Oklahoma City in 1962, to which the defendant replied in the affirmative, and further stated:
“I don’t remember that incident. It may have been, in July but if you mean do I have a police record, yes. All these things you mentioned to me I have either paid for already or — I don’t mind answering your questions if they have anything to do with this, but if you are trying to establish that I have a police record — yes, I have been arrested before.”
The defendant contends he did not introduce any evidence which had the sole purpose of supporting his credibility or to prove a trait of his character and that when the state failed to introduce evidence of his prior convictions of larceny and “till-tapping” in its case in chief to establish an element of the offense with which he was charged, it was prejudicial error for the district court to permit the county attorney to cross-examine him about such prior convictions after he testified in his own defense in support of his plea of alibi. He argues the state’s cross-examination not only attacked his credibility and character in violation of K. S. A. 60-421 and 60-422, but with the enactment of the Uniform Rules of Evidence in 1963, the rule that when a defendant in a criminal action takes the witness stand in his own defense he thereby places his character and credibility in issue and is subject to being cross-examined with the view of impairing his credibility concerning previous offenses and subjects involving him in degradation and disgrace although they do not pertain to the charge for which he is on trial, was abolished by K. S. A. 60-421. The statute reads:
“Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his credibility. If the witness be the accused in a criminal proceeding, no evidence of his credibility shall be admissible for the sole purpose of impairing his credibility unless he has first introduced evidence admissible solely for the purpose of supporting his credibility.” (Emphasis supplied.)
The pertinent part of K. S. A. 60-422 reads:
“As affecting the credibility of a witness . . . (d) evidence of specific instances of his conduct relevant only as tending to prove a trait of his character, shall be inadmissible.” (Emphasis supplied.)
The defendant further argues that the procedural framework of the Uniform Rules of Evidence is here a principal element of the substantive legislative system and that the procedures prescribed create substantive rights and impose limitations upon a county attorney by requiring that he may not submit a part of the state’s evidence in its case in chief and then lie in wait for the defense to place the defendant upon the witness stand to tell his side of the story, and prove the rest of the state’s case through cross-examination of the defendant. He further argues that the Uniform Rules of Evidence as applied to criminal proceedings did not materially change the case law as it was developed in Kansas prior to its en actment and that the evidence of crimes and prior convictions of the accused when relevant to prove a material fact such as intent, plan, knowledge or identity, as now authorized by K. S. A. 60-455, was always required to be introduced in the state’s case in chief, and he cites and relies upon State v. Myrick, 181 Kan. 1056, 1059, 317 P. 2d 485; City of Topeka v. Harvey, 188 Kan. 841, 365 P. 2d 1109; State v. Wright, 194 Kan. 271, 398 P. 2d 339; State v. Poulos, 196 Kan. 287, 411 P. 2d 689, cert. den. 385 U. S. 827, 17 L. Ed. 2d 64, 87 S. Ct. 63; State v. Darling, 197 Kan. 471, 419 P. 2d 836. K. S. A. 60-455 reads:
“Subject to section 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed another crime or civil wrong on another specified occasion but, subject to sections 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.” (Emphasis supplied.)
In advancing his contention, the defendant concedes that K. S. A. 60-421 does not conflict with K. S. A. 60-455, and states:
“. . . This statute (K. S. A. 60-455) would have permitted the prosecutor, had he chosen to do so, to present evidence that McCorvey had on prior occasions engaged in some ‘crime or civil wrong’ which would have been relevant to an issue in the trial. For instance, if one of the convictions grew out of a previous instance of ‘till-tapping,’ a type of larceny with a definite modus operandi, the prosecutor could have shown that McCorvey had previously committed such an offense to prove ‘opportunity,’ ‘intent,’ ‘plan,’ ‘knowledge,’ or possibly ‘identity.’ Such evidence, of course, would have to be presented in the State’s case in chief, as it would be evidence going to establish the elements of the crime of larceny . . .”
In discussing the defendant’s contention, it should be noted he did not object to the county attorney’s questions on the ground they were outside the scope of his direct examination (K. S. A. 60-243 [&], 60-404), nor did he argue that point at the hearing on the motion for a new trial. It should likewise be noted the defendant did not introduce any evidence which had the sole purpose of supporting his credibility, or to prove a trait of his character.
One of the principal issues of fact by reason of the defendant’s plea of alibi was the identity of the person committing the offense charged. As indicated, the defendant concedes the criminal offenses he admitted on cross-examination were “similar but independent offenses” to the offense for which he was being tried, and would have been relevant to prove a material issue in the trial if offered in the state’s case in chief. (60-455.) Was such evidence admissible in the state’s cross-examination of the defendant? We think it was.
The only requirement 60-455 imposes is that such evidence be relevant to prove some other material fact at issue, and it makes no provision with respect to the order of proof of such evidence. It clearly does not provide that such evidence shall be admissible only in the state’s case in chief. No case has been cited and we know of none which precludes the admission of such evidence on cross-examination. The order in which competent and relevant testimony is admitted during the trial is largely within the discretion of the district court, and, unless it appears that such discretion has been abused, no error lies. (Rheinhart v. State, 14 Kan. *318; Blake v. Powell, 26 Kan. 320; State v. Neff, 169 Kan. 116, 218 P. 2d 248; State v. Smit, 184 Kan. 582, 585, 337 P. 2d 680.) In the Neff case it was held:
“It is always desirable that there should be an orderly presentation of proof. Rules pertaining thereto, however, are directory and not mandatory. An alteration in the prescribed customary order of proof rests in the sound judicial discretion of the trial court and the court’s ruling will not be disturbed on appeal unless its exercise of discretion is abused.” (Syl. f 8.)
In State v. Omo, 199 Kan. 167, 428 P. 2d 768, the rule with respect to evidence of similar but independent offenses was said to be admissible in the district court’s discretion, but it was not held such evidence was required to be received in the state’s case in chief. The opinion states:
“. . . We have always rejected, as prejudicial, evidence of another crime as proof that a person committed a crime upon specified occasion. But we have always admitted such evidence of prior commission of crime under proper limiting instructions when relevant to prove some other material fact including intent, plan, knowledge or identity . . (l.c. 173.)
We conclude that where the defendant takes the witness stand and offers evidence in his behalf, or as here, testifies in support of a plea of alibi, it is proper for the state to cross-examine him concerning similar but independent offenses when relevant to prove some material fact including those specifically enumerated in 60-455, with proper instructions as to the limited purpose for which such evidence may be considered' by the jury. (State v. Taylor, 198 Kan. 290, 424 P. 2d 612, Syl. ¶ 2.)
The defendant contends the district court improperly instructed the jury in instruction No. 3 concerning the evidence of similar but independent offenses. The contention assumes the evidence of the defendant’s former convictions was admissible under 60-455. Counsel states that the defendant’s requested instruction No. 1 was taken from an instruction approved by this court subsequent to the passage of 60-455 (State v. Wright, supra, p. 276), and that it should have been given to the jury.
All of the instructions given by the district court have not been abstracted, but the state contends the substance of the requested instruction was covered by the court’s instruction No. 3 which advised the jury as to the limited purpose for which such evidence might be considered. In State v. Mader, 196 Kan. 469, 412 P. 2d 1001, it was said:
“Under these circumstances it has been held where an appellant relies upon an alleged error of the court in refusing to give a particular instruction, and only the one instruction is presented to this court for consideration, error will not be predicated upon the refusal to give such instruction, especially where it is claimed by the appellee that the substance of the instruction was in fact given in other instructions. (State v. Murphy, 145 Kan. 242, 65 P. 2d 342; and State v Reilly, 85 Kan. 175, 116 Pac. 481.)” (l. c. 476.)
For reasons heretofore discussed, we hold the fact that evidence of the defendant’s commission of similar but independent offenses was admitted in evidence on his cross-examination rather than in the state’s case in chief was not prejudicial to him, and the district court did not err or abuse its discretion in overruling his objections. The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
At issue is the validity of a subcontractor’s mechanic’s lien statement for materials supplied in the erection of a certain building, and whether the statement may be amended pursuant to K. S. A. 60-1105 (b) to supply a verification.
The defendants, Norman J. Karlin and Lucille Karlin, are the owners of the real property on which the building was erected. Joe Hish, the defendant-contractor, entered into a contract with the Karlins to erect the building. The plaintiff, D. J. Fair Lumber Co., was the subcontractor which furnished the materials in the erection of the building.
On February 26, 1965, the plaintiff filed a statement purporting to be a mechanic’s lien with the clerk of the district court, which was signed and acknowledged as follows:
“Witness the hand of said, The D. J. Fair Lumber Company, the subcontractor and claimant, this 25th day of February, 1965.
“The D. J. Fair Lumber Company
“By D. J. Fair
President
“Attest:
“M. P. Fair
“Secretary
“State of Kansas, County of Reno, ss:
“Be it remembered, That on this 26th day of February, 1965, before me, the undersigned, a Notary Public in and for the County and State aforesaid, came D. J. Fair, President of the D. J. Fair Lumber Company, a corporation duly organized, incorporated and existing under and by virtue of the laws of Kansas, and M. P. Fair, secretary of said corporation who are personally known to me to be such officers, and who are personally known to me to be the same persons who executed, as such officers, the within instrument of writing on behalf of said corporation, and such persons duly acknowledged the execution of the same to be the act and deed of said corporation.
“In testimony whereof, I have hereunto set my hand and affixed my Notarial Seal, the day and year last above written.
R. C. Wyatt
Notary Public
“My Commission Expires: August 25, 1968
“R. C. Wyatt — Notary Public.”
The parties concede the lien statement was filed in the requisite statutory time; that the plaintiff mailed a copy of the lien statement to the defendants Karlin by certified mail, return receipt requested; that the description of the real property upon which the lien was claimed was properly described in the lien statement and in the petition seeking foreclosure; that the account was properly attached, and that the plaintiff did under a subcontract with Joe Hish furnish materials which were delivered upon the premises and actually used thereon in the construction of the building.
On February 25, 1966, the plaintiff filed its petition to foreclose the mechanic’s hen. In preparing its petition the plaintiff apparently noted Reeves v. Kansas Coöp. Wheat Mk’t Ass’n, 136 Kan. 306, 15 P. 2d 446, where it was held that a lien statement which was “acknowledged” instead of “verified” was invalid, and Ekstrom United Supply Co. v. Ash Grove Lime & Portland Cement Co., 194 Kan. 634, 400 P. 2d 707, which held that the failure of a subcontractor to verify its lien statement pursuant to G. S. 1961 Supp. 60-1403, was fatal to recovery, since paragraph 7 of the petition states;
“That in the event the court finds that the materialmen’s lien attached hereto was not properly verified, the Plaintiff requests authority to amend said lien in accordance with K. S. A. 60-1105 (b) so that the materialmen’s lien will conform to the requirements of K. S. A. 60-1102 and K. S. A. 60-1103.”
On March 3, 1966, the defendants Karlin filed their motion to dismiss the plaintiff’s action for the reason the petition and exhibits showed affirmatively upon their face the lien statement in question contained no verification whatsoever but was “acknowledged” in lieu thereof, which rendered the statement fatally defective and not subject to amendment.
In a memorandum opinion the district court concluded that, lacking verification, the lien statement was vitally defective, and not being corrected within the statutory period for obtaining a lien, the defect went to the whole of the claim and the statement could not be amended pursuant to K. S. A. 60-1105 (b). It sustained the Karlins’ motion to dismiss, being of the opinion the subcontractor was not entitled to a personal judgment against the property owners.
The plaintiff concedes the lien statement was not “verified” but instead was only “acknowledged,” and limits its argument to whether the district court erred in refusing to permit the plaintiff to amend the lien statement pursuant to K. S. A. 60-1105 (b) by properly verifying it to conform with K. S. A. 60-1102 and 60-1103.
Was the lien statement subject to amendment by permitting the plaintiff to verify it one day less than one year after it was filed? We think not. K. S. A. 60-1102 expressly requires that a mechanic’s lien statement shall be verified by the claimant when it is filed. Here the lien statement was not verified at all; it was only acknowledged. It is obvious that an acknowledgment does not constitute a verification nor even an attempted one. An acknowledgment shows, merely prima facie, that an instrument was duly executed, whereas a verification is an affidavit attached to a statement as to the truth of the matters therein set forth. On this subject, Mr. Justice Fontron, in his dissenting opinion in Ekstrom United Supply Co. v. Ash Grove Lime & Portland Cement Co., supra, stated the following, which the court adopts:
“. . . The distinction between a verification and an acknowledgment is too well recognized and understood to require extensive comment. It is enough to say that the two are not equivalents; an acknowledgment serves a quite different purpose than does a. verification.” (1. c. 639.)
In the Ekstrom case it was held that the failure of the subcontractor to verify its lien statement in accordance with the mandatory provisions of the statute was fatal to recovery, and in the opinion it was said:
“It is a settled rule in this state that equitable considerations do not ordinarily give rise to a mechanic’s hen. Being created by statute, a mechanic’s lien can only arise under the circumstances and in the manner prescribed by the statute. A lien claimant must secure a hen under the statute or not at all. (Don Conroy Contractor, Inc. v. Jensen, 192 Kan. 300, 304, 387 P. 2d 187.) 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. (Clark Lumber Co. v. Passig, 184 Kan. 667, 673, 339 P. 2d 280.) There is no privity of contract between the subcontractor and the oioner, and the former can only obtain a lien by compliance with the statutory provisions. It is not enough that he has furnished the material and filed a lien. The verification prescribed in the statute is one of the necessary steps. Without such verification the lien claimant obtains nothing. The right to claim and enforce his lien being statutory, compliance with the statute is a prerequisite. (Jones v. Lustig, 185 Kan. 208, 210, 341 P. 2d 1018.” (l. c. 635, 636.) (Emphasis supplied.)
In Reeves v. Kansas Coöp. Wheat Mk’t Ass’n, 136 Kan. 306, 15 P. 2d 446, the action was to enforce a thresher’s lien authorized by R. S. 58-204, now K. S. A. 58-204, and it was said:
“. . . It will be observed that the statement contains no verification, but only an ordinary acknowledgment of the execution of the instrument and a certification that Reeves, who signed the statement, was personally known to the notary to be the person who did sign it and that the signer acknowledged the same to have been his own free will and act . . . The thresher’s lien is a creation of statute and is to be perfected by taking the steps which the statute prescribes shall be taken. The right to acquire a thresher’s lien is definitely given if the prescribed steps are taken by the thresher, but an enforceable lien can only be obtained by a substantial compliance with the statutory requirements. As has been seen, a number of requirements are prescribed, and one of the important ones is that a verified statement of the things essential to a lien shall be filed for record . . .
“The verification prescribed in the statute means that the statement filed shall be sworn to by the claimant before an officer having authority by law to administer and certify oaths and affirmations. It was evidently intended to require truth and accuracy in the statement, but, whatever the purpose may have been, it is an essential element of a valid lien . . . The statute is mandatory, and. the lack of a verification in the statement filed . . . necessarily defeats the lien. In claims for mechanic’s liens there are some similar statutory requirements, and authorities on those cases have some application. It has been held that references and evidence outside of the lien statement are not sufficient to support a lien . . .” (1. c. 308, 309.) (Emphasis supplied.)
In Phillips, Mechanics’ Liens (3d ed.), p. 637, §366, it was said:
“Where a statute declares that the notice to create a lien ‘shall be verified’ before filing, it is essential to the creation of the lien that it should be sworn to in the manner prescribed. The want of verification, or of a sufficient verification, is a defect which goes to the whole claim, and cannot be amended . . .” (Emphasis supplied.)
In Logan-Moore Lumber Co. v. Foley, 181 Kan. 984, 317 P. 2d 467, reference was made to G. S. 1949, 60-1405, providing in substance that in case an action was brought, any lien statement may be amended by leave of court in the furtherance of justice as pleadings may be in any matter, except as to the amount claimed, and it was said:
“. . . The provision for amendment of the lien statement in a proceeding brought for its enforcement is not intended to authorize the court to create a lien where none was created by the statement which was filed. In one sense of tlie word, there really was nothing for plaintiff to amend, and even if there were, the requested amendment most certainly sought to change substantially the claim. . . .” (1. c. 990.)
In Safford & Son Lumber Co. v. Kerley, 184 Kan. 59, 334 P. 2d 334, it was said that to permit “amendment” or “reformation” after the statutory period for filing a mechanic’s lien would place the court in the position of creating a lien, where none was in effect, and it was held:
“The right to reform or amend a lien statement under the provisions of G. S. 1949, 60-1405 is dependent upon a present, existing and unreleased lien statement being on file.” (Syl.)
The plaintiff contends that the cases of Logan-Moore Lumber Co. v. Foley, supra, and Logan-Moore Lumber Co. v. Black, 185 Kan. 644, 347 P. 2d 438, which held there can be no amendment to create a lien where none was created by the statement when it was filed, were decided pursuant to G. S. 1949, 60-1405 which has since been repealed and replaced by K. S. A. 60-1105 (b) liberalizing the district court’s discretion to amend, by deleting from the old statute which permitted amendments only “as pleadings may be in any matter.” K. S. A. 60-1105 is a part of the new code of civil procedure, and provides, in part:
“(h) Amendment. Where action is brought to enforce a lien the lien statement may be amended by leave of the judge in furtherance of justice, except to increase the amount claimed.”
Commenting upon this section, Judge Gard, in Kansas Code of Civil Procedure, Annotated, p. 661, states:
“This provision is the same as the last part of GS 1949, 60-1405, relating to amendment of the lien statement. The attitude toward amendment in Kansas has been liberal, both as expressed by the legislative intent and by the court decisions. This subsection does not make it less so . . .”
However, Judge Gard continues:
“In order to justify an amendment the lien statement must have been sufficient when filed to perpetuate the lien. S. J. Safford & Son Lumber Co. v. Kerley, 184 Kan. 59, 334 P. 2d 334. Thus any amendment may be permitted to perfect a lien statement not vitally defective . . .” (p. 661.)
This court has always liberally construed our mechanic’s lien statutes, once a lien has attached, but it has consistently held that a mechanic’s lien can only be acquired in the manner and upon the conditions prescribed in the statute; that the verification prescribed by the statute is an essential and fundamental step; that without such verification the lien claimant obtains nothing, and that the right to claim and enforce such a lien, being statutory, compliance with the statute is a prerequisite. That being the case, this court is of the opinion the language used in K. S. A. 60-1105 (b) is not sufficiently different from that used in the prior statute (G. S. 1949, 60-1405) to permit amendment of a vitally defective lien statement after the statutory period in which to file such lien has expired.
The plaintiff’s lien statement, lacking verification, created no lien. The acknowledgment added nothing to its validity. Paragraph 7 of the plaintiff’s petition requested the court to amend and perfect a lien which was imperfect on its face. The exercise of the power of amendment conferred by 60-1105 (b) is limited by the possibility of injustice to either the defendant or to third persons, and the burden is upon the claimant to show the proposed amendment would not work an injustice. The power is further limited where the proposed amendment would evade or defeat the operation of statutes — here, 60-1102 and 60-1103 — since no court has power to nullify statutes valid on their face. (Atkinson v. Woodmansee, 68 Kan. 71, 74 Pac. 640.) In short, the plaintiff’s proposed amendment would not have been “in the furtherance of justice” since the amendment sought would have had the effect of creating a lien where none previously existed, and this, as we have seen, would evade or defeat the operation of 60-1102 and 60-1103.
In view of the foregoing, we hold that the acknowledgment of plaintiff’s mechanic’s lien statement was not a verification or an attempted verification as required by K. S. A. 60-1102 and 60-1103, and since the same was not corrected within the statutory period for obtaining a valid lien, the lien statement was vitally defective when filed, and it cannot now be amended to permit its verification. The district court did not err in dismissing the plaintiff’s action.
The judgment is affirmed. | [
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The opinion of the court was delivered by
O’Connor, J.:
This action was brought under the provisions of G. S. 1961 Supp., 44-504, in the name of the injured employee, Olive Bingham, for her benefit and for the benefit of her employer, Joy’O, Inc., and its insurance carrier, Royal Indemnity Company, against a third party tort-feasor, Hillcrest Bowl, Inc., seeking to recover damages for personal injuries received by the plaintiff when she slipped and fell in defendant’s bowling alley.
The case was previously before this court in Bingham v. Hillcrest Bowl, Inc., 193 Kan. 201, 392 P. 2d 942, and we held that the petition stated a good cause of action, and the action was properly brought in plaintiff’s name under the mentioned statute. Subsequently, issues were joined, the case was tried to a jury and resulted in a verdict in favor of plaintiff in the amount of $13,066. Defendant has appealed, contending (1) there was no evidence that it had actual or constructive notice of the alleged dangerous condition of the floor; (2) plaintiff was contributorily negligent as a matter of law; and (3) the trial court erred in certain rulings regarding the admissibility of evidence.
Summarily, the facts are that on May 6, 1960, a damp, misty morning — rain having commenced about 8:00 a. m. — plaintiff was delivering a tray of doughnuts about 11:00 or 11:30 a. m. to her employer’s restaurant concession located in the bowling alley owned and operated by the defendant. A few feet inside the entrance to the building plaintiff slipped on the wet terrazzo floor, her feet went out from under her and she fell, landing on her coccyx. Hattie Wells, a waitress at the restaurant, looked up from the customers she was serving when she heard plaintiff cry out, and saw her lying on the floor a few feet inside the entranceway to the bowling alley. Mrs. Wells went to plaintiff’s assistance and called an ambulance. Plaintiff was taken to a hospital. The injuries sustained by plaintiff as a result of her fall necessitated spinal surgery and extensive hospitalization.
The record discloses that the bowling alley had been opened to the public at approximately 8:30 a. m., and at the time of the accident there were a number of bowlers inside the building. It had been raining intermittently throughout the morning, and there was moisture on the sidewalk and pavement as well as on the floor inside the building. A person entering the bowling alley was required to cross a recessed rubber foot mat and then a strip of terrazzo floor before reaching the carpeted concourse. Customarily, when the weather was damp or wet, a rubber, non-skid runner was unrolled across the terrazzo area. On previous wet days when plaintiff had made deliveries to the bowling alley this runner had been so laid, and she was accustomed to its being in place. At the time of plaintiff’s fall, however, the runner was not down, but was put down shortly afterwards, and since has been laid regularly on wet days. The manager of the bowling alley was not on duty at the time of plaintiff’s fall, and there was no evidence showing that the tracked-in moisture had been wiped from the terrazzo floor during this three-hour period, or that the floor had been otherwise maintained.
The defendant moved for a directed verdict at the end of plaintiff s evidence and also at the close of all the evidence. The court reserved ruling on these motions and submitted the matter to the jury. The jury returned a verdict for the plaintiff and, in answer to special questions, found the defendant was negligent in
“Failure to provide proper maintenance to entryway floor areas. Failure to provide a non-slip walkway during periods of precipitation.”
and that plaintiff was not contributorily negligent. Again the defendant moved for judgment notwithstanding the verdict, and joined with it a motion for new trial pursuant to K. S. A. 60-250 (b). Defendant’s several motions were overruled.
Defendant’s principal points on appeal deal directly with the propriety of the trial court’s denying the defendant’s motions for directed verdict and motion for judgment notwithstanding the verdict. In testing the sufficiency of evidence as against such motions, the evidence and the inferences that can reasonably be drawn therefrom must be considered in the light most favorable to the party against whom the motion is directed; and if the evidence and the inferences viewed in that manner are of such character that reasonable minds may reach different conclusions thereon, the motion for directed verdict should be overruled and the issues submitted to the jury. (Williams v. Benefit Trust Life Ins. Co., 195 Kan. 579, 408 P. 2d 631; First National Bank in Dodge City v. Keller, 193 Kan. 581, 396 P. 2d 304; Schmatjen v. Alexander, 192 Kan. 807, 391 P. 2d 313.)
Defendant first contends the trial court erred in not sustaining defendant’s motions for the reason the evidence failed to show it had actual or constructive notice of the alleged dangerous condition which caused plaintiff’s fall.
We note that defendant concedes plaintiff was a business visitor, or invitee. Therefore, the defendant, as a proprietor, was under a duty to use ordinary care to keep in a reasonably safe condition those portions of its premises which could be expected to be used by invitees. (See Smith v. Mr. D’s, Inc., 197 Kan. 83, 415 P. 2d 251.) Where injury to a business invitee results from a dangerous condition not created by the proprietor but traceable to persons other than those for whom the proprietor is responsible, proof that the proprietor was negligent with respect to the condition requires a showing that he had actual notice thereof, or that the condition existed for such a length of time that in the exercise of ordinary care he would have known of it and taken action to remedy it. (Smith v. Mr. D’s, Inc., supra; Magness v. Sidmans Restaurants, Inc., 195 Kan. 30, 402 P. 2d 767; Hein v. Mills Building Co., 190 Kan. 198, 372 P. 2d 994; Little v. Butner, 186 Kan. 75, 348 P. 2d 1022.)
Defendant argues that there was no evidence about the amount of water on the floor, how long or how much it had been raining, or that defendant knew or should have known of the presence of the water, and relies on what was said in Parks v. Montgomery Ward & Co., 198 F. 2d 772 (10th Cir. 1952), Hein v. Mills Bulding Co., supra, and Relahan v. F. W. Woolworth Co., 145 Kan. 884, 67 P. 2d 538. In Parks, the plaintiff slipped and fell on a floor which had become slippery due to water from the clothing and shoes of' persons coming into the defendant’s store. It had been raining; almost continuously since 6:00 a. m. until about 11:00 a. m., when the accident occurred. There was no evidence when the store-opened for business. Applying Kansas law, the court held that plaintiff failed to establish actionable negligence on the part of the defendant, and observed as follows:
“. . . There was no showing as to how long the condition had existed, whether defendant had actual knowledge of its existence, or whether the floor had been mopped from time to time during the morning. There was an absence of any showing that it was a common practice or precaution of prudent merchants under similar circumstances to keep a mat or other covering on the floor. . . .” (p. 775.)
In Hein, it had been raining, and after plaintiff had entered the building about 8:00 or 8:15 a. m., she fell. The building had been open to the public since approximately 7:00 a. m. The sidewalks and streets were wet, and there was water on the linoleum floor inside the door where plaintiff fell. In holding that the trial court properly sustained a demurrer to plaintiff’s evidence, the court said there was no evidence as to the extent or amount of water that had accumulated on the floor, when it had started to rain, the extent of rainfall, nor was there any showing that it was common practice of the defendant or similar places of business to use mats or other protective floor coverings. Similarly, in Relahan, the plaintiff was injured from slipping on a stairway where candy wrappers were found, but there was no evidence she in fact slipped on the wrappers or that they had remained on the steps for a sufficient length of time to charge the defendant with constructive notice of then- presence. The facts in the foregoing cases are, in our opinion, clearly distinguishable from those of the instant case.
Here, there was expert testimony to the effect that a terrazzo floor was extremely slippery and dangerous when wet. That the defendant was well aware of such condition is evidenced by the fact it customarily covered the area with a non-skid rubber runner on occasions when the weather was damp or wet. On the day in question it had been raining in varying intensity approximately three hours after defendant opened its doors to the public, during which time a number of bowlers had already entered the premises. The terrazzo floor had become wet to the extent, at least, that after plaintiff’s fall her uniform was soiled and damp. This evidence was sufficient, in our opinion, to charge the defendant with constructive notice of the dangerous condition of the floor in that the defendant knew or should have known from the length of time it had been raining, and the fact that patrons tracked in moisture and thereby made the terrazzo floor slippery, that corrective action, such as putting down the rubber runner, should have been taken. The trial court properly left the matter to be resolved by the jury. Implicit in the jury’s general verdict is a finding that the condition had existed for such a length of time that in the exercise of ordinary care the defendant should have known about it and taken remedial action.
Our conclusion on this point finds support in Pignatelli v. Gimbel Bros., 285 App. Div. 625, 140 N. Y. S. 2d 23, 131 N. E. 2d 578, 309 N. Y. 901, the facts of which bear striking similarity to those here. There, the plaintiff fell on a wet terrazzo floor which normally was covered with a rubber mat during periods of precipitation. In affirming a judgment for the plaintiff, the court stated that the jury would have been justified in finding that defendant knew or should have known that it had rained for a considerable period of time and that patrons would track in mud and water, making the terrazzo floor dangerously slippery. From experience, the court said, the defendant was aware of the danger and knew what measures had to be taken to protect the public, and had accordingly adopted a custom of placing down a mat on rainy days.
The liability of a proprietor for injuries sustained by a business invitee who falls on a terrazzo floor made slippery by water, oil, mud or snow, has been the subject of much litigation in courts throughout the land. Many of the cases are collected and reviewed in the extensive annotation in 62 A. L. R. 2d 6-120, particularly § 13.
Defendant next contends the court erred in failing to find that plaintiff was contributorily negligent as a matter of law because she (1) failed to use the recessed foot mat and (2) failed to look ahead and observe the floor.
In Newman v. Case, 196 Kan. 689, 413 P. 2d 1013, we said:
“Contributory negligence is never presumed, but must be established by proof. Ordinarily, its existence in a given case is a question of fact, it being for the jury to decide whether the conduct of a party measures up to that expected of a reasonably careful man. Only when conduct can be said as a matter of law to have fallen below the standard of a reasonably prudent person may the question of contributory negligence be taken from the jury and determined by the court.” (p. 691.)
Also, see Johnston, Administratrix v. Ecord, 196 Kan. 521, 412 P. 2d 990.
Plaintiff testified she did not remember whether or not she wiped her feet on the recessed mat immediately inside the door. This is hardly an admission that she failed to do so. Moreover, there was evidence that the mat was not absorbent or designed to dry the soles of shoes. Plaintiff also testified she doubted that she was looking at the floor when she entered the bowling alley. It must be remembered that plaintiff was carrying a tray of doughnuts in front of her at the time, and she could not be expected to be watching the floor at each and every step. She had entered the doorway on prior occasions, but the rubber mat was always in place across the terrazzo floor during periods of precipitation. Under the circumstances, it cannot be said she had reason to expect or anticipate the dangerous condition of the floor. A business invitee’s failure to look out for danger on the premises where there is no reason for an ordinarily prudent person to apprehend any does not constitute contributory negligence. (Little v. Butner, supra; Marietta v. Springer, 193 Kan. 266, 392 P. 2d 858. Also, see Anno. 62 A. L. R. 2d 111, § 19.)
In face of the evidence, we believe the question of plaintiff’s contributory negligence was properly submitted to the jury for determination as an issue of fact.
Defendant’s remaining points have to do with rulings of the court on admissibility of certain evidence. These points were included in the defendant’s combined post-trial motions as grounds for a new trial, but were not argued at the hearing on the motions. Plaintiff now urges that by defendant’s failing to argue the matters to the trial court, such points were waived and are not now subject to appellate review. We do not agree. The filing of a motion for new trial is no longer a prerequisite to appellate review under the rules applicable to the new code of civil procedure (Rule No. 6[d], 194 Kan. xiv; Moyer v. Board of County Commissioners, 197 Kan. 23, 415 P. 2d 261; Schoof v. Byrd, 197 Kan. 38, 415 P. 2d 384), and the mere fact that a motion for new trial is filed but certain points stated therein are not argued to the trial court does not preclude appellate review of such points.
Defendant asserts that the trial court erred in prohibiting it from apprising the jury that the action was brought by plaintiff’s employer and insurance carrier in the name of the plaintiff under G. S. 1961 Supp. 44-504, for their subrogation claim in the amount of $7,100.80. At the pretrial conference, over defendant’s objection, the trial court ruled that the matter of subrogation in workmen’s compensation would not be revealed to the jury by either the court or counsel. The defendant cites no authority to sustain its contention the jury should have been informed of the employer’s and insurance carrier’s interests in the case. We are of the opinion the trial court correctly ruled that the interests were in no way relevant to the determination of the issues of fact by the jury. It was emphasized in Sundgren v. Topeka Transportation Co., 178 Kan. 83, 283 P. 2d 444, that
“. . . The statute [44-504] was not enacted to reheve, alter or vary in any way the liability for the tort of the third party wrongdoer. (Moeser v. Shunk, 116 Kan. 247, 226 Pac. 784.) The liability of the tort-feasor remains the same for two years after the injury no matter who brings the action — the employee or the employer. . . .” (p. 88.)
On the morning of trial the defendant indicated it desired to introduce evidence in the nature of admissions against interest made by an authorized agent of Joy’O, Inc. The court reserved ruling until the evidence was offered at trial. The defendant called Albert Adams, manager of Joy’O, Inc., and, through him, offered “Exhibit C,” an accident report made out by Mr. Adams pertaining to plaintiff’s fall and filed with the workmen’s compensation director. The proffer was rejected. Defendant’s only ostensible and legitimate purpose in attempting to inject the employer and insurance carrier into the lawsuit was to introduce “Exhibit C,” which contained a statement the “employee passed out.” G. S. 1949 [now K. S. A.] 44-557 requires an employer to file a report of any accident, but the statute specifically provides that such report shall not be used or considered as evidence before the director, or in any court in this state. Thus, the trial court properly excluded “Exhibit C” from evidence.
Finally, the defendant urges the court erred in excluding rebuttal testimony of Dr. Ehlert, plaintiff’s chiropractor, that she had had a prior fainting spell and a prior back injury. We have examined the record on the point, and the testimony need not be detailed. We believe, under all the circumstances, that the trial court properly excluded the testimony concerning an alleged prior fainting spell on the basis there had been no evidence in relation to the fall of plaintiff’s having fainted, and thus was irrelevant; and likewise, the court in its sound discretion could reject such testimony for impeachment purposes. (K. S. A. 60-422 [&].) In respect to testimony of a prior back injury, there was an absence of any evidence tending to link such injury to plaintiff’s present back condition, and the trial court, in our opinion, correctly ruled the testimony was not relevant. (K. S. A. 60-401 [&].)
In view of what has been said, we fail to find anything in the record that would warrant our disturbing the judgment rendered below. Accordingly, the judgment is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment sustaining a demurrer to plaintiff’s petition.
On September 29, 1961, at about 12:15 A. M., Milo B. Grisamore was traveling south in a 1959 Chevrolet pick-up truck on St. Francis Street in the city of Wichita, Sedgwick County, Kansas. The street crosses certain railroad tracks used and maintained by the defendant in the 700 block south. As Grisamore reached the railroad tracks one of defendant’s trains was blocking the crossing and his truck collided with one of defendant’s cars injuring him and subsequently causing his death on September 30, 1961. .
The specific facts with which we are concerned must be accepted as alleged in the petition and are as follows:
Specific Negligent Acts of Defendant. The 700 block on South St. Francis Street, in the area where it intersects with defendant’s tracks and where the collision occurred, is a one-way street for southbound traffic, is poorly lighted, and is heavily traveled with two and three lanes of southbound traffic. In addition, the tracks cross the street at a grade and the view of the tracks, both to the east and to the west of the crossing, is obscured by buildings which are located a short distance from the street and the tracks . . . At the time of the collision the train was stopped and entirely blocking the street. Defendant had two flagmen or switchmen on the south side of the train where there was no traffic, but none on the north side of the train to warn oncoming traffic. All of the aforedescribed conditions rendered the crossing more than ordinarily dangerous, and the defendant failed to exercise that degree of reasonable care required commensurate with the conditions existing at and near the afoi'esaid crossing; in addition, the defendant was negligent per se in violating certain city ordinances designed for the protection of the public. Specifically, the defendant was negligent in the following particulars in the operation of its train and the maintenance of the aforesaid crossing:
“(1) In failing to position flagmen, switchmen, or other employees on the north side of the train where they could be seen and could have warned Milo B. Grisamore and others of the presence of the train.
“(2) In failing to have the crossing area and train properly lighted for the view of plaintiff’s husband and other approaching travelers.
“(3) In failing to maintain sufficient and adequate control and warning devices at the crossing to alert plaintiff’s husband and other travelers of the existence of the dangerous crossing and the presence of the train at die crossing.
“(4) In failing to maintain its existing warning device in a safe and proper condition.
“(5) In failing to comply with Wichita City Ordinance 12.04.090 which reads as follows:
“ ‘Standing of cars near grade crossings. Whenever the tracks of a railroad cross a street or highway at a grade, it shall be unlawful to leave any railroad car or engine standing within thirty feet of the roadway unless the crossing is protected by a flagman.’
“(6) In failing to comply with Wichita City Ordinance 12.04.100 which reads as follows:
“ ‘Erection and maintenance of railroad signals.
“(a) At the railroad grade crossing listed in any schedule approved by the Board of Commissioners it shall be the duty of the designated railroad to maintain and operate a clearly visible electrical or mechanical railroad signal of a type approved by the traffic engineer.
“(b) All railroad signals erected in compliance with this section shall be considered as official traffic-control devices.’” (Emphasis supplied.)
The action was brought by the plaintiff for the benefit of the heirs at law of Milo B. Grisamore and was presented in two counts. Count one requested recovery in the sum of $25,000 for the wrongful death. Count two requested recovery in the amount of $3,000 for hospital, medical and funeral expenses, and $10,000 for the decedent’s pain and suffering following the accident until the time of his death.
The defendant demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action.
The trial corn! sustained the demurrer stating only that “the same is hereby sustained.” The plaintiff has appealed.
It would appear from the briefs filed herein that the trial court sustained the demurrer on the grounds that the petition (a) failed to state facts showing that the defendant was guilty of actionable negligence, and (b) alleged facts showing that the plaintiffs cause of action was barred by the contributory negligence of the deceased.
It might be helpful if we first consider the general principles of law that should guide us in the determination of the issues presented. No general rule of law is available from which the rights and liabilities growing out of all accidents occurring at railroad crossings may be determined. It necessarily results that each individual case must be determined on its particular conditions and circumstances. As was stated in Drake v. Moore, 184 Kan. 309, 315, 336 P. 2d 807:
“. . . There are, of course, certain fundamental principles of law applicable to negligence actions generally, but in the final analysis the facts of each particular case determine its decision when tested by those principles. (Goodloe v. Jo-Mar Dairies Co., 163 Kan. 611, 617, 185 P. 2d 158; and Townsend, Administrator v. Jones, supra.)”
It may be suggested, for the purpose of avoiding two separate discussions, that the same decisions will give us general rules for determining both the negligence of the railroad and the contributory negligence of the driver of the vehicle at the crossing. The duty of a railroad to a motorist approaching a crossing is directly affected by the care required of the motorist. If the motorist would have been able to see the hazard had he looked and been able to avoid the collision had his automobile been in proper condition and under proper control, the railroad has no obligation which could result in its negligence.
It was stated in Jones v. Atchison, T. & S. F. Rly. Co., 129 Kan. 314, 282 Pac. 593, on page 315:
“. . . The railway company’s duty extended no further than to exercise reasonable care, and it was not required to foresee that on one night of a period of history the driver of a lawfully equipped and operating truck might be so completely engulfed in the Cimmerian darkness, impenetrable fog and dense train-engine smoke that he could not apprehend a train was there, and take the extraordinary precautions necessary to protect him from projecting his truck against the side of the train.” (Emphasis supplied.)
A railroad company need not anticipate that a motorist will be negligent. If the conditions and circumstances are such that a motorist exercising due care in the operation of a properly equipped vehicle will see the railroad cars standing on a crossing in time to avoid an accident the railroad may assume that the operator will do so and it is not required to take precautions to avoid such a collision. It has a right to make a reasonable use of a crossing, and ordinarily the presence of a train on the crossing is of itself an adequate warning to a driver of a vehicle on a highway and special safeguards need not be employed in the absence of unusual surroundings, conditions and circumstances. In Harmon v. Atchison, Topeka & S. F. Rly. Co., 171 Kan. 403, 411, 233 P. 2d 489, it was stated:
“We think the location of this sign had no causal connection with the accident. The rule is well stated in Corkill v. Thompson, 169 Kan. 38, 217 P. 2d 273, where it was held:
“ ‘The purpose of highway signs or signals indicating a railroad crossing is to warn of approaching trains and not of trains already occupying the crossing.’ ”
In Jones v. Atchison, T. & S. F. Rly. Co., supra, it was stated on page 315:
“The petition alleged that when the accident occurred it was long after sunset, it was dark, there was fog, there was dense smoke from the engine of the train, and tire railway company did not provide signal lights or other warning that the highway was obstructed by the train. There was no allegation that there was anything peculiarly dangerous about the crossing which made it reasonably necessary for the railway company to have gates, or lights, or a gong, or a watchman at the crossing, to warn highway users against attempting to cross. It was just dark and foggy and smoky. There is no statute which requires a railway company to warn travelers there is a freight train across the highway when those conditions exist, and a railway company rests under no common-law duty to take such precautions for the benefit of drivers of auto vehicles.” (Emphasis supplied.)
Although railroads are not insurers of the safety of persons approaching their tracks for the purpose of crossing, they must exercise due care for the safety of travelers at public crossings. This anticipates the exercise of ordinary care depending on the situation and surroundings at the crossing. Unusual dangerous conditions prevailing at the crossing may require the railroad to anticipate that the mere presence of the train standing thereon will not adequately warn users of the highway. Such special conditions may create an unusual hazard making additional warnings necessary.
Where a crossing is unusually dangerous such reasonable care must be exercised by the railroad as common prudence dictates. Where a standing train is blocking a crossing it is under a duty to use reasonable means to warn and avoid injury to the traveling public. The character of the means will depend on the particular conditions and circumstances surrounding the crossing. . A railroad may be liable for injuries received by a motorist colliding with a railroad car on a crossing where normal headlights do not reveal the obstruction or where a trap is created by an illusion of safety revealed by the headlights.
The rules that a motorist who drives into a railroad car standing on a crossing, which was not unusually dangerous, is guilty of contributory negligence is an application of the rule that a driver of a motor vehicle must correlate his speed with his ability to stop within the range of his vision. (Jones v. Atchison, T. & F. Rly. Co., supra; Sheets v. Baldwin, 146 Kan. 596, 73 P. 2d 37.) The rule as applied to railroad crossing accidents must therefore be subject to the qualifications or exceptions applied to highway collisions which we have recognized. In Drennan v. Penn. Casualty Co., 162 Kan. 286, 289, 176 P. 2d 522, it was stated:
“Furthermore, we have recognized qualifications or exceptions to the general rule that a driver must be able to stop his car within the clear distance ahead. For instance, if he is confronted with a sudden emergency not of his making— such as the sudden entrance of another car from a side road—it would be wholly unreasonable to say, and we have not said, that negligence is shown, as a matter of law, if he is unable to stop his car in time to avoid a collision. It is perhaps inaccurate to say that such situations constitute exceptions to the rule. It might be more accurate to say that the rule was never intended to apply except to situations which an ordinarily prudent man would or should anticipate. . . .” (Emphasis supplied.)
In Sponable v. Thomas, 139 Kan. 710, 719, 33 P. 2d 721, in holding the plaintiff not guilty of contributory negligence, it was said:
“Was the plaintiff guilty of contributory negligence? The argument is based on the propostion that he was not driving at a rate of speed that would enable him to stop within the distance he could see objects ahead of him. The evidence showed that the plaintiff’s car was equipped with standard lights, which were in operation, and that the beam or ray of light showed forward focusing on the ground about thirty feet ahead of the car, and that the lights were about thirty-six inches above the ground; that the tivck was unpainted and a dark, drab color; that it had no lights, either tail or other lights at the rear, nor were there any flaxes or other lights to warn of its location, and that the lower portion of the back end of the truck was about forty-seven or forty-eight inches above the ground. . . .” (Emphasis supplied.)
We recognized the same exceptions or qualifications in Drake v. Moore, supra, page 314, where we said:
“. . . Decedent, while driving down the highway on a dark, rainy night, collided with the rear end of a semi-trailer and truck that stood squarely in the middle of the traffic lane in which he was driving. There were no lights burning on the truck or trailer to warn oncoming motorists of such obstruction, as is required by law. The rear end of the trailer was a dull, drab and .dirty color, making it difficult to be seen at night. The truck and trailer were stalled on an incliné and the trailer was so high above the pavement level that it was above the range of decedent’s headlights; as a result, the obstruction could not be seen until he was too close to avoid the collision.
“Under these facts and circumstances and in view of the presumption that decedent exercised due care for his own safety, it is clear that reasonable minds could differ on the question of whether decendent was guilty of contributory negligence. It was therefore a question of fact for the jury. Moreover, decedent, proceeding along the highway, had a right to assume there were no hidden, undisclosed defects, such as an unlighted truck, standing in the path of travel. . . (Emphasis supplied.)
We also recognized further qualifications and exceptions to the rule in Winfough v. Tri-State Insurance Co., 179 Kan. 525, 528, 297 P. 2d 159, where it was held that the trial court erred in sustaining a demurrer to the petition where the issues were stated as follows:
“. . . He next contends that under the circumstances alleged as to the color of the parked truck and the fact he came on it after coming over the crest of a hill, and other allegations, he was not bound by the rule that one operating his vehicle in the nighttime must have it under such control he can stop it within the range of his lights and that the rule does not apply where the obstruction is of such a character and so placed that a driver of a motor vehicle properly equipped with lights and brakes, driven at a reasonable speed, is unable to see the obstruction in time to avoid colliding with it. Hayden v. Jack Cooper Transport Co., 134 Kan. 172, 5 P. 2d 837; Womochil v. List & Clark Construction Co., 135 Kan. 695, 11 P. 2d 731; Deardorf v. Shell Petroleum Corp., 136 Kan. 95, 12 P. 2d 1103; Frakes v. Travelers Mutual Cas. Co., 148 Kan. 637, 84 P. 2d 871; and Towell v. Staley, 161 Kan. 127, 166 P. 2d 699, cited by the appellant support the contention as made. . . .”
Also in Hayden v. Jack Cooper Transport Co., 134 Kan. 172, 5 P. 2d 837, this court considered contributory negligence where a motorist rammed into a low trailer which was dark in color and held:
“The rule that one driving an automobile in the nighttime must so operate his car that he may stop it within the range of vision of his headlights, is applicable in cases where vehicles or other objects on the highway may be seen by the aid of proper lights, but where an obstruction was of such a character and so placed that a motorist driving his car properly equipped with lights and brakes, at a moderate speed, is unable to see an obstruction in time to prevent colliding with it, and is otherwise free from negligence, he cannot be held guilty of contributory negligence as a matter of law.” (Syl. 1.)
It would appear from the foregoing cases that where a crossing is unusually hazardous the question of whether a driver of a motor vehicle is guilty of contributory negligence is a question of fact if the rays from the headlights are absorbed by the color of a standing railroad car; if there is a blending of the train with the street or general background; if the vision of the motorist approaching the crossing is affected by street lights near the crossing or on opposite side of crossing, or where the railroad car was on a grade so that the light beams projected under and past standing cars.
We would receive but little assistance from the numerous conflicting cases from other jurisdictions. The issues have been determined by our own decisions. However, those wishing to research the decisions of courts of other juridictions may see 74 C. J. S., Railroads, § 710, et seq., and the extensive annotation in 84 A. L. R. 2d 813, et seq.
Considering, as we are compelled to do, that the demurrer admits all facts well pleaded; that the allegations of the petition must be liberally construed in favor of the pleader, and all inferences to be drawn therefrom must be indulged in his favor (Carpenter v. Strimple, 190 Kan. 33, 372 P. 2d 571; Redmond v. Meier, 192 Kan. 730, 391 P. 2d 39), we cannot say as a matter of law that the petition fails to state a cause of action.
Plaintiff may have assumed a heavy burden when she undertook to prove the material allegations of the petition but the law gives her the opportunity to try.
The petition alleges that:
“. . . All of the aforedescribed conditions rendered the crossing more than ordinarily dangerous, and tire defendant failed to exercise that degree of reasonable care required commensurate with the conditions existing at and near the aforesaid crossing; . . .”
This is a necessary allegation if a petition for damages resulting from injury at a railroad crossing is to be sustained as against a demurrer.
The conditions which it was alleged rendered the crossing more than ordinarily dangerous consisted of a poorly lighted, heavily Raveled one-way street with two and three lanes of Raffle; the Racks crossed the street at a grade and the view of the Racks both to the west and east were obstructed by buildings which are located a short distance from the street.
Whether the surrounding conditions did, as alleged in the petition, render the crossing more than ordinarily dangerous is a quesüon of fact which plaintiff must establish by her evidence if she is to be successful in her action.
The petition alleges that the negligence of the defendant consisted of failure to maintain sufficient lights and warning signals; failure to properly position flagmen, and failure to comply with city ordinances as to flagmen and mechanical or electrical railroad signals. These matters also present questions of fact once the evidence establishes that surrounding conditions render the crossing more than ordinarily dangerous.
Appellee relies on Eason v. Missouri Pacific Rld. Co., 191 Kan. 39, 379 P. 2d 351, and cases therein cited in support of the order sustaining the demurrer. The case is readily distinguishable from the case now before us for decision. The material allegations of the petition in the Eason case were quoted in the opinion and it is disclosed that there was no allegation that the crossing was unusually dangerous. This constituted a fatal defect. If the crossing was not unusually dangerous the railroad owed no particular duty to a motorist attempting to cross the tracks.
The Eason case followed Jones v. Atchison, T. & S. F. Rly Co., supra, where this court in concluding that a demurrer was properly sustained to the petition stated: . . There was no allegation that there was anything peculiarly dangerous about the crossing . . .” (p. 315.)
Our attention is also called to Bledsoe v. M.-K.-T. Rld. Co., 149 Kan. 741, 747, 90 P. 2d 9, where it was stated:
“Plaintiffs further contend that whether a railroad crossing is unusually dangerous is a question of fact for the jury, citing 3 Blashfield’s Cyclopedia of Automobile Law and Practice, Per. ed., p. 200, and cases collected in the annotation 16 A. L. R. 1277. This is true only when there is substantial, competent evidence that the crossing is unusually dangerous. Unless such evidence is produced the question is one of law for the court. The authorities on this point do not go so far as to authorize allegations to be made respecting any railroad crossing to the effect that it is unusually dangerous, and because of such allegations to say that the question is one for the jury. Examining the evidence in this case, we are unable to find anything that would justify a classification of the crossing in question as being unusually dangerous . . .” (Emphasis supplied.)
The Bledsoe case is simply authority for the general rule that the plaintiff must not only plead but must also prove that the crossing was unusually dangerous.
The same rule was followed in Corkill v. Thompson, 169 Kan. 38, 40, 217 P. 2d 273:
“. . . The rule is that the question of whether a railroad crossing is unusually dangerous is a matter of law unless substantial, competent evidence of its dangerous character is introduced (Bledsoe v. M-K-T Rld. Co., 149 Kan. 741, 90 P. 2d 9, and authorities cited therein). The evidence does not disclose that the crossing was unusually dangerous. . . .”
Both the Bledsoe and the Corkill cases were dealing with the sufficiency of the evidence to establish that the crossing was unusually dangerous after the cases had been tried on the pleadings. The sufficiency of the petitions was not questioned.
We are forced to conclude that, measured by the rules of law announced herein, the allegations of the petition were sufficient to constitute a cause of action as against a demurrer.
The judgment is reversed.
APPROVED BY THE COURT.
Parker, C. J., and Price, J., dissent. | [
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The opinion of the court was delivered by
Kaul, J.:
The Motor Vehicle Department of the State Highway Commission of Kansas, referred to hereinafter as the Department, has perfected this appeal from a judgment of the District Court of Kingman County, setting aside an order of the Department revoking the motor vehicle operator’s license of Jerry R. Hazlett, appellee.
The parties agree, in substance, that the question involved is: Did the appellee, Jerry R. Hazlett, have reasonable grounds for his refusal, if there was a refusal, to submit to a chemical test of his blood as provided for in K. S. A. 8-1001, which reads as follows:
“Consent to submit to chemical test deemed given, when; administration of test; procedure upon refused to submit to test. Any person who operates a motor vehicle upon a public highway in this state shall be deemed to have given his consent to submit to a chemical test of his breath, blood, urine, or saliva for the purpose of determining the alcoholic content of his blood whenever he shall be arrested or otherwise taken into custody for any offense involving operating a motor vehicle under the influence of intoxicating liquor in violation of a state statute or a city ordinance and the arresting officer has reasonable grounds to believe that prior to his arrest the person was driving under the influence of intoxicating liquor. The test shall be administered at the direction of the arresting officer. If the person so arrested refuses a request to submit to the test, it shall not be given and the arresting officer shall make to the vehicle department of the state highway commission a sworn report of the refusal, stating that prior to the arrest he had reasonable grounds to believe that the person was driving under the influence of intoxicating liquor. Upon receipt of the report, the vehicle department of the state highway commission shall suspend for a period not exceeding ninety (90) days the person’s license or permit to drive or nonresident operating privilege and, after granting the person an opportunity to be heard on the issue of the reasonableness of his failure to submit to the test, the vehicle department of the state highway commission may revoke the person’s license or permit to drive or nonresident operating privilege.”
Jerry P. Hazlett was arrested by Trooper Glen R. Clopton of tbe Kansas Highway Patrol on December 14, 1963, at a point about one and one-half miles west of Cunningham, Kansas, on U. S. Highway 54, and charged with driving a vehicle while under the influence of intoxicating liquor. While enroute to the sheriff*s office in Kingman, Trooper Clopton requested appellee to submit tO' a blood test. The request was refused and no reason for the refusal was given. Trooper Clopton did not advise appellee as to the consequences of his refusal.
When Trooper Clopton and the appellee arrived at the sheriffs office they were met by Trooper Richard Roberts of the Kansas Highway Patrol. Trooper Roberts testified that when he met Trooper Clopton and appellee at the sheriff’s office that appellee was staggering, had an odor of alcohol on his breath and was loud and boisterous. Trooper Roberts testified on direct examination that he asked appellee two or three times to submit to the test but that he would not assent to the request and he did not submit to the test.
Trooper Roberts further testified that he advised appellee of the consequences of his refusal. The testimony of Trooper Roberts on this point on cross-examination is as follows:
“Q. Do you remember everything that you say to everybody every time you pick them up?
“A. No, sir. .
“Q. Is it possible that you might be mistaken as to advising him of the consequences of his refusal?
“A. I suppose it’s possible but not probable.”
Trooper Clopton subsequently submitted a sworn report of refusal to the department and appellee’s license was suspended for a period not exceeding 90 days in accordance with the provisions of the statute.
At the request of appellee a hearing was had in Kingman by an examining agent of the department. The examiner found that appellee did not have reasonable grounds to refuse to submit to a blood alcohol test and that his driver’s license should be revoked for a period of one year.
Thereafter appellee filed his petition in the District Court of King-man County, Kansas, as provided for in K. S. A. 8-259. In his petition, appellee relates the facts as stated herein and alleges that his refusal to submit to the chemical blood test was reasonable. The prayer of the petition asks that the order of the Department be set aside and that judgment be entered directing that petitioner is entitled to a license to drive vehicles in Kansas.
Issues were joined, a trial was had to the court and judgment entered for the petitioner. Thereupon the Department perfected this appeal.
In the memorandum opinion filed herein, the trial court stated that it based its findings and decision on two general grounds:
“First, it seems to me that before a licensee should be charged with the statutory consequences of refusal to submit to a test to determine the alcoholic content of his blood, it should be clearly established that he did knowingly and understandingly so refuse. In view of the evidence adduced it seems doubtful if he really understood what he was doing; Secondly, in a case like this one where the subject was so apparently drunk, rather than just in the under the influence’ stage, G. S. 1961 Supp., 8-1001, really serves no useful purpose. The officers here didn’t need a positive result to bolster their evidence and considering the testimony of the officers as to the condition of the subject, I doubt if the receipt of a negative result would or should have had any real influence on the matter of prosecution or verdict of a jury or decision of the Court as a result of prosecution.
“Thus the reasoning of the Supreme Court in Lee v. State, 187 Kan. 566, to the effect that the test is a protection to the subject has no significance in a case where there seems to be no contention that the appellant was anything other than under the influence.
“In short, I find that the refusal, if indeed there was a refusal of the accused to take the test, was reasonable in that he, the accused, was in such a state of intoxication that he did not understand the consequences of such a refusal and, further, that the refusal to take the test when such test would have served no useful purpose, was not unreasonable.”
First, the apparent question of whether there was a refusal should be disposed of. This is readily accomplished not only by the testimony of the two troopers to that effect but by testimony of appellee as well. On direct examination by his own attorney the appellee testified:
“Q. Why did you refuse the blood test?
“A. I was not aware of the consequences if I did refuse the blood test and I thought I was just probably condemning myself if I did take the alcohol test, I didn’t realize the law states the way it does.
“Q. You mean you felt if you took the test under your present condition you might fail the test?
“A. Yes.”
In fact the appellee clearly admits a refusal in his petition filed in the district court. He states in his petition, “That this petitioner refused the request to submit to a chemical test of his blood, but had he known or been aware of the consequences of his refusal to so submit, he would not have refused the requested test.”
The record clearly reveals that appellee not only refused to submit to the test but he did so knowingly.
Counsel for appellee argues that it was reasonable for appellee to refuse to submit to the test on two grounds: that he was not advised of the consequences and that he was so intoxicated he was unable to understand even if he were so advised. It is our judgment that neither ground can be maintained.
In the first place a careful scrutiny of the statute K. S. A. 8-1001, and related statutes contained in article 10 of chapter 8, K. S. A., fails to reveal any mandate directing the arresting officer to inform the accused of the consequences of refusal.
This question was the subject of inquiry before the Supreme Court of Nebraska in Prucha v. Department of Motor Vehicles, 172 Neb. 415, 110 N. W. 2d 75, 88 A. L. R. 2d 1055. In construing a Nebraska statute substantially the same as that of Kansas, as to the points and issues raised herein, the court stated:
“The general rule is that all persons are presumed to know and are bound to take notice of general public laws of the country or state where they reside as well as the legal effect of their acts. See, 20 Am. Jur., Evidence, § 211, p. 208; Anderson v. MacDuff, 208 Misc. 271, 143 N. Y. S. 2d 257; People v. Kovacik, 205 Mice. 275, 128 N. Y. S. 2d 492.
“The language of the statute is clear and there is nothing on its face that requires the police officer to go any further than request the motorist to submit to the test. When the words of the statute are plain, clear, and distinct there is no occasion to resort to other means of interpretation to restrict or extend the meaning. The petitioner is presumed to know the law and he should acquaint himself, at least, with those laws which would affect him. See Anderson v. MacDuff, supra.
“The allegation of the plaintiff that he was not fully advised of the consequences of his failure to comply with the statutes does not state facts sufficient to constitute a cause of action.”
There is no authority cited nor persuasive reasoning stated by •counsel for appellee, by which we would be constrained to write something into the statute not included by the legislature, i. e., a direction to the arresting officer to explain the consequences of refusal.
Our view on this point is consistent with decisions involving statutes similar to K. S. A. 8-1001 in New York, Anderson v. MacDuff, supra, People v. Kovacik, supra, and in North Dakota, Timm v. State, N. D. 1961, 110 N. W. 2d 359, 88 A. L. R. 2d 1070. In Timm v. State, the Supreme Court of North Dakota held that the question of whether the person was informed that his privilege to drive would be revoked or denied if he refused to submit to such a test was not an issue in a hearing before the state highway commissioner.
Under the view which we have expressed, the proposition submitted by appellee that he may have been too intoxicated to understand the consequences of refusal, even if explained to him, can be disposed of on the grounds that it is immaterial since there is no duty placed on the arresting officer to explain.
We next turn to the second ground on which the trial court based its findings and conclusions, i. e., that the refusal to take the test, when such test would have served no useful purpose, was not unreasonable.
In consideration of this point, it appears that the trial court failed to recognize the marked distinction between a proceedings under K. S. A. 8-259, such as the case at bar, and a criminal prosecution on a charge of driving while under the influence.
The relationship between a proceeding such as this and a prosecution for driving while under the influence of intoxicating liquor was discussed at length and in detail in the recent case of Marbut v. Motor Vehicle Department, 194 Kan. 620, 400 P. 2d 982. It was stated in the opinion at page 622:
“The nature of the two proceedings are entirely separate. One (8-530, supra) is a criminal prosecution for the violation of a criminal statute prohibiting driving while under the influence of intoxicating liquor. The other (8-1001, supra) is a civil proceeding to determine whether the appellee acted reasonably in refusing to submit to a blood test as a prerequisite to the privilege of using the public streets and highways.”
From the distinct and separate nature of the two proceedings it is clear that whether or not the results of the chemical test would have served a useful purpose in a prosecution for driving while under the influence is not an issue to be resolved in a proceeding to determine the reasonableness of a refusal to submit to the test. It follows that the contention that the results of the chemical test would serve no useful purpose cannot be sustained as a reasonable ground for refusal to submit to the test.
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The opinion of the court was delivered by
Harman, C.:
Appellant was the plaintiff in an action commenced in the district court, denominated by him as one to impress a trust on funds to become due under a real estate contract of sale, which proceeding he states does in one action what would other wise require several actions. He appeals from the trial court’s order sustaining defendant’s motion for summary judgment.
The pertinent facts may be stated as follows:
In 1950 William S. Baird, the owner of certain land in Saline County, Kansas, duly entered into an ordinary contract of sale for such land with one Vanier, naming The Farmers National Bank, now The First National Bank and Trust Company, Salina, Kansas, as escrow holder thereof. The contract provided for an initial down payment and annual payments thereafter until said contract should be paid. According to its terms the final annual payment would be made in 1966 if all payments were promptly made and they appear to have been so made. The seller, William S. Baird, was a brother of Catherine M. Baird and R. A. Baird. Prior to 1954 William S. Baird died testate in Saline County, Kansas, and through his will, duly probated in that county, Catherine received the one-third interest in the real estate contract which is the subject of this action. Thereafter, and on April 1, 1954, Catherine conveyed by written assignment unto R. A. Baird all of her interest in said contract. On July 18, 1954, Catherine died testate, a resident of Saline County, Kansas. It should be pointed out that the two principal beneficiaries named in Catherine’s will were Catherine’s brother, R. A. Baird, and her niece, Joan Crowther, now Joan Crowther Burns, these two to share equally after a few minor bequests.
A petition to probate Catherine’s will was promptly filed in the probate court of Saline County and although promptly set for hearing, due to numerous continuances, it was not actually heard until June 12, 1958, nearly four years later. These continuances were granted upon the request of Joan Crowther and her sister, whose attorneys were their brother, plaintiff here, and their father, W. B. Crowther, now deceased. The executor named in the will, C. L. Clark, declined to serve, it appearing there was considerable dissension in the Baird family. Nothing whatever was done about apointing a representative for the estate until November 18, 1963— more than five years after the order admitting the will to probate— when plaintiff was appointed administrator c. t. a.
Meanwhile, and on December 18, 1962, R. A. Baird died testate, a resident of the state of California.
On January 13, 1964, plaintiff commenced this action, as administrator c. t. a. of Catherine’s estate. His amended petition alleged the execution of the William S. Baird-Vanier contract of sale, its de posit with the bank, that three installments thereunder remain due, and that these funds should be impressed with a trust in favor of the Catherine M. Baird estate. He named as defendants R. A. Baird; Norman L. Favors, as executor of the will of R. A. Baird; James P. Mize, trustee for R. A. Baird; James P. Mize, trustee; Norman L. Favors, trustee for R. A. Baird; Norman L. Favors, trustee; Norman L. Favors; and the bank. Norman L. Favors’ residence was alleged to be in the state of California. Plaintiff’s claims against all of the named defendants are not at all clear. However, he did allege that James P. Mize received a portion of the escrow contract proceeds and that Norman L. Favors was the sole beneficiary of the R. A. Baird estate.
From the above recital it will be seen that plaintiff’s action in reality is to make recovery for Joan Crowther Burns.
It should be stated at this point that in neither his petition nor in the amended petition did plaintiff mention in any way the assignment of the sale contract made by Catherine to R. A. Baird ■on April 1,1954.
In due time the bank and the other named defendants filed their separate answers. The bank admitted that it was the escrow agent named in the original sale contract, and that subsequent to the date thereof, Catherine acquired one-third of William S. Baird’s interest therein pursuant to his will; it further alleged that later a written assignment of Catherine’s interest, marked exhibit “B,” was delivered to it, and it thereafter received another assignment, marked exhibit “C,” whereby R. A. Baird purported to assign forty percent of the one-third interest in the sale contract to James P. Mize; and further, that the bank has disbursed all proceeds from the sale contract pursuant to its terms and the aforesaid assignments.
For their answer the other defendants denied that the court had any jurisdiction over them, save as to James P. Mize; that the amended petition failed to state any claim upon which relief could be granted plaintiff against these defendants; they specifically denied that Catherine owned any interest in the BairdVanier contract at any time after April 1, 1954, on which date she assigned all her interest therein to R. A. Baird by the written assignment attached to the bank’s answer; defendants further answered that R. A. Baird died testate in Fresno, California, on December 18, 1962, and that thereafter his will was duly probated and the estate administered in the Superior Court of California in and for the County of Fresno; that no claim was filed there by plaintiff or by anyone on behalf of Catherine’s estate and that such) claim is barred by the nonclaim law of the state of California, and further, that plaintiff’s claim is now barred by our two year statute of limitations (K. S. A. 60-513) and by our one year nonclaim statute. (K. S. A. 59-2239.)
Plaintiff then filed what he termed a “Denial” in which he stated that the purported written assignment, attached as exhibit “B” to' the bank’s answer, “. . . is void ah initio and all parties hereto are on notice of said fact.”
Thereafter, defendants (except the bank) filed their request that plaintiff admit the truth of the following:
“(1) On April 1, 1954, plaintiff’s decedent, Catherine Baird signed the assignment, copy of which is attached hereto, and delivered same to R. A. Baird,, and to The First National Bank and Trust Company of Salina (then The Farmers National Bank).
“(2) The foregoing assignment has never been canceled or set aside.
“(3) R. A. Baird died December 18, 1962.
“(4) No executor or administrator of the estate of R. A. Baird has been-appointed in any probate court of Kansas, nor has the alleged claim, being asserted by plaintiff in this action, been filed or exhibited as a demand in any-proceeding probating the estate of R. A. Baird, deceased.”
Attached to such request was a copy of the assignment pleaded! in the bank’s answer.
Plaintiff responded to this request for admission of facts as follows:
“Comes now plaintiff herein and to defendants, except The First National: Bank and Trust Company of Salina (then The Farmers National Bank) ‘Request to Plaintiff to Admit Facts’ and denies that Catherine Baird delivered to-The First National Bank and Trust Company of Salina (then The Farmers-National Bank) the purported assignment marked ‘Exhibit B’ in the answer of defendant The First National Bank and Trust Company of Salina signed by her or any other purported assignment and plaintiff hereby specifically denies-that she ever made such delivery to The First National Bank and Trust Company of Salina (then The Farmers National Bank).
“Other than this denial of fact, plaintiff admits the facts of said request.”' (Our italics.)
The statement was not sworn to by plaintiff.
At this point it should be noted that although the response (not sworn to as required by K. S. A. 60-236 [a]) denied delivery of the-assignment to the bank, it did admit execution and delivery to R. A. Baird and that the instrument had never been cancelled or set aside..
Both plaintiff and defendants filed motions for summary judgment together with affidavits. The trial court sustained defendants’ motion and overruled plaintiff’s motion.
Plaintiff has appealed contending the trial court erred (1) in requiring plaintiff “to plead the assignment that was an affirmative defense pleadable by defendant” (2) in sustaining defendants’ motion for summary judgment because there was no delivery of the assignment, and (3) in ruling that “this action is barred by the statutes of limitations.”
Plaintiff’s first contention to the contrary, it is clear the court did not at any time require plaintiff to plead the assignment in question. As heretofore stated, plaintiff did not mention it in either of his petitions. The defendants first pleaded the assignment. Then defendants served plaintiff with a request for admission of facts concerning it and other matters. Certainly the assignment was a “relevant” matter of fact as contemplated by the statute (K. S. A. 60-236 [a]) and defendants were entitled to inquire as to plaintiff’s position thereto. Plaintiff made no objection and, in fact, responded to the request.
Plaintiff’s second contention, respecting delivery of the assignment, goes to the crux of the lawsuit as it is now presented to this court for appellate review. When defendants pleaded in their answer the assignment of the subject matter of this action by Catherine to R. A. Baird, plaintiff replied in his pleading, called “Denial,” that the assignment was void. The only reason given by plaintiff for his contention the assignment was void, as set out in his statement of points in the record on appeal, and also as urged in his brief, is that the assignment was not delivered to the assignee, R. A. Baird. Plaintiff completely overlooks the fact he expressly admitted the delivery of the assignment to R. A. Baird in his response to defendants’ requested admissions of fact. True, there were affidavits submitted by both sides at different stages in the proceedings, but these affidavits raised no issue of fact respecting the delivery of the assignment to R. A. Baird, which fact, along with the others herein-before set out, plaintiff expressly admitted.
Before plaintiff can recover herein, he is faced with the necessity of getting rid of the assignment since the assignment extinguished the interest of Catherine in the sale contract and he, as personal representative, can have no greater right to recover than his decedent would have, if living. (21 Am. Jur., Executors and Administrators, § 896, p. 874.) He now supports his bare conclusion in his “Denial” that the assignment was void by saying in his statement of points and in his brief that it was not delivered to R. A. Baird. This is the only ground urged for voiding the assignment and this court is, therefore, limited in its consideration of the validity of the assignment to this single issue. Other matters are suggested in an affidavit filed by plaintiff as to why Catherine’s assignment might have been considered void. However, no issue based thereon is set forth in plaintiff’s statement of points, and therefore may not be considered on appeal by this court.
Rule No. 6 (d), 191 Kan. xiv, of this court, promulgated in accordance with long-established rules of appellate review, provides:
“(d) Statement of Points. Each appellant shall serve and file with his designation of the record a concise statement of the points on which he intends to rely and which will be briefed in the appeal. The points shall be without duplication, and each point shall state a particular and ultimate issue with reference to which reversible error is claimed to have been committed, but only such detail is required as will (1) enable opposing parties to judge the sufficiency of the designated record on appeal, and (2) inform the Supreme Court of the specific issues to be considered. A mere statement that a ruling was against the appellant without specifying what issue was-involved in such ruling will not be an adequate statement of a point (e. g., that a motion for summary judgment, or directed verdict, or modification of a judgment was overruled), unless it is further stated on what legal or factual' issue such ruling was erroneous. An issue may be raised in die statement of points regardless of whether a motion for a new trial was filed; but no-issue, other than an issue going to the jurisdiction of the court over the subject matter of the litigation, may be briefed or will be considered on the appeal unless included in the statement of points.” (Our italics.)
Plaintiff having admitted the delivery of the assignment to R. A. Baird, the assignment is left standing, determining this lawsuit, and', making the trial court’s disposition the proper one.
Parenthetically, and beyond the foregoing which is dispositive,, it is noted that the record reveals plaintiff and his beneficiary, Joan Crowther Burns, knew of the assignment of the contract at least as early as November 15, 1954, yet did nothing about it in anyway until defendants presented it as an issue in this case, nearly ten years later.
In view of the disposition made and for the further reason the-record on appeal is not clear thereto, it is not necessary to review plaintiff’s third contention with respect to statutes of limitations.
The judgment is affirmed.
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The opinion of the court was delivered by
HobtoN, C. J.:
Upon the trial, the defendants produced as a witness one D. L. Nesbit, who testified, among other things, “that he had been in the grocery business for twenty years; that he knew the stock of groceries kept by Kimbrough <fc Trice, who failed in April or May, 1881, and whose stock of groceries was subsequently purchased by Green Cavender; that he went through the stock and examined it; that it was old and shelf-worn; that he did not consider the stock worth to exceed fifty cents on the dollar.” He then stated that he knew the prices generally of groceries. Pie was requested to examine the bill of goods bought by the defendants, and after looking over the same, testified “ that he thought he knew what the market value of some of the goods was.” He further testified “that he could not state the value of the coffee, mackerel, tea, starch and tobacco, because there are different grades of such goods, and the bill did not show what grades they were; but he knew the prices of the different grades of those kinds of goods.” The plaintiff then objected to evidence of value, because incompetent and irrelevant, and be cause tbe market value was within the reach of all; and further, because the stock of groceries sold to the defendants was old, and the witness was permitted to testify as to the value of new goods. There was no error in the admission of this evidence. Nesbit had seen and examined the goods in stock — not the particular goods furnished, but the general stock — and was a competent witness concerning the valué of the same.
The answer alleged that Green Cavender “ represented to the defendants that his goods in stock were fresh, and of first-class quality, and that, as he was about going out of the grocery trade, he would sell the defendants a stock of goods suitable for their trade at prices greatly below the current cost prices, and greatly lower than the defendants could obtain the goods elsewhere.” As the defendants further alleged in their answer that they relied upon these representations in accepting the stock of groceries shipped them, and in executing their notes therefor, the value of the stock sold was a material issue in the case, and the concession by the plaintiff that the stock selected, put up, billed, and shipped out by Green Cavender to the defendants was an old one, is very favorable to the claim of the defendants.
The case of Graffenstein v. Epstein, 23 Kas. 443, is cited that evidence of the market value of the stock of goods shipped ought not to have been received. That case is not in point. The principle recognized in that case is that—
“A misrepresentation as to the market price of an article of general commerce, made falsely and fraudulently by one party to induce a sale, and relied upon by the other, will not avoid a contract therefor, when there are no circumstances making it the special duty of the one party to communicate the knowledge he possesses, and none giving him the peculiar means of ascertaining such market price.”
Here the seller agreed to sell a stock of staple groceries suitable for the defendants’ trade, of first-class quality, at prices greatly below the current rates for such goods. The defendants- relied upon these representations, and permitted the seller to select and ship the goods. Therefore, evidence tending to show that the stock of goods had been fraudulently billed, and charged at current rates, and in some instances above current rates, was relevant. (Lord v. French, 61 Me. 420.)
It is claimed that the court committed error in giving and refusing instructions. The third instruction asked for was properly refused, because it virtually took the case away from the jury and directed a verdict for the plaintiff without regard to the defense made in the action. The fourth instruction asked for ought not to have been given, because it did not embrace the law of the case. (Lord v. French, supra.) The fifth instruction asked for and refused was to the effect that if Green Cavender and the defendants had a settlement about their matters in dispute, and if the note in controversy was given in pursuance of such settlement, the defendants were bound by the settlement, except for mistake or fraud. The sixth instruction was fully covered by the charge of the court, in the following language:
“It also appears that on or about June 15, 1882, the defendants took up said promissory note of $517.07, given January 2, 1882, and gave to said Green Cavender the instrument in controversy, and also another instrument, being a promissory note for $278.16, dated June 15, 1882, and payable .fifteen days after date, with interest at ten per cent, per annum after maturity. Said Green Cavender claims that these two instruments were given to take up said note of January 2, 1882, and also to settle all accounts between him and the ■ defendants up to said time. If you find that such was the case, and that plaintiff has succeeded to the rights of Green Cavender, and that said instrument was intended to be payable in fifteen days, then plaintiff is entitled to recover the full amount of the face of said instrument, with interest thereon, unless defendants have shown by a preponderance of evidence that there was a mistake in the computation, or that said settlement was obtained by some fraud or imposition on the part of said Green Cavender. If a mistake was made in the computation, you should correct it in your verdict, if you have evidence sufficient for the purpose; but if you find that the defendants at the time of giving said two instruments and the making of said alleged settlement knew the quality and prices of the goods that they had obtained from said Green Caven-der, and that they were giving said instruments in settlement for the same, then they ought not now to be assisted by the jury in undoing their work and setting aside their settlement on the ground of the quality or the prices of the goods.”
The sixth instruction contained the intimation that Green Cavender agreed to sell the groceries shipped to the defendants at 20 per cent, less than they could be purchased for elsewhere. This instruction was misleading, because the evidence did not fully support it. J. M. Roberson, one of the defendants, testified that Green Cavender “said he would sell the goods to me at from 15 to 20 per cent, less than I could get them elsewhere.” Joseph A. Hamm testified that Cavender said to J. M. Roberson (the purchaser of the goods) “ that he-was closing out, and would sell to him the bill of goods at 15 to 20 per cent, less than ■ he could buy elsewhere, and Roberson said he would buy at these terms, and would leave it to Cavender and me as to what he wanted, and would leave it to-us to select the goods.”
The evidence therefore shows that Green Cavender agreed to sell the stock of groceries charged to the defendants from 15 to 20 per cent, less than they could buy them elsewhere,, but not at 20 per cent. less. The jury evidently followed closely the intimation of the court in their verdict and special findings, because the sixth finding of fact is as follows:
“Question: Did said Roberson rely on said Cavender to put the prices of said goods at 20 per cent, lower than the current rates for such goods from other dealers? Answer: Yes.”
We should also add that there was no statement in the answer-alleging that Green Cavender agreed to furnish goods such as he had in his own stock at 20 per cent, less than they could be purchased for elsewhere. Counsel for defendants object to-the consideration of this instruction and the finding based thereon, because they say the case-made does not purport to-contain all the evidence. The case does, however, show that it contains the substantial parts of the evidence, and we construe this to mean that it contains in substance all the evidence offered upon the trial, although it is not written out in the record in minute detail.
The defendants were not restricted to their right to rescind the' contract and l’eturn the goods. (Weybrich v. Harris, 31 Kas. 92; Lord v. French, supra; Wheeler & Wilson Mfg. Co. v. Thompson, ante, p.491.)
Tt is not necessary to dwell upon the other questions in the case. If the jury had returned in their special findings the actual value of the goods furnished by Cavender to the defendants, we might have corrected the judgment of the district court without reversing the same, by the addition of five per cent, upon the value of said goods; but to question 12, which was as follows: “ What was the actual value of all the goods and property furnished by Cavender to Roberson?” the jury answered, “Can’t tell.”
On account of the erroneous and misleading instruction, which was given without full support of the evidence, the judgment of the district court must be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered, by
HortON, C. J.:
It is contended by the board of county commissioners of Woodson county, that the claim for damages for the location of the public road across the land of the claimant was properly disallowed, for the alleged reason that the action of the board in attempting to lay out and establish the road was wholly without jurisdiction, and therefore void. In support of this, it is urged that as no notice was given to the claimant or to anyone in possession or claiming to have possession or control of the land, nor any finding of any kind made with reference thereto, the board had no authority to take action upon the report of the viewers or to order the road to be opened. Section 4, ch. 89, Comp. Laws of 1879, is referred to, and also the following cases: Comm’rs of Wabaunsee Co. v. Muhlenbacker, 18 Kas. 129; The State v. Farry, 23 id. 731; Comm’rs of Chase Co. v. Cartter, 30 id. 581.
On the other hand, it is answered that the board of county commissioners had jurisdiction of the subject-matter at the time of its action in the premises, although not jurisdiction of the person of the claimant; but that the want of jurisdiction of the person was cured when the claimant requested the payment of her damages in consequence of the opening of the road. The case is said to assimilate to a judgment that has been rendered without service, when the court had jurisdiction of the subject-matter, but on account of the want of service, no jurisdiction of the person. In such a case, the appearance of the party, except to question the jurisdiction, confers jurisdiction and relates back to the beginning of the action. In short, that any want or defect in the service of process is waived by the general appearance of the party, and that such action is the submission in itself to the jurisdiction of the court or tribunal. (George v. Hatton, 2 Kas. 333; Haas v. Lees, 18 id. 449; Walkenhorst v. Lewis, 24 id. 420.) This view is the correct one. As the land-owner can waive the notice prescribed by the statute by presenting his claim for damages, it is too late, after the road has been opened and such claim has been presented, for the board of county commissioners to revoke its action for want of jurisdiction of the person of the claimant. (Ogden v. Stokes, 25 Kas. 517; Comm’rs of Chase Co. v. Allen, 25 id. 616.)
The claimant had notice of the final order of the board locating the road, and thereafter built a lawful fence for one mile on either side of the i'oad. After this action upon her part, and the presentation of her claim for damages, it would be exceedingly unjust to decide that the board of county commissioners should be permitted to deny the validity of its own acts, on account of the want of jurisdiction over the landowner. In this case, everything was done that was necessary for the establishment of the road, excepting the service of the notice upon the claimant, and the board made no attempt to revoke its action until after the claimant had constructed two miles of fence required to be built to leave the road open, and had presented her claim for damages and thereby waived the question of jurisdiction. Under these circumstances, the order of the board in deciding that its action was without jurisdiction was improperly made, and cannot affect the claimant.
The ruling and judgment of the district court in overruling the demurrer will be sustained.
All the Justices concurring. | [
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The opinion of the court was delivered by
Schroeder, J.:
The appellee in this action filed a motion for rehearing, limited to the allowance of attorneys’ fees. We granted a i-ehearing and after hearing oral argument and considering the briefs hied by counsel for the respective parties, we find nothing which warrants a reconsideration of the case and adhere to the former decision and opinion.
The appellee contends “There Is No Evidence to Support This Court’s Finding That Appellant Proved by a Preponderance of the Evidence That Appellee Refused to Pay Without Just Cause or Excuse” as required by the provisions of G. S. 1961 Supp., 40-256 (now K. S. A. 40-256).
The summary disposition of this point in the original opinion was supported by the citation of Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 366 P. 2d 219, where the law on the subject has been fully stated.
The provisions of 40-256, supra, authorize attorneys’ fees only if “it appear from the evidence that such company . . . has refused without just cause or excuse to pay.” This statute requires the insured to prove by a preponderance of the evidence that the insurer refused to pay “without just cause or excuse.”
The evidence required under the statute was discussed in Wolf in the following language:
“Contrary to the appellants’ contention, the statute (40-256, supra) does not say the judgment rendered against the insurance company must be after a trial on the merits. Nor does it seem to us the legislature intended by the expression ‘if it appear from the evidence,’, that a judgment against an insurance company on a policy of insurance be after a trial on the merits. Whether an insurance company has refused without just cause or excuse to pay in accordance with the terms of a policy is an independent issue, and evidence produced to determine this issue need not be at a hearing on the merits of the controversy or coincide with evidence produced at such hearing.” (p. 704.)
Inferentially, the foregoing statement recognizes that the evidence, to determine whether an insurance company has refused without just cause or excuse to pay in accordance with its obligation, may be produced at the hearing on the merits and coincide with the evidence produced at such hearing.
In the instant case the facts upon which the merits of the controversy were determined in the trial court were stipulated by the parties. An analogous situation was presented in Wolf where this court said:
“. . . Here the facts are stipulated and are not in dispute. In this situation the Supreme Court has as good an opportunity to examine and consider the evidence as the trial court to determine whether or not the appellants had just cause to cease making payments. (Keeler Co. v. Atchison, T. & S. F. Rly. Co., 187 Kan. 125, 354 P. 2d 368.)” (p. 706.)
The mere fact that the trial court held in favor of the appellee is not controlling on appeal as to whether or not the surety has refused to pay in accordance with the terms of its bond without just cause or excuse.
On appeal this court held, in accordance with prior decisions, “that the obligations of those signing a statutory contract bond are fixed by the terms of the bond, and if the bond shows an intention to guarantee compliance with the terms of the contract pursuant to which the bond is given, the surety signing the bond becomes the surety for the full performance of all the terms of the contract.” (Thompson Transport Co. v. Middlestates Construction Co., 194 Kan. 52, 59, 397 P. 2d 368.)
The trial court, having been led astray by the appellee, failed to follow these prior decisions, and this court in considering the evidence presented, which consisted entirely of stipulations, found that the appellee refused to pay without just cause or excuse in accordance with the terms of its bond.
Parker, C. J., Price and Fontron, JJ., dissenting. | [
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The opinion of the court was delivered by
Hatcher, C.:
This appeal steins from a dispute between an insurer under a general automobile liability policy and an insurer under a general liability policy as to the principal liability for an injury to an employee.
The facts are not in dispute.
The National Compressed Steel Corporation (hereinafter referred to as National) was engaged in the business of collecting and processing scrap metal at its place of business in Kansas City, Kansas. National carried a general liability insurance policy with the United States Fidelity and Guaranty Company (hereinafter referred to as United).
M. Rogoff and Co., Inc. had its truck loaded with scrap metal which was delivered to National by Rogoff’s employee, Milton Thurston. Rogoff carried a general automobile insurance policy with the Western Casualty and Surety Company (hereinafter referred to as Western).
While National’s employees were unloading the truck with an electric crane Thurston was injured through the alleged negligence of National’s employees. Thurston brought- an action against National for damages. Western refused to enter into the defense of the suit. United, National’s insurer, settled the claim for $1,800 and brought an action against Western, Rogoff’s insurer, for subrogation in the amount of the settlement plus costs and expenses contending that under the term of Western’s policy insuring Rogoff any liability arising out of the loading or unloading of the vehicle belonging to Rogoff was covered by the defendant.
The defendant answered claiming that the injury was expressly excluded by the clear and specific provisions of its policy.
The plaintiff and defendant each filed a motion for summary judgment. The trial court found that injury to Rogoff’s employee was excluded from the terms of Western’s policy and sustained the defendant’s motion for summary judgment.
The plaintiff has appealed.
Certain provisions of Rogoff’s general automobile liability policy issued by Western are material at this point.
“I. Coverage A—Bodily Injury Liability; Coverage B—Property Damage Liability: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
“A. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury’ sustained by any person;
“B. injury to or destruction of property, including the loss of use thereof, hereinafter called ‘property damage’;
“arising out of the ownership, maintenance or use of the automobile, . . .
“III. Definition of Insured:
“(a) With respect to the insurance under coverages A and B, the unqualified word ‘insured’ includes the named insured and, if the named insured is an individual, his spouse and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or spouse or with the permission of either. The insurance with respect to any person or organization other than the named insured or spouse does not apply:
“(2) to any employee with respect to bodily injury to another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of the automobile in the business of such employer.
“This policy does not apply:
“(c) under coverage A, to (1) bodily injury to any employee of the insured arising out of and in the course of employment, other than domestic, by the insured or in domestic employment if benefits therefor are in whole or in part either payable or required to be provided under any workmen s compensation law, or (2) any obligation for which the insured or any carrier as his insurer may be held liable under any workmen’s compensation, unemployment compensation or disability benefits law, or under any similar law; . . .’’
The appellant contends that National and its employees became additional insureds under appellee’s policy while National’s employees were using Rogoff’s truck for unloading purposes and the employee of Rogoff was not National’s employee; therefore, the clause excluding Rogoff’s employee did not apply to Rogoff’s employee injured by National.
The trial court concluded that under the terms of the policy an employee of Rogoff was excluded from its terms and no other questions need be determined. We are constrained to agree.
The question of whether the employees of the appellant’s insured were additional unnamed insureds of the appellee is not material to the determination of the present controversy due to the “employee exclusion” clause in the insurance policy issued by appellee to its named insured, Rogoff.
The exclusion clause contained in appellee’s policy is stated with clarity and should not be misunderstood by another insurance company.
It reads:
“This policy does not apply:
“(c) under coverage A, to (1) bodily injury to any employee of the insured arising out of and in the course of employment, other than domestic, by the insured. . . .”
We find no ambiguity in the language used. We should not seek ambiguity where none exists merely for the purpose of invoking the rule of liberal construction.
In a case involving a dispute between two insurance companies we do not have occasion to apply the rule of liberal or extended interpretation which is sometimes necessary to protect a layman in the coverage which he thought he was receiving.
In Esfeld Trucking, Inc. v. Metropolitan Insurance Co., 193 Kan. 7, 392 P. 2d 107, we stated at page 10 of the opinion:
“We believe the policy is clear and unambiguous and there is no need for judicial interpretation or the application of rules of liberal construction (Kendall Plumbing, Inc. v. St. Paul Mercury Ins. Co., 189 Kan. 528, 370 P. 2d 396) particularly since this is an action between two insurance companies who draw their own policies and should know the meaning of the words used in those policies as they are understood in the general field of insurance.”
We conclude that if an injured party is an employee of the named insured under an automobile liability policy, he is excluded by a provision which excludes “bodily injury to an employee of the insured arising out of and in the course of employment ... by the insured” even though he may not have been the employee of an unnamed insured under the policy whose employees committed the tort.
The exact question involved is one of first impression in this jurisdiction. There is divided authority in other jurisdictions but the great weight of authority appears to be in harmony with the views expressed herein. The cases from other jurisdictions have become too numerous to justify citation for the purpose of classification. Those wishing to research the cases should see the annotation in 50 A. L. R. 2d 78 and A. L. R. 2d, Supplemental Service, Vol. 2, p. 3203 and Vol. 4, p. 1138.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Price, J.:
This is an action on an “Accident and Sickness Income” insurance policy.
The insured will be referred to as plaintiff and the insurance company as defendant.
Basically, the dispute arises over the question as to which benefits of the policy apply—sickness or accident.
At the close of plaintiff’s evidence the court sustained defendant’s motion for a directed verdict in its favor.
Plaintiff has appealed from that ruling.
A copy of the entire policy is not included in the record on appeal. Portions of it are abstracted. Other portions are set out in full. It was issued on August 1, 1960. It provides for a monthly sickness benefit of $100.00 for a maximum period of twelve months. The monthly accident benefit is $100.00 for a maximum period of “lifetime.” Section “E” of tihe policy lists specific loss benefits such as for the loss of a hand, foot or eye—and with which we are not concerned.
We here quote or summarize other provisions of the policy.
“F. Monthly Accident Benefit
“(1) total disability—When ‘such injury’ shall, independently of any and all other causes, within twenty days of the date of the accident, totally and continuously disable you and prevent you from performing every duty of your occupation, the Association will pay you at the rate of the Monthly Accident Benefit for loss of time while you are so disabled, for a period not to exceed twelve months.
“At the end of such twelve months, the Association will continue to pay you at the same rate so long as you shall live and be totally and continuously disabled as the result of ‘such injury’ and be prevented from engaging in any occupation or work for wages or profit, but the total period of payment under this section F (1) shall not exceed the ‘Monthly Accident Benefit—Maximum Period’ shown in the Schedule.
“(2) delayed total disability—If ‘such injury’ shall not within twenty days but shall within one hundred days from the date of the accident wholly disable you, the Association will pay you for the period of continuous total disability (not exceeding three months) at the rate of one-half the Monthly Accident Benefit.
“(3) partial disability—If ‘such injury’ shall, commencing with the date of the accident or immediately following total loss of time, prevent you from performing one or more but not all of the daily duties of your occupation, the Association will pay you for such period of continuous partial disability (not exceeding three months) at the rate of one-half the Monthly Accident Benefit.
“(4) general conditions—Monthly Accident Benefits will be payable only while you are under the regular care and treatment of a licensed physician or surgeon other than yourself. When an accident causes loss for which a benefit is payable under section E, no Monthly Accident Benefit will be payable for disability occurring thereafter as a result of the same accident.”
Section “G” concerns surgical and medical indemnity for non-disabling injuries, with which we are not concerned.
“H. Monthly Sickness Benefit
“When ‘such sickness’ shall, commencing during the term of this policy, wholly and continuously disable you and prevent you from engaging in any occupation or work for wages or profit, the Association will pay you for loss of time at the rate of the Monthly Sickness Benefit specified in the Schedule. Such payment shall be made for so long a time as you remain so disabled and are under the regular care and treatment of a legally qualified physician or surgeon other than yourself, but not exceeding during any one period of disability the amount of time specified in the Schedule as ‘Monthly Sickness Benefit—Maximum Period.’
“Any period of disability due to sickness will, if such period commences during the term of this policy and results from the same or related cause or causes of a prior period for which benefits have been paid under this section H, be considered a continuation of the prior period unless the periods are separated by an interval of six months during which you continuously perform every duty of your regular occupation.
“Successive periods of disability due to sickness and resulting from different causes will, if such periods commence during the term of this policy, be considered as the same period unless they are separated by your return to active full time employment.
“I. Exceptions and Reductions
“(1) This policy provides no benefit for any loss, fatal or non-fatal, caused by: (a) suicide (or any attempt thereat) while sane or insane; (b) war or
any act of war, whether declared or undeclared; (c) pregnancy, childbirth, or complications therefrom. The Association shall not be liable for (d) any loss occurring while you are engaged in any capacity in military, naval, or air service of any country (any premium paid to the Association for any period not covered by this policy by reason of military, naval, or air service will be returned pro rata); not for (e) death or injury incurred to which a contributing cause was your commission of, or attempt to commit a felony, or to which a contributing cause was your being engaged in an illegal occupation.
“(2) (a) ‘Such injury,’ as the term is used in this policy, is defined as bodily injury brought about by an accidental cause and not otherwise. Bodily injury, fatal or non-fatal, not resulting from accidental cause shall be considered only under the sickness provisions of this policy, (b) Any loss, fatal or non-fatal, due wholly or in part to any disease or sickness, or medical or surgical treatment therefor, shall he classified as sickness and not otherwise, (c) Any loss, fatal or non-fatal, due to hernia of any type, heatstroke, or sunstroke shall be classified as sickness and not otherwise.” (Emphasis supplied.)
Plaintiff became disabled and made claim under the policy. Defendant contended that plaintiff had for many years been suffering from osteoarthritis and that the injury complained of simply aggravated such existing condition, and therefore under Section I (2) (b) of the policy—above quoted with emphasis—the loss must be classified as being due to sickness. Under this theory and contention defendant paid to plaintiff the sum of $100.00 per month for twelve months—and refused further payment.
Plaintiff contended that his disability resulted solely through external, violent and accidental means, that he was totally disabled, and therefore should be paid $100.00 per month under the accident benefit provision of the policy for as long as his disability continues.
No settlement of the dispute being reached, plaintiff brought this action. The petition and answer alleged the foregoing contentions.
Plaintiff’s evidence showed the following:
Plaintiff was fifty-seven years of age and had worked for a railroad for thirty-three years as a section-hand. The nature of his work called for a great deal of heavy lifting. He had never been absent from work because of any arthritic condition and he had never “begged off” from any work assigned to him. On the morning of February 5, 1962, as he was going to work he slipped on the back steps of his home and fell, injuring both knees. After a few minutes he raised himself and, although still in pain, went to work. He was able to do some of his work in a sitting position. That evening both of his knees were greatly swollen. He went to work the next day but on February 7 went to see his doctor. The doctor prescribed treatment, which included lying in bed for three days and then using crutches for six months. Since then he has been able to walk only with the aid of a cane. He now has trouble walking up and down steps and is unable to do any heavy lifting.
His doctor testified that plaintiff’s history showed that he had had an injury to his right knee some thirty years previously. The doctor’s diagnosis was that he showed signs of osteoarthritis—a condition of joints normal to aging which is caused by “wear and tear.” His testimony was that many people who have osteoarthritis “live with it quite well” but that such condition makes the joint more susceptible to injury and when such a joint is injured the injury is more pronounced. He further testified that osteoarthritis— “which every one will have sooner or later if he lives long enough” —is only one type of arthritis and that there are other types which are caused by infections. The doctor also testified that plaintiff was totally disabled; that very little improvement in his condition could be expected;, that people have been known to have extreme osteoarthritis without ever being disabled, and that it would be impossible to say whether, absent the accidental fall, the osteoarthritis would have ever disabled him. In answer to a hypothetical question the doctor testified that in his opinion, based upon a reasonable medical certainty, the fall was the precipitating cause of plaintiff’s present disability.
As before stated, at the close of plaintiff’s evidence defendant moved for a directed verdict in its favor—and the motion was sustained. In its ruling the court commented that the insurance policy complied with statutory requirements and that under Section 1(2) (b), above quoted, it was clear that plaintiff’s evidence showed that most, if not all, of his trouble was from his osteoarthritis and therefore, under the mentioned provision, his disability must be classified as sickness and as he had been paid sickness benefits in full—there remained nothing to submit to the jury.
Before discussing contentions made by plaintiff in his appeal from that ruling, attention should be called to pertinent provisions of K. S. A. 40-2202, which read:
“(A) No policy of accident and sickness insurance shall be delivered or issued for delivery to any person in this state unless:
“(5) the exceptions and reductions of indemnity are set forth in the policy and, . . . are printed, at the insurer’s option, either included with the benefit provision to which they apply, or under an appropriate caption such as ‘Exceptions,’ or ‘Exceptions and Reductions,’ provided that if an exception or reduction specifically applies only to a particular benefit of the policy, a statement of such exception or reduction shall be included with the benefit provision to which it applies; . . .” (Emphasis supplied.)
Plaintiff first contends that Section I (2) (b) of the policy is in fact a limitation on the benefits under Section F of the policy providing for monthly accident benefits, and therefore, under the emphasized portion of the statute above quoted, should appear in Section F rather than being “hidden” in Section I which covers exceptions and reductions. It therefore is contended that, being contrary to statute, such provision of the policy is to be disregarded —as though it did not exist.
We think plaintiff’s contention on this point is without merit and cannot be sustained. The provision in question appears in the “Exceptions and Reductions” portion of the policy and is in the nature of a definition of the contract of insurance. It does not alter the terms of the policy, and does not specifically apply “only to a particular benefit of the policy.” Rather, it is a provision applying to the policy as a whole, and is properly included under the “Exceptions and Reductions” section. To this extent we agree with the trial court’s ruling.
Plaintiff’s chief contention, however, is that the jury should have been permitted to determine the question as to the underlying proximate cause of his disability, and that the court erred in concluding, as a matter of law, that it was his preexisting arthritic condition.
The contention is well taken.
In ruling on a motion for a directed verdict the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon the motion must be denied and the matter submitted to the jury (Revell v. Bennett, 162 Kan. 345, 176 P. 2d 538, Casement v. Gearhart, 189 Kan. 442, 370 P. 2d 95). Plaintiffs evidence has heretofore been summarized, and need not be repeated. Under the mentioned rule the question should have been submitted to the jury.
The judgment is therefore reversed with directions to grant a new trial. | [
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The opinion of the court was delivered by
Fatzer, J.:
The appellant, Claude M. Carpenter, was charged, tried by a jury, and convicted of second degree burglary, grand larceny, third degree burglary, and possession of burglary tools. The defendant was represented by counsel of his own choice at the trial. Following the defendant’s conviction, counsel filed a motion for a new trial, which was overruled, and he also appeared with the defendant when he was sentenced.
During the presentation of the state’s case in chief, evidence was introduced that the defendant and his accomplice burglarized the Interstate Securities Company office in Wichita at about 5:00 o’clock in the morning on April 11, 1960. The defendant was apprehended in his home about 30 minutes later following his identification by a newsboy who was delivering his morning paper route and saw him and his accomplice near and leaving the scene of the burglarized office. Exhibits in the form of bills and coins, two cash boxes containing identifying material from the Interstate office, and a red shirt and a pair of trousers were offered in evidence. The defendant was wearing the red shirt and trousers when he was observed at the scene of the burglary. He seeks reversal of his conviction upon the theory that the shirt and the trousers were taken from his home as the result of an alleged unlawful search and seizure when police officers arrested him in his home without a search warrant. During the presentation of the state’s evidence, and specifically with respect to the offer of all the exhibits including the red shirt and trousers, the following occurred:
“Mr. Sanborn: Yes; I’ll just make all my proffers, then you can make your objections.
“Mr. Clarkson: I’m not objecting.
“Mr. Sanborn: Pardon me? You don’t have any objections?
“Mr. Clarkson: None whatever.
“Mr. Sanborn: We’d further like to—He didn’t object. May these be admitted, Your Honor?
“The Court: Why don’t you finish up so we will get—
“Mr. Sanborn: O. K. I would further like to offer in evidence Exhibit 20, consisting of this red shirt and those trousers.
“Mr. Clarkson: That’s all you’re offering?
“Mr. Sanborn: That’s all there could be, because that’s all we have.
“Mr. Clarkson: O. K. No objection.
“The Court: They will be admitted. That is State’s Exhibits 13, 14, State’s Exhibit 20 and State’s Exhibit 21-A.”
The defendant’s motion for a new trial contained five grounds specifying that the district court had misdirected the jury in a material matter of law; that the verdict was in whole or in part contrary to the evidence; that the verdict was given under the influence of passion or prejudice; that on account of accident or surprise which ordinary prudence on the part of the defendant could not have prevented, and for abuse of discretion of the court whereby the defendant was not afforded a reasonable opportunity to present his evidence and be heard on the merits of the case.
Following the defendant’s confinement in the Kansas State Penitentiary, he filed his notice of appeal to this court pro se, which recited that he gave “timely notice of intention to appeal from the judgment entered by” the district court. Thus, the defendant appealed only from the conviction and judgment rendered in the case, and he did not appeal from the order overruling his motion for a new trial.
During the pendency of the appeal, the parents of the appellant, Claude M. Carpenter, Jr., employed Claude Lee, a member of the Sedgwick County Bar Association, to represent the defendant in this court.
The defendant principally argues that the district court erroneously admitted into evidence the red shirt and trousers which were taken from the defendant’s home following his arrest when, it is claimed, police officers illegally forced entry into his home to arrest him and there seized his personal effects. The contention relates solely to an alleged trial error and is not subject to appellate review because no appeal was taken from the district court’s order overruling the defendant’s motion for a new trial. Moreover, the question here raised was not included in the defendant’s motion as a ground for a new trial for the obvious reason that the defendant did not object to the introduction of the exhibits in question, but affirmatively consented to their introduction during the trial.
It is the long-established and well-settled rule of appellate procedure that where a defendant appeals from a conviction and sentence against him, alleged trial errors will not be considered on appellate review unless the defendant appeals from the order overruling his motion for a new trial and specifies such ruling as error. A few of our many decisions applying the rule to appellate review of criminal cases are State v. Shehi, 125 Kan. 110, 263 Pac. 787; State v. Owen, 161 Kan. 361, 168 P. 2d 917; State v. Turner, 183 Kan. 496, 328 P. 2d 733; State v. Hamilton, 185 Kan. 101, 340 P. 2d 390, 361 U. S. 920, 4 L. Ed. 2d 188, 80 S. Ct. 265; State v. Combs, 186 Kan. 247, 350 P. 2d 129; State v. Bednark, 187 Kan. 236, 356 P. 2d 848; State v. Armstrong, 188 Kan. 567, 363 P. 2d 520; State v. Mize, 191 Kan. 129, 379 P. 2d 317; State v. Aeby, 191 Kan. 333, 381 P. 2d 356, and State v. Ryan, 193 Kan. 672, 396 P. 2d 363.
In State v. Aeby, supra, it was said:
“As we have seen, the point here attempted to be raised relates to the admission or exclusion of evidence which is a trial error and may be reviewed only when the appeal is from the order overruling the motion for a new trial and such rule is specified as error in conformity with Rule No. 5 of this court, and the fact that a claimed federal right is presented does not preclude this court from refusing to decide the federal question and apply adequate and independent well-settled state rules relating to appellate procedure. In John v. Paullin, 231 U. S. 583, 58 L. Ed. 381, 34 S. Ct. 178, it was said:
“‘Without any doubt it rests with each State to prescribe the jurisdiction of its appellate courts, the mode and time of invoking that jurisdiction, and the rules of practice to be applied in its exercise; and that state law and practice in this regard are no less applicable when Federal rights are in controversy than when the case turns entirely upon questions of local or general law. . . .’
(p. 585.)
“In In re Lamkin, 355 U. S. 59, 2 L. Ed. 107, 78 S. Ct. 137, a petition for a writ of certiorari was denied upon the ground that the judgment of the court of criminal appeals of Texas rested upon an adequate state ground since the petitioner in filing his application for habeas corpus in the state court failed to comply with applicable state procedures. See, also, Fox Film Corp. v. Muller, 296 U. S. 207, 80 L. Ed. 158, 56 S. Ct. 183, holding that where the judgment of a state court rests upon two grounds, one of which is federal and the other nonfederal in character, the Supreme Court of the United States is without jurisdiction to review if the nonfederal ground is independent of the federal ground and adequate to support the judgment. In the opinion it was said:
“ . . This rule has become firmly fixed at least as early as Klinger v. Missouri, 13 Wall. 257, 263 ( 20 L. Ed. 635, 637), and has been reiterated in a long line of cases since that time. It is enough to cite, in addition to the Klinger case, the following: Enterprise Irrigation District v. Canal Co., 243 U. S. 157, 163-165 ( 61 L. Ed. 644, 648, 649, 37 S. Ct. 318); Petrie v. Nampa Irrigation District, 248 U. S. 154, 157, (63 L. Ed. 178, 179, 39 S. Ct. 25); McCoy v. Shaw, 277 U. S. 302 ( 72 L. Ed. 891, 48 S. Ct. 519); Eustis v. Bolles, 150 U. S. 361 (37 L. Ed. 1111, 14 S. Ct. 131).’ (1. c. 210.)
“In Williams v. Georgia, 349 U. S. 375, 99 L. Ed. 1161, 75 S. Ct. 814, it was said:
“ ‘A state procedural rule which forbids the raising of federal questions . . . by any other than a prescribed method, has been recognized as a valid exercise of state power . . .’ (p.382.)
“See, also, Ferguson v. Georgia, 365 U. S. 570, 5 L. Ed. 2d 783, 81 S. Ct. 756, as tending to bear on this point. In Beck v. Washington, 369 U. S. 541, 549, 550, 8 L. Ed. 2d 98, 82 S. Ct. 955, it was said that Rule 43 of the Rules on Appeal, Revised Code of Washington, relating to appellate review of alleged errors of the trial courts of that state which provides that ‘[n]o alleged error of the superior court will be considered by this court unless the same be definitely pointed out in the “assignments of error” in appellant’s brief’ was a valid exercise of state power, and that the supreme court of the state of Washington was not required to search through an appellant’s brief to find specific contentions which should have been raised within the ‘assignments of error.’
“We rest our decision in this case upon the appellant’s failure to invoke and apply the adequate and easily complied-with rules of this court relating to appellate procedure and do not pass upon the merits of the case or upon the correctness of any of the rulings of the district court. Appellate jurisdiction in this instance was not invoked in accordance with those rules, and we here deny no federal right since there was no federal question before us for decision.” (1. c. 336, 337.)
For cases following State v. Aeby, supra, see State v. Smith, 193 Kan. 299, 392 P. 2d 902; State v. Marsh, 193 Kan. 302, 392 P. 2d 953; State v. Adams, 193 Kan. 523, 394 P. 2d 114, and State v. Ryan, supra.
As the record indicates, the only grounds urged for reversal relate to the admission into evidence of the red shirt and trousers taken from the defendants home when he was arrested. The ruling of the district court admitting them in evidence during the course of the trial falls within the category of alleged trial errors. Appellate review of the ruling is precluded under the well-established rules of this court heretofore set forth.
We have fully reviewed the record and find no merit in the defendant’s contention. He was represented by competent counsel throughout his trial. We know of no reason why the rule of cases heretofore cited should not be followed, and we deny no federal right since no federal question was presented for decision.
The judgment is affirmed. | [
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The opinion of the court was delivered by
VALENTINE, J.:
This action was commenced in the district court of Morris county, by the Exchange bank of Ma-quoketa, Iowa, against W. H. Amsbaugh, of Dunlap, Kansas, to recover the amount of two certain judgments rendered against the defendant in the circuit court of Jackson county, Iowa. The defendant set up the defense that these judgments were rendered without any notice to him, without any appearance on his part, and, indeed, without any jurisdiction whatever as to him personally; and therefore he claims that said judgments are void. The case was tried by the court below without a jury, and the court made special findings of fact and conclusions of law, and rendered judgment in favor of the plaintiff and against the defendant for the amount of the judgments. The defendant brings the case to this court for review.
It appears from the special findings of fact that on November 4, 1878, and prior thereto, the defendant, with his wife, resided in the city of Maquoketa, in Jackson county, Iowa; that on that day he left the state of Iowa, intending to make Texas or Kansas his home and never to return to Iowa; and he finally, and on April 5, 1879, settled at Dunlap, Morris county, Kansas, and has never returned to Iowa. When he left Iowa, be left his wife residing in Maquoketa, in the same house where they had formerly resided together prior to his departure; and she continued to reside until the spring of 1879, when she also left Iowa, intending never to return; and she immediately joined her husband in Kansas. When the defendant left Iowa on November 4,1878, some of his household goods were already packed for shipment, and when his wife left they were all either sold or shipped. The actions in Iowa in which said judgments were rendered were commenced as follows: The first action was commenced on November 9, 1878, and the other was commenced on November 12, 1878. An “original notice” answering to a summons, was served in each action as hereinafter stated. The first notice was served on November 12, 1878, and the other was served on November 14, 1878; and the sheriff who served the same states in his return that he served them by delivering a copy thereof to the wife of the defendant at the defendant’s “usual place of residence.” A copy of each notice was in fact left by the sheriff with the defendant’s wife, at the house where the defendant had resided up to November 4, 1878, and where the defendant’s wife was still living; and the service was not made in any other manner. An attachment was also procured in each action at its commencement, upon the following ground, as stated by the plaintiff in his petition therefor: “And your petitioner further states, that said defendant has absconded, so that the ordinary process cannot be served upon him.” The defendant never appeared in either of said actions, and never authorized any appearance for him; and no one did in fact appear for him, although the record of each judgment shows that counsel did appear for him. The defendant did not in fact have any knowledge or notice of the commencement or existence of either action until long after the judgments therein were rendered against him.
The question now arises, are these judgments such personal judgments against the defendant that they may be enforced against him personally by an ordinary action upon them outside of the jurisdiction in which they were rendered, and in Kansas? Several days prior to the commencement of these actions, the defendant had passed outside of and beyond the jurisdiction of the state of Iowa, where these judgments were rendered, and has never since returned within such jurisdiction, and has never since voluntarily or otherwise surrendered jurisdiction to the state of Iowa of either his person or his property by any appearance in the courts of Iowa, or otherwise. This it would seem ought to be decisive of any question involved iu this case; for a judgment rendered without jurisdiction is everywhere held to be void. But it is claimed that the defendant still had a residence within the state of Iowa, and within the jurisdiction of the court which rendered the foregoing judgments when the aforesaid notices were served, and that they were served in accordance with the laws of Iowa, so as to obtain jurisdiction of his person, by delivering copies thereof to his wife at such residence. They were not served upon him personally, however, nor served while he was within the jurisdiction of the court or within the jurisdiction of the state; and service at his residence, or otherwise, unless it can be held to be a service upon him 'personally, cannot bind him personally, (Mitchell v. Gray, 17 Ind. 123; Sallee v. Hays, 3 Mo. 116;) and service merely upon his wife is not sufficient. (Moore v. Wade, 8 Kas. 380.)
It is admitted that the service was made by delivering copies to the defendant’s wife; but it is denied by the defendant that the place where the notices were served, and where he had formerly lived, was at the time of the service his “ usual place of residence,” or his place of residence at all. ■ We suppose that a resident of a state, intending to leave it permanently, will nevertheless continue to be a resident of the state, at least for some purposes, until he passes beyond the boundaries of the state; (Ballinger v. Lantier, 15 Kas. 608;) though it is held in "Virginia that such a person would become a non-resident of the state as soon as he started to remove therefrom. (Clark v. Ward, 12 Gratt. 440.) And in Iowa it is held that a resident of a. state intending to remove from one county therein to another county therein, would be- • come a non-resident of the state as soon as he passed from the county of his residence into an intervening county, and before he had reached the county in which he intended to make his future residence, although at no time had he passed beyond the boundaries of the state. (Cohen v. Daniels, 25 Iowa, 88.) And certainly after a resident of a state intending to remove therefrom has passed beyond the boundaries of his state, he is no longer a resident of the state, but is a non-resident thereof. (Ritter v. Phœnix Mutual Life Ins. Co., 32 Kas. 504.) And a service of a notice at a person’s former place of residence after he has removed therefrom is not service at his “usual place of residence.” (Mastin v. Gray, 19 Kas. 458.)
But it is claimed by the plaintiff that the defendant’s wife still resided in Iowa when these notices were served, and therefore that his residence must be deemed to have been there also. Now a wife’s residence or domicile never controls or fixes her husband’s residence or domicile; but, on the contrary, her residence or domicile generally follows that of her husband. (Davis v. Davis, 30 Ill. 180; Cambridge v. Charlestown, 13 Mass. 501; Greene v. Greene, 28 id. 410; Hackettstown Bank v. Mitchell, 28 N. J. L. 516; Pearce v. The State, 1 Sneed, 63; McAfee v. Kentucky University, 7 Bush, 135; Hart v. Horn, 4 Kas. 232.) The husband’s residence is where he himself resides, and not necessarily where his wife resides, or where he does not in fact reside. (See authorities last cited.)
But probably neither the residence of the husband nor that of the wife could be so controlled by the place of residence of the other that a good service of summons could be made upon one of them by leaving a copy of the summons at the place of residence of the other, when the one intended to be served did not in fact reside at such place. A husband and wife may in fact have different places of residence, or one or both may in fact not have any such actual and particular place of residence as would authorize the service of a summons upon him or her at such place of residence, without any actual delivery of the summons, or a copy thereof, to the party intended to be served; and whatever may be the rule with respect to domicile, a person may, and often does, lose one place of residence before he actually procures another. (Cohen v. Daniels, 25 Iowa, 88, 90; Clark v. Ward, 12 Gratt. 440; Exeter v. Brighton, 15 Me. 58; Colton v. Longmeadow, 94 Mass. 598.)
But would the service of the notices in this case be sufficient as a personal service upon the defendant, even if the house in Iowa, where he formerly resided, were still his “ usual place of residence”? Would the service be such & personal service upon him that it would bind him personally in other jurisdictions outside of the state of Iowa? How could such a service reach over into Kansas and affect the party or his property in Kansas? A state may have complete power and jurisdiction over all persons and things within its boundaries, but it cannot reach beyond its boundaries, and into other jurisdictions, and there affect the status of persons or things. Neither the laws of a state, nor the jurisdiction thereof, nor any of its judicial processes, can reach beyond its boundaries or have any extra-territorial force or operation. And the judicial determinations of a state can have force and operation in another state, only so far as the court promulgating such determinations has jurisdiction over the persons or things to be affected by such determinations. Any determination without jurisdiction is void; and any determination in excess of jurisdiction is also void to the extent of the excess; and a judgment rendered in one state without jurisdiction, or in excess of jurisdiction, may be impeached collaterally, or otherwise, in another state, and upon extrinsic evidence, as well as upon the record of the judgment. (Litowich v. Litowich, 19 Kas. 451, 455; Mastin v. Gray, 19 id. 458, 562; Brinkman v. Shaffer, 23 id. 528; McNeill v. Edie, 24 id. 108. See also Earle v. McVeigh, 91 U. S. 503; Windsor v. McVeigh, 93 id. 274; Hart v. Sansom, 110 id. 152; same case, 29 Albany L. J. 152.) In this state a domestic judgment may be impeached for want of jurisdiction, collaterally as well as directly, and by extrinsic evidence as well as intrinsic evidence. (Mastin v. Gray, 19 Kas. 458.) In this particular case some of the evidence is extrinsic and some of it is intrinsic; some of it is by the record, and some of it dehors the record. The records of the judgments sued on in this case, as well as other evidence, tend to show that the place where the notices were served was not the defendant’s “usual place of residence; ” for under the laws of Iowa, “ ordinary process” “may he served at the defendant’s usual place of residence,” while- the plaintiff’s petition set forth as a ground for his attachment that the defendant had absconded so that the “ordinary process” could not be served upon him. The defendant in fact had no “usual place of residence” in Iowa, when the foregoing notices were served, and the court rendering the aforesaid judgments had no jurisdiction to bind the defendant personally by such judgments. The judgments may have been sufficient to dispose of the property attached in Iowa, for such property was within the territorial jurisdiction of the coui’t rendering the judgments; but the judgments are not sufficient upon which to found any action in Kansas, for the court rendering the judgments did not have jurisdiction of any person or thing now in Kansas.
The judgment of the court below will be reversed, and the cause remanded with the order that judgment be rendered in favor of the defendant below, and against the plaintiff below.
All the Justices concurring. | [
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The opinion of the court was delivered by
JOHNSTON, J.:
This was an action in the nature of ejectment, for the recovery of two town lots in Peabody. The plaintiff claimed title under a tax deéd made by the probate judge of Marion county in pursuance of “an act relating to town sites.” (Comp. Laws 1879, ch. 109.) He alleges that these lots were a part of the west half of section four, township twenty-two south, of range three east, in Marion countjr, Kansas, which prior to the 27th day of December, 1871, were public lands belonging to the United States; that on that day the same were duly entered as a town site by the probate judge of Marion county, Kansas, for the benefit of and in trust for the occupants thereof; that afterward the probate judge appointed three commissioners to lay out, survey, and plat the town site, and to distribute the same among the several occupants thereof, and to levy a tax upon the several portions thereof as the law requires to raise a fund with which to pay expenses of entering the town site, and to pay all fees and costs connected therewith; that, the defendant, Mary J. Sterling, was an occupant of the town site, and that the lots in question, among others, were set off to her; that the defendant failed to pay the taxes assessed against her upon these lots, and that in pursuance of the provisions of “an act relating to town sites” the probate judge sold and conveyed these lots to the plaintiff to pay said taxes.
The defendants allege and claim that the plaintiff’s deed is invalid for the following reasons: That the commissioners appointed by the probate judge to survey and plat the town site, failed to follow the procedure pointed out by the statute, in that they did not return to the probate judge along with their report a plat of their survey, and did not designate on the plat the lots and squares on which improvements had been made, with the names of the owners thereof, and the value of' the same as required by § 4 of the act relating to town sites; that instead of subdividing the entire town site into lots to be distributed among the occupants, they set apart a portion thereof for public purposes; that instead of valuing the improvements on the lots, they assessed a uniform tax of three dollars on every lot of the town site, without regard to location or value, and in entire disregard of the fact that some of the lots had valuable improvements upon them, while others-had none; that the defendants had, prior to the sale of the lots to plaintiff, tendered to the probate judge the sum of six dollars, which was the amount of taxes levied against the lots in question, and which tender had been refused. It was further claimed that plaintiff’s deed was void on its face, because that several separate and distinct parcels of land were put up and sold in bulk.
This action has been twice tried in the district court of Marion county. The first trial was had in April, 1878, which resulted iu a judgment in favor of the plaintiff. The defendants then, in open court, made an oral application to set aside that judgment, and for a new and second trial as authorized by law in actions of this character. This application was afterward reduced to writing, handed to the clerk of the court and filed as a paper in the case, and the clerk was by the defendants’ attorneys requested to enter the application upon the journal, signing their names thereto, immediately after the entry of plaintiff’s judgment upon the journal. Thereupon the court, upon this application, set aside the judgment and granted the defendants another trial. The plaintiff complains of the ruling of the court in thus granting a second trial, and upon an oral application. The objection is somewhat technical. In actions for the recovery of real property, the party against whom the judgment is rendered in the first trial is entitled to another and second trial upon demand made at any time during the term at which the judgment upon the first trial is rendered.
The demand is not required to be made in writing, setting forth the reasons upon which it is based, like the application for a new trial in ordinary actions, but a notice of the demand is to be entered upon the journal. This entry should be made by the clerk of the court, and not by the parties making the demand. In this case the notice and demand were given and made at the conclusion of the first trial in open court, and in the presence of both parties. It was then the duty of the clerk to enter such notice and demand upon the journal, and his neglect or refusal to make the entry ought not to be held to defeat the right of a party to another trial. Whether the clerk recorded the notice at length upon the journal at the instant it was made, does not appear, nor do we think it to be very material whether it is done then or written up with the other proceedings at the close of the day and before the adjournment for the term, and especially when the other party had actual notice of the demand. The facts relating to the demand above recited, as well as the formal application, appear in the recorded proceedings of that day and as a part of the judgment entry. It appears to have been entered on the same day, and it occurs in that entry immediately after the record of judgment and before the order granting a second trial. There has therefore been a substantial compliance with the law, and the plaintiff’s objection must be overruled. The second trial occurred at the May term, 1883. When the plaintiff had offered his testimony in support of his right of recovery, the defendants interposed a demurrer to the evidence upon the ground that no cause of action had been established thereby. The demurrer was sustained by the court, and we think rightly so. The taxes for which the lots in question were sold to plaintiff are authorized, and the method of their levy and collection is provided for in the statute relating to the entry and disposal of town sites. (Comp. Laws 1879, ch. 109.) Section 4 of that act provides for the appointment of three commissioners by the probate judge, and then provides that—
“ It shall be the duty of such commissioners to cause an actual survey of such site to be made, conforming, as near as may be, to the original survey of such town, designating on such plat, the lots or squares on which improvements are standing, with the name of the owner or owners thereof, together with the value of the same.”
Section 5 provides that the commissioners shall, as soon as the survey and plat are completed, give a notice thereof to all persons interested in the town site, that, on a day stated, they will proceed to set off the lots, squares or grounds, to each occupant in accordance with their respective interests.
Section 6 provides for the setting apart of the lots, squares or grounds to the persons entitled to receive the same, in pursuance of the notice given in § 5.
Section 7 provides that—
“After the setting apart of such lots or grounds, and the valuation of the same, as hereinbefore provided for, the said commissioners shall proceed to levy a tax on the lots and improvements thereon, aeeording to their value, sufficient to raise a fund to reimburse to the parties who may have entered such site, the sum or sums paid by them in securing the title to such site, together with all expenses accruing in perfecting the same, the fees due the commissioners and the surveyor for their respective services, and other necessary expenses connected with the proceedings.”
Section 9 provides as follows:
“The said probate judge shall then proceed to collect the taxes, levied as aforesaid, and he shall make deeds to the lots so set apart to the various parties entitled to the same; but no deeds shall be made to any person until such person shall have first fully paid all the tax or assessment so levied against him; and in case any person shall refuse or neglect to pay such tax or assessment so made against him, the probate judge may proceed to offer such lots and improvements for sale to the highest bidder, first giving such public notice as may be required in case of execution against the lands and tenements of a debtor in the district court.”
The provisions of this statute relating to the levy and collection of taxes should be strictly followed and executed. Counsel for plaintiff contends that the taxes levied thereunder are not taxes, and that the rules respecting the levy and collection of taxes should not be applied to this case, or employed in interpreting the provisions relating to taxes in the town-site act. We think that they are not only taxes in name, but in nature. The assessment and levy of the tax is made by officers appointed by authority of law; the tax is required to be levied upon the lots and improvements in accordance with their value; the purpose of the tax is a public one, as the fund provided thereby is for the benefit of every person within the district taxed, that is, every occupant of the town site. The tax thus levied against each parcel of land is chargeable alone to such parcel, and a failure of the,party interested to pay the tax subjects the parcel to a sale to the highest bidder for the amount levied against it. It will thus be seen that the charge here provided for has all the elements of, and constitutes what is ordinarily and popularly understood as taxes.
As has been seen, the basis of the levy and the method of securing equality of the burden of this tax upon the people within the town site, is by the valuation of the lots as well as the improvements thereon. Herein the commissioners appointed in this case failed. By the plaintiffs proof it appeal’s that an arbitrary estimate was placed upon the lots, without regard to location or actual value, and no appraisement was made of the improvements that had been placed upon the lots. The commissioners then levied a uniform tax of three dollars upon each lot, regardless of its real value, or the value of the improvements thereon. This was certainly a wide departure from the statutory requirement, which is prescribed for the benefit of the tax-payer, and to insure equality of taxation. We are of the opinion that the rule of the statute apportioning the tax and fixing the basis of its levy upon the valuation of the lots and the improvements thereon, is an essential requirement, a disregard of which is fatal to the proceedings. (Cooley on Taxation, p. 324; State v. Jersey City, 5 N. J. L. 386; Clark v. Crane, 5 Mich. 151; Hewes v. Reis, 40 Cal. 255; Davis v. Farns, 26 Tex. 296; Brown v. Veazie, 25 Me. 359.)
It appears, too, that the defendant tendered to the probate judge in good time the amount of the tax levied against the lots in question. The tender was refused because it was in sufficient in amount to pay the taxes upon all the lots set apart, to her. In this the probate judge was wrong. As has been stated heretofore, it is not a personal or per capita tax. The-levy is made upon the lots together with improvements thereon.. There is, or should be, a specific charge against each parcel, and the owner is entitled to the privilege of paying off and discharging the tax upon any or all of his lots as he may choose,, and no lot or parcel can be sold for any tax, except that which had been specifically levied against it.
These conclusions necessarily lead us to hold the plaintiff’s, tax deed to be invalid, and it is therefore needless to discuss or decide upon the other grounds of invalidity asserted against the deed by the defendants.
There was no error in sustaining the demurrer interposed by the defendants to plaintiff’s evidence, and the judgment of the district court will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal from a summary judgment entered by the trial court in favor of defendant (appellee) in a declaratory judgment action challenging the constitutionality of subsection (d) of K. S. A. 60-2310.
Appellant H. L. Wagner, hereinafter referred to as plaintiff, in his capacity as a bill collector, as he styles himself in his petition, purchased from the receiver of a defunct credit union in Coffeyville a promissory note, payable to the credit union and executed by the defendant, John F. Mahaffey. The note was reduced to judgment by the plaintiff in the Court of Coffeyville and thereafter he threatened garnishment process against defendant’s wages. The defendant, through his attorney, directed plaintiff’s attention to the statute and informed him that if garnishment process were issued suit for wrongful garnishment would be filed against him. Thereafter the plaintiff, pro se, filed the instant action in the District Court of Montgomery County, Kansas.
The defendant filed a motion for summary judgment on the grounds that the petition showed the defendant was entitled to judgment as a matter of law.
The motion was set for hearing and argued to the trial court by defendant. The plaintiff filed a memorandum in opposition to the motion but did not appear for argument. The trial court sustained the motion and entered judgment for defendant. Whereupon the plaintiff perfected this appeal. The appeal has been submitted to this cotut on the record and briefs of both parties, neither party appearing for argument.
The journal entry of judgment of the trial court does not reflect the basis of the trial court’s ruling but merely directs that judgment be entered in favor of defendant. The defendant supports his motion for summary judgment on the grounds that the petition did not state a proper case for declaratory judgment in that it failed to present a justiciable issue within the requirements of the declaratory judgment statute (K. S. A. 60-1701) and in the alternative that subsection (d) of section 60-2310 K- S. A. is constitutional.
Both propositions are considered in this opinion.
Our attention is first directed to the question of whether or not the petition sets out a proper case for declaratory judgment. Article 17 of the new Kansas Code of Civil Procedure authorizing declaratory judgments replaces G. S. 1949, 60-3127 to 60-3132c, the prior law. Jurisdictional requirements for declaratory judgment actions are set out in K. S. A. section 60-1701 which replaces G. S. 1949, 60-3127. The only change made is the specific inclusion of “express trusts” in 60-1701 which had been omitted in 60-3127, the effect being to eliminate the necessity for section 60-3132a of the prior act dealing with express trusts. Such change is irrelevant to our consideration in this case. It is also to be noted that G. S. 1949, 60-3128, providing for procedure in declaratory judgment actions has been replaced by the enactment of K. S. A. 60-257, the substance of which is merely that procedure for obtaining a declaratory judgment shall be in accordance with the provisions of the rules of civil procedure set out in Article 2 of the new code.
Since K. S. A. 60-1701 specifically includes controversies involving the validity or interpretation of statutes, it follows that the only issue to be resolved in our consideration here is whether or not appellant’s petition contains sufficient allegations of fact to indicate the existence of an actual controversy. At this point we find it necessary to quote portions of plaintiff’s petition in the court below pertinent to the issue now under consideration.
“(a) This action is filed pursuant to the provisions of Article 17 and Section 60-257, revised code of civil procedure, for the, purposes of securing plaintiff’s constitutional rights and his statutory right of garnishment. Plaintiff seeks a declaration that Section 60-2310 (d), revised civil code, is unconstitutional and void.
“(b) Plaintiff has a valid judgment, predicated on a promissory note, against the defendant in the Court of Coffeyville, Montgomery County, Kansas, Case No. 83-93; and plaintiff desires to execute this judgment through the process of garnishment but such execution is denied by the discriminatory operation of Section 60-2310 (d), .revised civil code, causing the judgment to lose its value.
(c) Plaintiff claims his rights under Chapter 61, Article 4, General Statutes, 1949, to garnishee the wages, bank funds and other credits of the defendant in the execution of said judgment.
“(d) Defendant contends that Section 60-2310 (d), revised code of civil procedure, bars the plaintiff from garnishment in Case No. 83-93.
“(e) Defendant’s attorney notified plaintiff in writing as follows: ‘Please be advised that if garnishment process is issued through your efforts, seeking to attach Mr. Mahaffey’s wages, suit'will be instituted against you for wrongful garnishment.’
“(f) An actual controversy exists between the parties herein as shown by defendant’s letter which is attached hereto, marked Exhibit A, and made a part hereof by reference.
“Plaintiff complains against the unconstitutionality of Section 60-2310 (d) which reads as follows:
“Section 60-2310
“Revised code of civil procedure
“Exemptions of Personal Earnings of Heads of Family
“(d) Assignment of account. If any person, firm or corporation sells or assigns his account to any person or collecting agency, or sends or delivers the same to any collector or collecting agency for collection, then such person, firm of corporation or the assignees of either, shall not have nor be entitled to the benefits of garnishment.”
It is well established in this jurisdiction that even in declaratory judgment actions involving the validity of a statute there must be an actual controversy between the parties. Courts will not render advisory opinions on abstract questions of law about which there is only a disagreement rather than an actual controversy between the parties. (West v. City of Wichita, 118 Kan. 265, 234 Pac. 978; State Association of Chiropractors v. Anderson, 186 Kan. 130, 348 P. 2d 1042; Riley v. Hogue, 188 Kan. 774, 365 P. 2d 1097.)
An analysis of the petition filed in this case, however, reveals that there is more involved than merely a difference of opinion as to the validity of the statute in question. The plaintiff alleges he desires to execute on his judgment against defendant through the process of garnishment; but defendant’s attorney has notified him that if such garnishment process is issued suit will be instituted by him for wrongful garnishment. These allegations, which are admitted on a motion for summary judgment, place the plaintiff in the position of exposing himself to suit for wrongful garnishment by pursuing the garnishment process or, in the alternative, asking for prior determination by way of declaratory judgment such as was his choice in this case. Under the facts alleged in the petition we find the dispute between the parties as to the constitutionality of the statute in question amounts to a justiciable issue within the requirements of the declaratory judgment act.
In considering this matter we have noted a number of' decisions of this court indicating that under the previous code of procedure a demurrer would not lie to a petition for a declaratory judgment if the petition showed that an actual controversy existed. The rule being that if an actual controversy is alleged in a petition for a declaratory judgment it is the duty of the district court to overrule the demurrer to the petition and proceed with the case in accordance with the provisions of the act. (Huber v. Schmidt, 188 Kan. 36, 360 P. 2d 854 and cases cited therein.)
Under the procedure of the revised code (K. S. A. 60-257) declaratory judgment actions áre subject to the same rules as other cases, including the right of discovery and motion for summary judgment.
In the case before us, the facts are undisputed and the sole and only question is one of law; thus an issue is framed that may be wholly and finally resolved on a motion for summary judgment.
Since we have concluded that the petition states a cause of action for declaratory judgment and the order of the trial court in sustaining the motion for summary judgment was so decisive as to be considered a final determination we shall next consider the validity of the statute challenged in this action.
At the outset it is noted that both parties consider the change in language of K. S. A. 60-2310 (d) to amount to an alteration in meaning from that of the previous law. We do not accept this interpretation. Section 60-2310 pertaining only to exemptions of personal earnings of heads of family replaces G. S. 1949, 60-3495. The changes are minor in substance; and as to subsection (d) of section 60-2310, which was the fifth proviso of G. S. 1949, 60-3495. The only change was the substitution of the word “garnishment” for “this act,” the last two words of the previous law. A literal interpretation of the present subsection (d) results in the exemption not only of personal earnings but of all credits and property of a debtor from garnishment by an assignee of an account or by a collection agency having it for collection. The imputing of such force to subsection (d) results in a glaring inconsistency with other subsections and the purpose as stated in the heading of section 60-2310. We are constrained to harmonize subsection (d) with the heading and other subsections of 60-2310 by ascribing to it the same force and effect of the previous law.
Judge Gard, in discussing the change of subsection (d) at page 794 of his Kansas Code of Civil Procedure, comments that subsection (d) goes further than the former statute but he further states:
“The recommendation of the Kansas Judicial Council as to this subsection was that the provision of the former statute be clarified but retained, thus limiting the restraint to wages as was intended under the former law adopted in 1913.”
As stated by Judge Gard, the recommendation of the Kansas Judicial Council was to clarify but retain the provision of the former statute. We believe the intention of the legislature was the same.
This court has always approached questions challenging the constitutionality of a statute with a disposition to determine them in such a manner as to sustain the validity of the enactment in question. (Berentz v. Comm'rs of Coffeyville, 159 Kan. 58, 152 P. 2d 53; Felten Truck Line v. State Board of Tax Appeals, 183 Kan. 287, 327 P. 2d 836.) In other words, a construction which supports a statute is preferred to one which destroys it. (Kaw Valley Drainage Dist. v. Zimmer, 141 Kan. 620, 42 P. 2d 936.)
It must be conceded that K. S. A. 60-2310 (<2), literally construed and standing alone, does preclude the right of garnishment generally to assignees of accounts and collection agencies. This court, however, is not obliged to adhere to a literal construction when in our judgment such interpretation is not in harmony with the intent of the legislature. A particular paragraph of a statute should not be given an arbitrary construction according to the strict letter but rather it should be reasonably construed with reference to the essential purpose of the entire statute. In State v. Sumner, 169 Kan. 516, 520, 219 P. 2d 438, we said:
“When the interpretation of a statute according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the statute should be construed according to its spirit and reason, disregarding so far as may be necessary, the strict letter of the law. (Clark v. Murray, 141 Kan. 533, 41 P. 2d 1042.) The same rule, of course, applies to various sections of the same act.”
The statute in question is a subsection of section 60-2310, which is designated “Exemption of personal earnings of head of family.” 60-2310 is a section of Article 23, designated “Exemptions,” all enacted as a part of chapter 60 of the Revised Code of Civil Procedure. To retain the language “benefits of this act,” literally construed, would have denied the benefits of the entire Code of Civil Procedure to the assignee of an account as the word “act” encompassed the entire code. The use of the word “article” likewise would have been too broad because Article 23 deals with exemptions generally while section 60-2310 has to do only with exemptions of personal earnings of heads of family. Since a change in language of the phrase in question was necessary for the clarification, it is our view that the word “garnishment” was substituted by the legislature with the intention that it would apply only to exemption of personal earnings of heads of family as stated at the beginning of section 60-2310. The legislative intention which we have ascribed is further borne out by the provisions of subsection (†) of section 60-2310, the last subsection thereof, which reads:
“Restrictions on application. Nothing herein shall be construed as exempting any of the earnings of any debor who is not the head of a family dependent wholly or in part upon him for support.”
It is our view that the exemption of assigned accounts from garnishment by the holder thereof was intended to apply only to personal earnings of heads of family. The legislature intended that the provisions of the old code be retained but be^ clarified so as to harmonize with the effect of reenactment.
The constitutionality of the previous statute, G. S. 1949, 60-3495, was attacked on grounds similar to those urged by plaintiff here in the case of Miller v. Keeling, 185 Kan. 623, 347 P. 2d 424. Syllabus 1 reads as follows:
“The provision of our statute (G. S. 1949, 60-3495) which precludes garnishment of a portion of the earnings of a judgment debtor in the manner and under the conditions set forth in such section, where the creditor sells, assigns, sends or delivers the account to a collector or collection agency for collection, is not invalid as being violative of the ‘equal protection of the laws’ clause of the fourteenth amendment to the federal constitution or of section 1 of the bill of rights of the Kansas constitution.”
The appellant in this case centers his argument for unconstitutionality on the claim that subsection (d) is discriminatory and does not have a uniform operation throughout the state as required by article 2, section 17 of the Kansas constitution. Article 2, section 17 was not specifically referred to in Miller v. Keeling, supra; however, we think the language used therein not only applies but entirely resolves questions raised by appellant here. We stated, commencing at page 627 of the opinion:
“We think it may not be said the statute creates an arbitrary and unreasonable classification resulting in unequal protection of the laws. In fact, under and by virtue of its very provisions, the remedy of garnishment is made available to all creditors—provided they observe its terms. The choice is theirs. The. general rulte is that exemption laws are to be liberally construed in favor of those intended to be benefited and favorable to the objects and purposes of the enactment (22 Am. Jur., Exemptions, §6, p. 9; Mallory v. Berry, 16 Kan. 293; Dowd v. Heuson, 122 Kan. 278, 280, 252 Pac. 260, 52 A. L. R. 823), and, with respect to the exemption of wages or earnings, it has been said that the purpose of such exemption is to protect a class of persons who are largely dependent on their wages for support, as well as their families and dependents who look to them for a living, and that such a statute should receive a liberal construction, rather than one which would defeat the benevolent object aimed to be accomplished (22 Am. Jur., Exemptions, § 64, p. 56). In enacting the specific proviso in question perhaps the legislature had in mind to protect the dependents of wage earners from repeated harassment by ‘professional collection agencies.’ Be that as it may—it was within the province of the legislature to enact the proviso, and it is not invalid on either of the grounds asserted.”
Under our construction of the language of subsection (d) there is no merit to appellant’s argument of a violation of the require ments of section 16, article 2 of the Kansas constitution relating to subject and title of bills.
We adhere to our former ruling in Miller v. Keeling, supra, as to the validity of the statute in question.
In conformity with the views stated herein the judgment of the district court is therefore affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal from a lump-sum judgment of workmen’s compensation award entered by the district court pursuant to G. S. 1961 Supp., 44-512a.
Counsel for the parties filed a stipulated and agreed record which is summarized as follows: On October 28, 1963, the examiner granted the plaintiff, Dale F. Scammahorn, a workmen’s compensation award and ordered the defendant, Gibraltar Savings & Loan Association, to pay $9,629.73 compensation and $1,937.20 medical benefits. Gibraltar requested a review by the director of workmen’s compensation who entered an order November 20, 1963, affirming the award. Two days later Gibraltar appealed the award to the district court, which was docketed as case No. 15,892-B, and is appeal No. 44,146, Scammahorn v. Gibraltar Savings & Loan Assn., 195 Kan. 273, 404 P. 2d 170, this date decided.
On December 5, 1963, plaintiff served a demand for all compensation and medical expenses due and unpaid, upon Gibraltar and its attorney. Gibraltar paid the medical benefits to the plaintiff, which he accepted, but it refused to pay the demand for the full compensation awarded.
On December 19, 1963, the plaintiff served an amended demand upon Gibraltar for all compensation due and unpaid in the amount of $9,629.73. However, on December 18, 1963, Gibraltar tendered to plaintiff all compensation due for the ten-week period next preceding the director’s decision of November 20, 1963, and did thereafter make weekly tenders of checks in the sum of $23.25 each for compensation due the plaintiff as ordered by the examiner and approved by the director of workmen’s compensation, up to and including January 24, 1964. The plaintiff refused to accept Gibraltar’s weekly tender of compensation due, and returned each of its checks as they were tendered.
On January 24, 1964, the plaintiff commenced this action to recover a lump-sum judgment of compensation awarded in the sum of $9,629.73. He alleged he had made all statutory demands and performed all other conditions precedent, but that Gibraltar had failed to pay all compensation which was then due and unpaid.
Gibraltar’s answer alleged that plaintiff’s award for compensation was pending on appeal in the district court in case No. 15,892-B; that it had complied with the provisions of G. S. 1961 Supp., 44-556, now K. S. A. 44-556, by filing a bond with the district court in accordance with provisions of G. S. 1949, 44-530, now K. S. A. 44-530, and had tendered all compensation due for the ten-week period next preceding the director’s decision and all compensation accrued since that time and that the plaintiff had returned all payments except the payment of medical expenses, which was retained.
The parties stipulated that Gibraltar had no workmen’s compensation insurance and that it had not taken steps to qualify as a self-insurer under the provisions of G. S. 1949, 44-532, now K. S. A. 44-532. Thereafter each party filed a motion for summary judgment.
On June 16, 1964, the district .court filed a written memorandum opinion containing its findings of fact and conclusions of law, and rendered judgment in favor of the plaintiff in the sum of $9,629.73.
The real issue presented is whether Gibraltar, who had no workmen’s compensation insurance and who had failed to qualify as a self-insurer as provided in 44-532, is entitled to plead as a valid defense to plaintiff’s action that it had complied with the provisions of K. S. A. 44-556 by appealing the award of compensation to the district court, filing a bond to stay proceedings and to insure the payment of compensation pursuant to K. S. A. 44-530, and tendering all compensation due for the ten-week period next preceding the director’s decision and all compensation accrued until plaintiff filed his action.
In its conclusions of law, the district court stated that prior to the amendment to 44-556 in 1961, Gibraltar could not plead the defense it alleged since the facts in the instant case were substantially the same as the facts in Teague v. George, 188 Kan. 809, 365 P. 2d 1087. In that case we held that a supersedeas bond filed by an employer and his insurance carrier under 44-530 did not stay the payment of compensation pending his appeal to the district court, or afford protection from a statutory action commenced by the claimant under 44-512a to recover a lump-sum judgment. The district court also noted that the 1961 amendment provided that “if the employer is insured,” or “if the employer is a self-insurer” and has posted bond, he is relieved to some extent of the holding in Teague, and since the parties stipulated that Gibraltar was not insured, it asked the question, “Was it a self-insurer?” In its memorandum opinion, the court stated:
“Section 44-532, G. S. Kansas 1949, described what it takes to be a self-insurer. It provides that every employer shall secure compensation to his employees by insuring in one of the following ways:
“ ‘First, by insuring and keeping insured the payment of such compensation with any stock corporation or mutual association or reciprocal or interinsurance exchange or association authorized to transact the business of workmen’s compensation insurance in the state of Kansas; or, second, by showing to the commissioner that said employer carries his own risk and is what is known as a self-insurer and by furnishing proof to the commissioner of his or its financial ability to pay such compensation for himself or it.’
“Admittedly, Gibraltar in this case did not take the steps to become a self-insurer within the contemplation of 44-532.
“What is the situation of an employer who is neither an insured, nor a self-insurer within the contemplation of 44-532? Either he has to be in a third category, different from either the insured group or the group of self-insurers. Or else it must be said that anyone without insurance is automatically a self-insurer.
“On the basis of section 44-532, my answer to the question posed is that Gibraltar is neither an insured nor a self-insurer and is not entitled to the benefits of the 1961 amendment to section 44-556.”
We think the district court erred in its conclusion of law that Gibraltar was not a self-insurer as that term is used in 44-556, and, consequently, it was entitled to plead its full compliance with the statute as a complete defense to plaintiff’s action to recover a lump-sum judgment. While the Teague case was decided after the 1961 amendment to 44-556 became effective, it was conceded that since all the proceedings and the judgment of the district court were rendered prior to the amendment, this court was not required to construe the amendment in deciding that case. Hence, we are called upon for the first time to ascertain the intent and purpose of the 1961 amendment to 44-556. That section authorizes any party to a workmen’s compensation proceeding to appeal from any decisions, findings, award or rulings of the director to the district court of the county where the cause of action arose upon questions of law and fact, by filing a written notice of appeal with the director within twenty days after the decision, finding, award or ruling appealed from, and the director shall transmit a certified copy of the notice of appeal to the clerk of the district court, who shall docket the cause for hearing as in other cases on appeal. The pertinent part of the 1961 amendment reads:
“Provided, That no compensation shall be due or payable until the expiration of such twenty (20) day period and then the payment of past due compensation awarded by the director shall not be payable, if within such twenty (20) day period notice of appeal to the district court has been filed and the right to appeal shall include the right to make no payments of such compensation until the appeal has been decided by the district court if the employer is insured for workmen’s compensation liability with an insurance company authorized to do business in this state or, if the employer is a self-insurer, and has filed a bond with the district court in accordance with section 44-530 of tire General Statutes of 1949: Provided, however, That the perfection of an appeal to the district court shall not stay the payment of compensation due for the ten-week period next preceding the director’s decision, and for the period of time after the director’s decision and prior to the decision of the district court in such appeal . . .”
In the same enactment that amended 44-556, the legislature also amended 44-512a by changing the period of time the statutory demand could be served from fourteen days to twenty days, so as to make the time within which to serve the demand and the time to appeal to the district court from an award of compensation to be coextensive. Previously, an employer found himself served with a 44-512a demand for payment, although the time in which he could appeal to the district court had not expired. The obvious purpose of this amendment was to make the period of timé in which an employer might appeal to be coextensive with the time in which demand under 44-5l2a could be served, and thus remove the hiatus between those times which previously existed.
Likewise, it is obvious the legislature intended by its amendment to 44-556 that if an employer was insured for workmen’s compensation liability, or if he was a self-insurer and had filed a bond with the district court pursuant to 44-530, he was relieved of payment of compensation during the first twenty days after the entry of the award if, within such twenty-day period, he perfected an appeal to the district court. However, the legislature also intended that if such an employer perfected an appeal to the district court, he was not relieved of payment of compensation due for the ten-week period next preceding the director’s decision and of additional payments in accordance with the terms of the award until the district court rendered its decision on the appeal. If an employer failed to make payment of compensation after his appeal was perfected, the legislature further intended that a statutory demand under 44-512a could be served.
Generally speaking, the legislature has classified “every employer” under the Workmen’s Compensation Act who shall secure compensation to his employees, into two broad categories—those who are insured by workmen’s compensation liability, and those who carry their own risk and are known as self-insurers and are financially able to pay all compensation allowed. (K. S. A. 44-532.) In the instant case, Gibraltar was not insured for workmen’s compensation liability, but it carried its own risk, and we think it is to be classified as a “self-insurer” as that term is used in 44-556. It is evident that by the 1961 amendment, the legislature sought to relieve employers from the holding in the Teague case, and intended by its use of the term “self-insurer” to cover any employer who carried his own risk and was not insured by workmen’s compensation liability. Such a construction is in accord with our holding in Willmeth v. Harris, 195 Kan. 322, 403 P. 2d 973, that statutes should be so construed as to carry out the legislative intent, and when such intent is once ascertained, it should be given effect even though the literal meaning of the words used therein is not followed. Further, that statutes should never be given a construction that leads to uncertainty, injustice, or confusion, if it is possible to construe them otherwise. Moreover, this construction of the statute works no hardship upon any employee who is awarded workmen’s compensation and from which award the employer has appealed to the district court. If the employer is a self-insurer, he is required as a part of his appeal, to file a bond in the district court undertaking to secure the payment of all compensation awarded to the employee, or he may file a certificate of a licensed or authorized insurance company that the amount of compensation awarded to the employee is insured by it. In any event, the payment of compensation awarded to the employee by the district court is secure, and in addition, the employer is required to pay to the employee the compensation due for the ten-week period next preceding the director’s decision and to further pay compensation in accordance with the terms of the award during the pendency of the appeal. And of equal importance, is the fact that the employer is given his day in court to have the district court determine the validity and amount, if any, of the compensation award.
From the foregoing, we conclude that when Gibraltar tendered all medical payments due to the plaintiff, which he accepted, and also tendered the payment of compensation due for the ten-week period next preceding the director’s decision, and made weekly tenders of the amount of compensation due him in accordance with the terms of the award, which he refused, there was no compensation due and payable to him within the meaning of 44-512a which the defendant had either refused to pay or had not tendered within twenty days after the date of service of the demand, and the plaintiff had no cause to recover a lump-sum judgment.
It follows that the judgment of the district court must -be reversed. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was brought on July 18, 1884, in the district court of Butler copnty, by A. H. Fuller against Mary A. Fuller, for a divorce, and to have a marriage supposed to have been consummated' between them set aside and held for naught, upon two grounds: First, that the defendant had a former husband living at the time of her marriage with the plaintiff; second, extreme cruelty on the part of the defendant toward the plaintiff.
The defendant answered, setting up: First, a general denial, except as to allegations specifically admitted in her answer; second, admissions on her part of the supposed marriage to the plaintiff, as alleged by him, and also that at the time of said supposed marriage she was the lawful wife of another, but alleged that at that time she believed that she had been divorced, and that her former husband was dead, and stated reasons therefor. The defendant also, by way of cross-petition or cross-bill, alleged good faith and good conduct on her part, and tbat by their mutual toil and industry while living together they had accumulated property to the amount of about $2,300; and that the plaintiff was, at the commencement of this action, worth about $3,500; and also alleged that the plaintiff had in various ways misconducted himself toward her, and then prayed for a divorce from him, and that he be required to pay her $1,000 alimony, and $200 attorney’s fees.
The plaintiff 'replied by setting up a general denial, except as to matters expressly admitted; alleging that while they lived together he received a pension of about $1,200, and that by investments thereof he had accumulated about the amount which the defendant claimed they had jointly accumulated, and that he was then worth about $3,000; and he also alleged further misconduct on the part of the defendant.
The case was tried September 22, 1884, by the court without a jury, but before proceeding with the trial the plaintiff with leave of the court struck out all that portion of the prayer of his petition which asked for a divorce, and afterward prosecuted his action merely for the purpose of having the supposed marriage between himself and the defendant declared to be a nullity. The plaintiff did not introduce any evidence tending to prove extreme cruelty on the part of the defendant, but introduced evidence merely tending to show the former marriage of the defendant, and that she had not been divorced, and that her former husband was still living. The defendant did not introduce any evidence, but offered to introduce evidence, tending to show that from $1,600 to $1,800, in value of the wealth of the plaintiff, was the product of the united labors of the plaintiff and the defendant while they were living together, and offered to introduce evidence tending to show that at the time of her marriage with the plaintiff he had full knowledge concerning her former marriage and her separation from her former husband, and also evidence tending to show that at the time of her marriage with the plaintiff she believed that she was not a married woman; but the plaintiff objected, and the court excluded the evidence, and both parties then closed their evidence. The court then made the following special findings, to wit:
“Upon the request of the plaintiff, the court makes in this case the following special findings of fact from the testimony-introduced :
“1. That on the 11th day of September, 1881, the plaintiff, A. H. Fuller, and the defendant, Mary A. Fuller, did enter into the bonds of matrimony, and did contract marriage in fact.
“2. That on the 27th day of May, 1876, in the city of Joplin, Jasper county, Missouri, the said defendant was legally married to one James R. McKee, who is still living.
“3. That at the date of said marriage in' fact between said plaintiff and defendant, the said defendant was then the lawful wife of said James R. McKee.
“4. The said defendant was married to the plaintiff under the name of Mary A. Walker.
“ 5. That said plaintiff was, at the time of commencing this suit, worth about three thousand dollars.
“6. That plaintiff is the equitable owner of lots 3, 4 and 5, block ‘ L/ of Herman and McKitrick’s addition to the city of Augusta, Kansas, which are worth about six hundred dollars, and which is the homestead of the plaintiff.”
Upon these findings the court below rendered judgment “that the marriage of the said plaintiff to said defendant be and the same is hereby declared and decreed null and void; that the plaintiff pay to said defendant the sum of six hundred dollars as alimony; and that the same be a lien on the homestead of said plaintiff, and in default of the payment thereof for the space of thirty days, that an order of sale issue for the sale of said homestead,” giving a proper, description thereof. The plaintiff, as plaintiff in error, now brings the case to this court, and complains especially of that portion of the judgment of the court below which awards to the defendant $600 as alimony. We think the judgment to this extent is erroneous. That a marriage, where one of the parties at the time has a husband or wife living, is void, absolutely and in all its aspects, we suppose no one will question. It requires no judgment of divorce or of nullity to render it void. It is void inherently and from, the beginning. Under our statutes, however, for prudential reasons, the innocent party is allowed, if he or she chooses, and by an ordinary action for divorce, to have the supposed or colorable marriage set aside and anulled. Also, the innocent party may maintain an action in equity to have such colorable marriage declared null and void. This equitable remedy is the kind of action which the. plaintiff in this case is now seeking to maintain, and which he has sought to maintain ever since he amended his petition in the court below, by striking out all that portion of the prayer of his petition which related to divorce. If the plaintiff may maintain this action, then the defendant cannot recover permanent alimony, for the following reasons: The action is not prosecuted under the statute authorizing alimony, and as the defendant in legal contemplation has never been the wife of the plaintiff, she is not entitled to alimony independent of the statute. The defendant, however, claims that she filed an answer, by way of cross-bill, asking for a divorce and alimony, and therefore that under her answer and by virtue of the statute she should recover alimony. In answer to this, it may be said that her answer or cross-petition does not state any cause of action for either divorce or alimony. It admitted that she was not the wife of the plaintiff and never had been, and because of her own incapacity and fault. And while it alleges some misconduct on the part of the plaintiff, it does not allege any such misconduct as would entitle her to a divorce or alimony even if she had been his wife, which she was not; and therefore, under no view that can be taken of the case can she recover alimony.
We have examined all the authorities cited by counsel for the defendant, and we do not think that any of them conflict with these views. We have also examined several other cases, and we think that this decision is in entire harmony with all of them. It is certainly in harmony with the case of Powell v. Powell,, 18 Kas. 371, 380, 381. It is our opinion, however, that in all judicial separations of persons who have lived to gether as husband and wife, a fair and equitable division of their property should be had; and the court in making such division should inquire into the amount that each party originally owned, the amount each party received while they were living together, and the amount of their joint accumulations. Of course these matters are not conclusively controlling. For instance, where a real marriage has taken place and alimony is granted to the wife because of the husband’s fault, such alimony may be granted out of his estate, although the wife may never have owned any property and never contributed anything to her husband’s wealth. Alimony, however, is never awarded to a woman who is not a wife, where she alone is at fault, and out of an estate to which she has contributed nothing- .
We think the court below erred as against the plaintiff in granting alimony to the defendant. Whether the court did not also err as against the defendant, in not hearing her testimony with regard to joint accumulations of property by her and the plaintiff while they were living together, is not before us. The defendant has not filed any petition in error or cross-petition in error in this court, nor is she seeking any reversal or modification of the judgment of the court below. ' We might here say that there was no evidence nor any admission in the court below showing that there were any joint accumulations of property, or that the defendant ever contributed anything toward the plaintiff’s wealth.
The judgment of the court below will be modified in accordance with this opinion.
All the Justices concurring. | [
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The following opinion was prepared by
Me, Justice Robb
and approved by the court during his lifetime:
This is an appeal from the trial court’s order of August 20, 1964, which summarily denied defendant’s second motion under K. S. A. 60-1507 seeking an order vacating the judgment and sentence entered approximately five years previously in the Reno county district court case No. 6813 of State v. Foulk.
Rriefly, the salient facts are that on July 7, 1964, in district court case No. 13985 under K. S. A. 60-1507, defendant filed a motion to vacate the judgment and sentence in case No. 6813, and on the same day, Albert S. Teed, a duly qualified and practicing attorney of Reno County, Kansas, was appointed as attorney to represent defendant.
The case was set for hearing on July 13, 1964, and on that date defendant appeared with his court-appointed counsel, withdrew his motion in case No. 6813, and asked that the matter be dismissed, which was done.
A complaint had been filed on October 18, 1960, charging defendant with the commission of a felony, concealing a mortgaged automobile of the value of more than $50.00, in violation of G. S. 1949, 58-318. On October 21, 1961, the court appointed Kenneth F. Ehling, as attorney for defendant and he thereafter appeared for and represented defendant throughout his preliminary hearing, his binding over to the district court, and trial therein. Ehling requested, and defendant was granted, a two year bench parole beginning November 8, 1961.
On June 1, 1962, as a result of the state’s motion of May 14, 1962, and hearing, the bench parole was revoked by the same judge who had granted it for the reasons that,
“. . . (a) defendant violated the laws of the state of Kansas, and (b) defendant failed to pay the court costs and restitution, as ordered by the court.”
On August 20, 1964, defendant filed a second motion under 60-1507 which was denied on the same date, and on August 31, 1964, defendant filed a notice of appeal from the trial court’s order summarily denying defendant’s second motion under 60-1507.
Through a civil proceeding K. S. A. 60-1507 provides a new approach to an individual serving time in one of our penal institutions to have the propriety of his criminal trial, prosecution and sentence reviewed by the same court which conducted the same. We believe the provisions of the statute are clear, unambiguous and definite in their entirety and fully reflect the intention of the legislature to grant an applicant or petitioner a right to compel such a proceeding. K. S. A. 60-1507 (a) provides:
“A prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States, or the constitution or laws of the State of Kansas, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may at any time move the court which imposed the sentence to vacate, set aside or correct the sentence.”
K. S. A. 60-1507 (c) provides:
“The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.”
We pause to emphasize that we are not here deciding any other points raised or the propriety of other remedies or means of approach which may be open to defendant.
We are of the opinion the statute means just what it says and until a future legislature sees fit to make any change, modification or enlargement thereof, this defendant properly commenced the proceeding under 60-1507 (a) whereby he could have had a full hearing, but when he and his counsel withdrew and dismissed the motion and case respectively, that matter was finally concluded and any further attempt to seek the same relief would be a second or successive attempt which is forbidden by 60-1507 (c). Thus the trial court did not err in his order of August 20, 1964, summarily denying defendant’s second motion under K. S. A. 60-1507 (a).
Judgment affirmed.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Fontron, J.:
This action is brought by the plaintiff, James M. Wilson, to recover for injuries received when the car in which he was riding, and which was driven by the defendant, William H. Rushton, crashed against a guardrail on U. S. Highway 1-70 immediately east of the K-99 overpass. At the conclusion of plaintiff’s evidence the trial court sustained the defendant’s motion for a directed verdict and the plaintiff has appealed. We shall refer to the parties as plaintiff, or Wilson, and defendant, or Rushton.
Both plaintiff and defendant, at the time of the accident, were students at Kansas State University and were members of the Sigma Chi fraternity. The plaintiff’s evidence showed the following: On Friday noon, February 5, 1965, the two young men were lunching at the same fraternal table when the defendant asked someone at the table if he wanted to go to Kansas City that weekend. Upon hearing this question, the plaintiff asked if Rushton was going to Kansas City and defendant replied he was and asked if plaintiff wanted to go along and share expenses. Ensuing conversations resulted in plans for both of them to go to Kansas City that afternoon, where Wilson planned to see his girl, to whom he was “lavaliered,” and Rushton wanted to see a girl he had dated.
On the way to the big city the defendant told plaintiff he was going to stay with his sister and invited the plaintiff to stay there, too. The plaintiff accepted this hospitable invitation, although he had originally planned to stay at Jan’s, his “lavalier.” The defendant furnished the gas going into Kansas City while the plaintiff paid the major part of the turnpike toll at the Kansas City exit. That evening the boys dated together and spent the night at the home of Rushton’s sister. The following day and evening the boys and their respective girls were together, and the boys spent the night with Rushton’s grandparents. On Sunday, after brunching with the grandparents, the boys began their homeward trek, after the plaintiff had purchased some gas for Rushton’s car.
Rushton paid the turnpike fee at the Topeka interchange and a stop was made in the capital city to purchase two candy bars and to interchange the windshield wipers because it was drizzling and the wiper on the driver’s side was not working well. The plaintiff fell asleep after leaving Topeka, and the first thing he remembered was the defendant saying “Look out, Jim.” At this time, Wilson glimpsed a car on the right hand side and a little in front of them. Rushton’s car was already turning and Rushton was turning the wheel to stop the skid, but was unable to control it, and the car crashed into the guardrail along the south side of the west bound lanes, with the front end of the car headed back toward the east. The right hand door of the car was pushed inward into the car and against the plaintiff, who sustained a badly fractured right leg with resulting permanent disability.
The plaintiff testified that his discovery deposition was taken two weeks before the trial, wherein he had deposed that in February Rushton visited him in the hospital and said that he, Rushton, had tried to pass another car and had changed lanes and was pulling up on it when he lost control and his car started to turn and slid off the road and that “it turned ice real quick, that there had been a glaze form on the road.” Wilson also testified he had not known of ice on the roadway until the accident occurred; that as he stepped out of the car onto the ground the surface was wet and slick; that he was sent to Salina by ambulance; that the roadway was terribly slick, and it took quite awhile to get from Manhattan to Salina. There was further testimony by the plaintiff that Rushton was a good and consistent driver.
At the conclusion of the plaintiff’s evidence the defendant filed a motion for a directed verdict “for the reasons that plaintiff failed to establish that defendant was guilty of negligence or that plaintiff was a passenger for hire under K. S. A. 8-122b.” The court found the motion should be sustained on both grounds and directed a verdict in the defendant’s favor.
The points before us in this appeal, as phrased by the plaintiff, are whether the trial court erred in holding as a matter of law; (1) that plaintiff was a guest, and (2) the defendant was free from negligence. It is vigorously contended that both issues should have been submitted to a jury, and that the court erred in directing a verdict.
Our attention will be directed first to whether there was sufficient evidence of negligence on the part of the defendant to go to the jury, for we believe the answer to that question will be decisive of this appeal.
In approaching the question, we are mindful of our rule that in reviewing the propriety of an order sustaining a motion for a directed verdict, we are required to resolve all facts and the inferences reasonably to be drawn therefrom in favor of the party against whom the ruling is sought. (Weber v. Wilson, 187 Kan. 214, 216, 356 P. 2d 659; Lackey v. Price, 190 Kan. 648, 657, 378 P. 2d 19.)
In supporting his contention that the issue of defendant’s negligence should have been submitted to the jury, the plaintiff relies, in his brief and oral argument, on the doctrine of res ipsa loquitur, citing Rupe v. Smith, 181 Kan. 606, 313 P. 2d 293 and 8 Am. Jur. 2d, Automobiles and Highway Traffic, §916, p. 463. He states: “The issue of negligence should have been submitted to the jury under instruction No. 15.30 of Pattern Instruction Kansas.” The instruction referred to relates to the doctrine of res ipsa loquitur and is found in PIK, p. 445.
The defendant insists that the plaintiff did not plead nor did he rely on the doctrine of res ipsa loquitur at the trial and, furthermore, that this theory was not presented to the trial court. Accordingly, he argues the doctrine is not available to the plaintiff on appeal.
The record is barren as to whether the defendant relied on the doctrine of res ipsa loquitur at the trial or ever presented it to the trial court. In the absence of any showing in regard thereto, we are not prepared to say that plaintiff may not raise the point here.
It appears to us that the allegations of negligence contained in plaintiff’s petition were sufficiently broad to permit plaintiff to proceed on the theory of res ipsa loquitur, provided, under the established facts, the doctrine was applicable. The allegations as to negligence read as follows:
“On Sunday, February 7, 1965, at about 5:30 P. M. and on the return trip to Manhattan, Kansas, the defendant negligently operated and maintained his automobile in such manner that while traveling west on Highway 1-70 at a place just east of the K-99 overpass bridge, the defendant caused or permitted said automobile to spin around and slide backwards in a westerly direction on the south side of Highway 1-70 in such manner that the south guard rail along said highway entered the right side of said automobile and caused severe personal injuries to the plaintiff, who was then asleep in the right front seat and had been asleep for some time prior to the accident.”
These allegations of negligence are general, not specific, in their nature. No specific acts of negligence were set out in the petition which would preclude application of the rule of res ipsa loquitur, as was the case in Byland v. Powder Co., 93 Kan 288, 144 Pac 251. Rather, we view the instant petition as comparable, in content, to those considered by us in Woods v. Kansas City, K. V. & W. Rld. Co., 134 Kan. 755, 8 P. 2d 404, and in Primm v. Kansas Power & Light Co., 173 Kan. 443, 249 P. 2d 647. In neither of those cases had the respective plaintiffs pleaded such specific acts of negligence as would remove them from the operation of the rule. We are of the opinion that plaintiff is not precluded from basing his appeal, so far as negligence is concerned, on res ipsa loquitur.
This conclusion does not, of course, dispose of the question of whether the doctrine was applicable under the facts shown of record. This court, as is true with a great many courts of this country, has extended the doctrine of res ipsa loquitur to an ordinary automobile negligence case. In Rupe v. Smith, supra, we held:
“A petition in an ordinary automobile negligence case may contain allegations of fact which, if proved, authorizes the application of the doctrine of res ipsa loquitur. The same rules are followed in determining its application as are followed in other tort cases. (Syl. 2.)
In Rupe, the plaintiff sought to recover for the wrongful death of his decedent. The petition alleged, in substance, that at the time of the fatal accident the plaintiff was asleep in the front seat of an automobile driven by and under the control of the defendant; that the car had no apparent defects; that the road was level, straight, black topped, dry of surface, with no defects and with unlimited visibility; that under these conditions the defendant drove the car off the road and into a concrete embankment; that the plaintiff had no knowledge of how or why the fatal accident occurred. This court held that the allegations, if proved, would authorize application of the doctrine of res ipsa loquitur.
There is marked dissimilarity between the facts alleged in Rupe and the facts shown by plaintiffs evidence in this case. For this reason we believe that our decision in Rupe is not controlling here.
A great deal has been said by many courts on the general subject of res ipsa loquitur, including the principles which govern its application, and there is little that need be added here. The rule is not one of substantive law, but one of evidence, and its applicability in any given case depends upon the particular circumstances which are shown to exist. It is well to remember, when attempting to bring a negligence action within the embrace of the res ipsa loquitur doctrine, that it is not the injury itself which justifies its application, but the attendant circumstances.
In Lamb v. Hartford Accident & Indemnity Co., 180 Kan. 157, 161, 300 P. 2d 387, this court said:
“. . . It is settled in Kansas that the fact an injury occurs is not sufficient to establish liability; that negligence is never presumed but must be established by proof; that in cases where the doctrine is applicable and direct proof is lacking, proof is made, if at all, by circumstantial evidence: that is, proof of injury and of the circumstances surrounding its occurrence are such as to leave no reasonable conclusion to be drawn other than that the injury occurred because of defendant’s want of care. (Mayes v. Kansas City Power & Light Co., supra; Starks Food Markets, Inc. v. El Dorado Refining Co., supra; Sipe v. Helgerson, supra; Waddell v. Woods, supra; Nichols v. Nold, supra; Waddle v. Brodbeck, supra; 38 Am. Jur. Negligence, §300, p. 996; 65 C. J. S., Negligence, §220 [8], p. 1014.) . . .”
In viewing the totality of the circumstances surrounding this case it becomes apparent that the defendant was suddenly confronted with an icy condition on the highway and that his car went into a skid, despite efforts to control it. The general rule applicable to a situation of this kind is set out in 8 Am. Jur. 2d, Automobiles and Highway Traffic, §929, pp. 477-478:
“It is generally held that the mere fact that a motor vehicle skids on a slippery pavement does not of itself constitute such evidence of negligence upon the driver’s part as to render the doctrine of res ipsa loquitur applicable. Skidding is not generally an occurrence of such uncommon or unusual character that, unexplained, it furnishes evidence of the motorist’s negligence. However, the doctrine is applicable where the circumstances are such as to give rise to an inference of negligence on the part of tire driver of the skidding vehicle.”
A statement to similar effect is found in an annotation in 58 A. L. R., Automobiles — Skidding, p. 269:
“It has been generally held that the mere fact that an automobile skids on a slippery pavement does not of itself constitute evidence of negligence upon the driver’s part so as to render the res ipsa loquitur doctrine applicable.”
The Wisconsin Court in Linden v. Miller, 172 Wis. 20, 177 N. W. 909, 12 A. L. R. 665 said:
“. . . In order to make the doctrine of res ipsa loquitur apply it must be held that skidding itself implies negligence. This it does not do. It is a well known physical fact that cars may skid on greasy or slippery roads without fault either on account of the manner of handling the car or on account of its being there. . . .” (p. 22.)
In Christ v. Wempe, 219 Md. 627, 150 A. 2d 918, it was stated:
“The majority of courts hold that the mere fact that a vehicle skids or slides on a slippery highway does not of itself constitute evidence of negligence and that in such cases the doctrine of res ipsa loquitur does not apply.” (p. 635.)
See, also, Davis v. Sparkman,_Tenn._, 396 S. W. 2d 91, and McCracken v. Curwensville Borough, 309 Pa. 98, 163 A. 217, 86 A. L. R. 1379; Brown v. Mulready, 140 Neb. 500, 300 N. W. 421.
We cannot say the circumstances shown present in this case are sufficient to give rise to an inference of negligence on the part of the defendant driver. The statement made by Rushton, which the evidence shows was made the latter part of February, was that the roadway had turned to ice real quick, and there is nothing in the evidence of record to indicate otherwise. We need not speculate what inferences might reasonably have been drawn had the defendant been driving on slippery highways known to be icy.
In our opinion it cannot be said the trial court erred in concluding that there was insufficient evidence of negligence to be submitted to a jury and in directing a verdict on such ground. Because of our conclusion in this regard we find it unnecessary to discuss whether or not the evidence showed plaintiff to be a guest within the purview of K. S. A. 8-122b.
The judgment is affirmed.
Schroeder, J., not participating. | [
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The opinion of the court was delivered by
Harman, C.:
This is an appeal from an order denying post-conviction relief.
Appellant-petitioner, upon his plea of guilty, was convicted July 2, 1951, of the crime of bank robbery, and received the statutory sentence (G. S. 1949 [now K. S. A.] 21-531). Still confined in the penitentiary under this sentence, he filed in the sentencing court his motion to vacate the judgment pursuant to K. S. A. 60-1507.
In his motion, filed pro se on a printed form as prescribed in the appendix to Rule No. 121 of this court, appellant stated in paragraph 10 as grounds for attacking his sentence that (a) he did not have the assistance of counsel at all stages of the criminal proceedings and (b) his plea of guilty was coerced in that he was not advised of his legal right to remain silent. These grounds were amplified in an argument made a part of the motion, as hereinafter related. In paragraph 11 of the motion, still following the prescribed form, wherein the facts supporting each ground set out in paragraph 10 are to be stated and the names of witnesses or other evidence relied upon are to be listed, appellant stated he relied upon the transcript of the justice of peace and the journal entry of judgment of his conviction. Noteworthy is the fact appellant named no witness upon whom he intended to rely in support of his application.
The trial judge, successor in office to the sentencing judge, on May 9, 1966, without appointment of counsel or plenary hearing, denied relief. In his consideration of the motion the trial judge had before him both documents relied upon by appellant as evidence.
The' transcript of the justice of the peace, who acted as examining magistrate, disclosed the following: A complaint was filed in that court June 29, 1951, by the then county attorney of Bourbon county charging appellant with the armed robbery of the Bank of Bronson, Bronson, Kansas, on June 28, 1951. Warrant for appellant was issued, executed and returned June 29, 1951. Appellant was “arraigned” in the magistrate court June 29, 1951, he “entered a plea of not guilty as charged in the complaint and waived his preliminary hearing.” The magistrate found that the offense of bank robbery had been committed, that there were probable grounds to believe appellant committed the offense charged, and he bound appellant over to the district court of Bourbon county for trial, committing him to jail in default of the bail fixed.
On the same day, June 29, 1951, the Bourbon county attorney filed in the district court an information charging appellant with the same offense.
The journal entry of judgment of -appellant’s conviction disclosed the following: Appellant appeared in person before the district court of Bourbon county on June 29, 1951. He was then “formally arraigned” and the information was read to him. In response to inquiry by the court appellant stated he did not have counsel and had ño money to employ an attorney. The court then appointed Fred W. Bayless, a practicing attorney of Fort Scott, Kansas, as attorney to represent appellant. On July 2, 1951, appellant again appeared before the district court, accompanied by his court-appointed attorney. The journal entry then recited:
“Whereupon, the said defendant, August C. Hensley was questioned by the Court as to whether or not that he had conferred with his attorney, Fred W. Bayless and whether or not he was ready to plead to the Information filed in said above entitled action and the said defendant, August C. Hensley having informed the Court that he had conferred with his attorney and was ready to plead to the Information, the Court caused the defendant to stand and inquired of him as how he pled to the Information filed in said above entitled action.”
Appellant thereupon pleaded guilty, he was afforded the right to allocution and was sentenced.
As elaborated by his argument accompanying his motion, appellant’s principal contention to the trial court was that he had no counsel at his preliminary examination. The trial court, in accord with oft-repeated authority, correctly ruled an accused has no constitutional right to appointed counsel at preliminary examination and that failure to provide an accused such counsel does not constitute error in the absence of prejudice to his substantial rights, and the court further ruled no prejudice was shown. Although the magistrate had no power to entertain a formal plea to the complaint as was done, and the action with regard thereto was a nullity, the plea entered was one of not guilty and no prejudice resulted from the irregularity.
Appellant expands his argument as to his right to counsel to encompass the accusatory stage made famous by the names Escobedo and Miranda. The doctrine of those cases, decided in 1964 and 1966, will not be retroactively applied to a prior Kansas conviction (Addington v. State, 198 Kan. 228, 424 P. 2d 871).
Appellant further contends his plea of guilty was coerced because at the time he entered it he was not advised of his right to remain silent (stand mute) when called upon to plead. In Allen v. State, 199 Kan. 147, 427 P. 2d 598, we stated:
“In a 60-1507 proceeding, in the absence of evidence other than petitioner’s uncorroborated statements, it must be assumed that counsel fairly and fully advised him of his rights. . . .” (Syl. ¶2.)
Assuming appellant was not so advised and that he was not otherwise aware he could stand mute, the validity of the proceedings is in nowise affected. We know of no requirement, statutory or otherwise, that a court must advise an accused about to be arraigned that he may refuse to answer or plead particularly where the accused is represented by counsel (see Crabtree v. Boles, 229 F. Supp. 427, affirmed 339 F. 2d 22). K. S. A. (formerly G. S. 1949) 62-1305, provides:
“When any person shall be arraigned upon any indictment or information, it shall not be necessary to ask him how he will be tried; and if he deny the charge in any form, or require a trial, or if he refuse to plead or answer, and in all cases when he does not confess the indictment or information to be true, a plea of not guilty shall be entered, and the same proceedings shall be had in all respects as if he had formally pleaded not guilty.”
Standing mute, with certain exceptions not here material, is thus consequentially equivalent to pleading not guilty. Appellant could have pleaded not guilty and he does not contend otherwise. Instead, he pleaded guilty. Conceding an inherent privilege to stand mute, he could not possibly be prejudiced on the basis asserted here— coerced plea of guilty — by lack of knowledge as to such right; his contention of compulsion based on any such lack is frivolous.
This, disposes of the complaints made before the trial court and hence properly before this court on appeal, and the opinion might well end here.
However, appellant has sought upon appeal to include additional grounds for relief not presented to the trial court. If these matters were properly before us for review — and they are not — relief could not be granted. Upon the showing made, the sentencing court did not err in not extending appellant another preliminary examination after he had waived that right. Nor did it err, as belatedly alleged, in not allowing appellant more time to confer with counsel appointed for him on Friday, June 29, 1951, prior to his arraignment and sentencing Monday, July 2, 1951. As already related, the record affirmatively reveals the sentencing court specifically inquired into this subject prior to the plea and sentencing, and wholly refutes any contention of insufficient, time.
As stated in Thompson v. State, 197 Kan. 630, 419 P. 2d 891:
“A judgment of conviction of crime carries with it a presumption of regularity, and where one convicted of a crime attacks such a judgment pursuant to K‘. S. A. 60-1507, on the ground that his constitutional rights were violated, he has the burden of proof to establish such fact by a preponderance of the evidence, and such burden is not sustained by unsupported and uncorroborated statements by the plaintiff.” (Syl. |2.)
Judgment affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Horton, C. J.:
The facts in this case are as follows: On September 5, 1882, Edward Krapp filed his bill of particulars before a justice of the peace of Wabaunsee county, against E. W. Eldridge, to recover $67.50. To this bill of particulars, E. W. Eldridge filed an answer, setting forth an alleged set-off, consisting, among other things, of $100, for attorney-fees in the case of the The State v. Wilfelt, alleged to have been rendered by James Carroll at the instance of Krapp, which Carroll transferred to Eldridge, in writing, on July 10, 1882. Upon the hearing of the case, the justice rendered judgment in favor of Krapp for $5.50 and costs, but refused to consider the alleged set-off of $100, on the ground that the fees were not due and not a legitimate set-off in the case. Subsequently, and on May 16, 1883, Eldridge brought an action before a justice of the peace of Wabaunsee county against Krapp to recover the attorney-fees of $100, and upon trial before the justice, judgment was rendered in his favor. Krapp appealed to the distriot court, and in that court Eldridge again recovered judgment. Krapp complains of this judgment. First, it is urged that as the $100 contained in the answer of tbe action of Krapp against Eldridge as a set-off was not withdrawn from the consideration of the justice before judgment, that the judgment in that action is a bar to any recovery on this claim. Not so. The justice refused expressly to pass upon or consider the claim, because it was not due at the commencement of that action, and therefore it was not adjudicated. The plea of res adjudieata, therefore, is not good. The attorney-fees in the case of The State v. Wilfelt were for services from March 3,1882, to March 3,1883, rendered under a contract that Carroll was to receive $100 for defending the said Wilfelt in a criminal prosecution pending against him for assault with intent to kill. The services were to end with the defense of Wilfelt in the district court.
The transfer by Carroll to Eldridge was made on July 12, 1882. It is therefore urged that as the attorney-fees were not due at the date of the written assignment from Carroll to Eldridge, the assignment was void. Such is not the law. “If rights are vested, or possibilities are distinctly connected with interest or property, they may be sold.” (1 Parsons on Contracts, 5th ed., p. 523.)
Again, “Any right under a contract, either expressed or implied, may be transferred.” (Id. 223.) This is so, whether the amount of the contract is due at the time of the assignment, or to become due thereafter. At common law, the transfer of a chose in action was forbidden. Under the code, the old common-law doctrine as to the assignment of choses in action has been materially departed from. (Code, §§ 10, 26, 27, 28.)
Counsel cites authorities under the common law, but these are not applicable in the present case. At common law, the courts of equity for a long time disregarded the rule forbidding-the transfer of a chose in action, and, as a general rule, they permitted the assignee of a chose in action to sustain a suit in his own name, if he could go into equity at all. In some cases of a transfer of a chose in action, the device was adopted of allowing the assignee to sue in the name of the assignor. In this case, although the assignment was made before all of the attorney’s services were rendered, yet the action was not brought to recover the same until Carroll had performed his contract, and the attorney-fees had become due.
Finally, it is urged that the trial court committed error in not compelling Eldridge to answer, upon cross-examination, “what he paid for the account.” The amount he paid was immaterial. The account was transferred and assigned in writing.to him, and to this writing Carroll had attached his signature. Where an account is assigned absolutely, so that the assignee becomes in fact the owner thereof, he is the real party in interest. As Carroll had transferred in writing this account to Eldridge, it was immaterial to Krapp whether he had given it to him or sold it to him. After such transfer and assignment, Eldridge was the 'only person entitled to maintain an action therefor. Of course, Eldridge, as assignee, had no rights.which his assignor did not possess. Krapp was entitled to make all defenses against the account in Eldridge’s hands which he might have made if the action had been brought in the name of Carroll.
The judgment of the district court must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
VALENTINE, J.:
On the trial of this case in the court below, the defendant, T. B. Sweet, objected to the introduction of any evidence on the part of the plaintiff, E. G-. Hentig, upon the ground that the petition of the plaintiff does not state facts sufficient to constitute a cause of action. The coui’t below sustained the objection, and refused to admit any evidence under the petition. The plaintiff, as plaintiff in error, now seeks a reversal of such ruling, by a petition in error in this court. The foundation of the present action is the following written instrument, with the assignment thereof, to wit:
“Topeka, Shawnee County, Kansas.
“This agreement, made and entered into this 19th day of October, 1874, between Reuben D. Coldren, party of the first part, and Timothy B. Sweet, of the second part, witnesseth:
“That whereas, both parties hereto have advanced and loaned to the Topeka Rolling Mill Company various sums of money, and are jointly liable as indorsers on the paper of said company;
“And whereas, the Topeka Rolling Mill Company have voted to secure said indorsed paper by pledges of first-mortgage bonds;
“And whereas, said rolling mill company have given to said Sweet a second mortgage to secure their indebtedness to him, and to secure him against loss as an indorser, therefore, it is hereby agreed by the parties hereto, that whereas, the said first-mortgage bonds have been placed as collateral to secure part of debt for which said second mortgage was given, that said second party shall assign and set off to said Reuben D. Coldren, of the first part, an interest in said second mortgage equal in amount to the proportion said Coldren has advanced or loaned to said company, bears to the amount said Sweet has advanced or loaned to said company, to the end that after the payment of the amounts for which the parties hereto are indorsers, the parties hereto may be alike secured by said second mortgage.
“And it is further agreed by the parties hereto, that they will stand by each other in carrying forward to a successful issue the rolling mill enterprise, so far as they can, without incurring further liability or advancing more money.
“ It is further agreed that said Sweet has advanced or loaned .said rolling mill company more money than said Coldren.
“And whereas, it is hoped that the mill will make money, it is agreed that after the paying of running expenses, any surplus profit shall be applied to paying off the debts said Sweet is indorser for, and the amount said mill owes him, until the same is reduced to the amount said Coldren has advanced or loaned said mill company; that so far as the parties hereto are concerned, they may be equally interested in said mill company, and entitled to equal profits.
[Signed] T. B. Sweet.
R. D. Cor/DREN.”
Indorsed:
“May 12, 1875.— For value received, I assign and sell to J no. R. Mulvane all my rights and interest in and to the within contract. R. D. ColdreN.”
“February 4, 1882.
“ For value received, I hereby sell and assign to F. G. Hen-tig all my right, title and interest in and to the within contract, without recourse. JOHN R. MulvaNE.”
As will be seen from the foregoing indorsements, Hentig, through Mulvane, is the mere assignee of Coldren; and all his rights are founded solely upon the foregoing instrument in writing; and yet his counsel speak of the instrument as
“A writing, facetiously termed an agreement, but which, by its grandiose vagueness, eloquent incomprehensibility, and pompous circumlocution, impresses one strongly with the suspicion that its author — Mr. Sweet — must have been accustomed to diplomatic correspondence, and had imbibed deeply of the spirit of M. Talleyrand or. Machiavelli. The elegant document may be found on pages 7, 8 and 9 of the printed case-made, and will be found as entertainingly obscure as the solution of a kindergarten puzzle.”
Now, notwithstanding all this vagueness and obscurity, counsel have done but little to enlighten this court. The petition below and the briefs of counsel are about as perplexing and bewildering as the “agreement” or “contract” itself. The plaintiff, in addition to setting forth this instrument in writing, or “contract,” in his petition, also alleges, among other things, the following: At the time when this instrument in writing or “contract,” was executed, and prior thereto, the Topeka Rolling Mill Company was a corporation acting under the laws of the state of Kansas, with R. D. Coldren as its president and T. B. Sweet as its vice president and treasurer. The company at that time was embarrassed financially. Sweet had loaned it a sum of money, the amount of which is unknown to the plaintiff, but not exceeding $15,000. Coldren had also loaned the company a sum of money, amounting to $13,122.39. Sweet and Coldren were jointly liable as in-dorsers of commercial paper given by the company to others, to the amount of $12,000. The company had given to Sweet second mortgages upon all its real and personal property, to secure him. The “contract,” however, mentions only one mortgage. The petition further alleges: The rolling mill company had given to Coldren, as collateral security to him, fourteen of its first-mortgage bonds, of $1,000 each. The “contract,” however, speaks of the rolling mill company as having voted to seoure the indorsed paper by pledges of first-mortgage bonds. The “contract” does not state, however, with whom the bonds were to be deposited as pledges, or what the amount of such bonds should be. The “contract” also speaks of first-mortgage bonds having been placed as collateral security for part of the debt for which the second mortgage was given. But with whom these bonds were placed or deposited, and what amount they represented, is not stated. But as they were intended to secure a part of the debt for which the second mortgage was given, and as the second mortgage was given to Sweet, and to secure him, it would seem probable that they were placed or deposited with Sweet, and not with Coldren. No fourteen first-mortgage bonds are mentioned in the “contract,” and none are mentioned as security to Coldren. The petition further alleges: After the execution of said written instrument or agreement, “Coldren, pursuant to said agreement, delivered to the said defendant the fourteen first-mortgage bonds,” “without other consideration than the execution of said agreement,” and they were a portion of a series of sixty bonds of $1,000 each. On December 21, 1874, A. C. Huidekoper, the holder of thirty-one of said first-mortgage bonds, commenced an action against the rolling mill company and many others, in which action a receiver was appointed who took charge of all the rolling mill property, and in which action, on September 21, 1876, many judgments were rendered against the rolling mill company — one in favor of the Birmingham Iron Foundry for $37,596, secured by mechanics’ liens, which judgment was declared to be a first lien upon the property of the company; one or more in favor of Huidekoper and others, for $72,313.80, secured by the aforesaid first-mortgage bonds, which judgment or judgments were declared to be second liens upon the property; and one in favor of the defendant, Sweet, for $36,599.40, secured by said second mortgages, which judgment was declared to be a third lien upon the property. The other judgments were not declared to be liens upon any property. Afterward the rolling mill property was sold under said judgments for $60,001, and the amount was credited upon the judgments constituting the two prior liens on the property, leaving Sweet’s judgment, which constituted the third lien, and the other judgments, which were not liens upon the property at all, wholly unsatisfied, except that Sweet afterward by execution collected about $1,000, to be credited on his judgment. The debt which the rolling mill company owed to Coldren has never been paid, but is still due and unpaid. The debts due on said commercial paper indorsed by Sweet and Coldren have never been paid, but they have all long since been barred by the statute of limitations. There is an obscure allegation in the petition that some person or persons procured a judgment or judgments upoD the aforesaid fourteen first-mortgage bonds, and that such judgment or judgments were assigned by the holder or holders thereof to Anna B. Sweet, the wife of the present-defendant, and that the amount of such judgment or judgments was afterward paid to her by Huidekoper and the Birmingham Iron Foundry, for the benefit of Sweet. There are also allegations in the petition that by a previous agreement between Sweet, Huidekoper and the Birmingham Iron Foundry, these three parties did not contest each other’s claims against the company, and that after the property of the company was sold as aforesaid, they shared equally the proceeds thereof; or, in other words, that Sweet got one-third of the proceeds of the sale. Many other things are stated in the petition, but they have only such a remote connection with the contract that it is hardly necessary to state them. We may, however, make some reference to some of them hereafter.
By the assignment of the foregoing contract neither Mulvane nor .Hentig succeeded to all the rights, or interests, or duties of Coldren with respect to the rolling mill company, whatever may have been the intention of the parties. . Neither Mulvane nor Hentig became the president of the company, nor a director thereof, nor even a stockholder therein, nor was either entitled to receive dividends, nor was either liable for the debts of the company. Indeed, neither of them had any interest in the affairs of the company, unless it was as the assignee of a creditor of the company. Whatever may have been intended by the assignment or expected therefrom, we shall treat it at most as ouly an assignment of Coldren’s claim for money against the rolling mill company, with the securities in Sweet’s hands to secure its collection, and Sweet’s duty to collect the claim if possible. And possibly even this view of Hen tig’s rights under the assignment is too liberal as to him. The contract gave to Sweet and Coldren, in some undefined manner, some indefinite number and amount of first-mortgage bonds to secure the commercial paper of the company, indorsed by Sweet and Coldren; but as the debts evidenced by such commercial paper and secured by such bonds have long since been barred by the statute of limitations, such bonds, as well as the debts themselves, have become defunct, so far as this transaction is concerned, and the bonds have no further office to perform. If, however, the bonds have not become absolutely defunct, but have some office to perform in some other transaction, still when the debts became barred so that neither the company, nor Sweet, nor Coldren was any longer liable for the payment of such debts, the company was entitled to have the bonds returned to it so that it might use them in such other transaction. None of the other persons were entitled to them under the contract and pleadings; certainly not Hentig. Neither Mulvane nor Hentig was ever liable to pay such debts; hence under no theory would they be entitled to the bonds. But Coldren was entitled to be repaid by the rolling mill company the sum of $13,122.39, which he had loaned to said company, and was entitled, along with Sweet, to the benefit of one of the second mortgages given by the company to Sweet; and for the purposes of this case, we shall assume, though this assumption may be questioned, that to this extent Hentig has succeeded to the rights of Coldren. Coldren, however, was never entitled to demand that Sweet should pay Coldren’s claim against the rolling mill company, nor had he any right to demand that Sweet should transform his second mortgages into first mortgages, or make them prior to or more effectual than the first-mortgage bonds, or prior to or more effectual than any other liens which were prior to the liens of his second mortgages. Now it does not appear from any allegation of the petition that Sweet was ever able to realize anything upon his second mortgages, or upon any of the mortgages which he held; but all the property of the rolling mill company, except $1,000 worth, was taken to pay the debts secured by the first-mortgage bonds and the mechanics’ liens; and it does not ap pear that said $1,000 worth of property was covered by the defendant’s second mortgages. Nor does it appear that by the reception of this $1,000 by the defendant that his claim against the rolling mill company was reduced down to an amount equal to or less than the claim of Coldren against the rolling mill company; and certainly, under the contract, neither Col-dren nor any assignee of his can claim anything from Sweet, until after he has received an amount sufficient to reduce his claim below that of Coldren. So far as the petition shows, the claim of Sweet against the rolling mill company still remains due and unpaid, except the $1,000 which he collected on his judgment, and still remains much in excess of Coldren’s claim against the rolling mill company.
It is alleged in the petition that Huidekoper and the Birmingham Iron Foundry, who were holders of judgments rendered on the claims secured by first-mortgage bonds and mechanics’ liens, paid to Sweet one-third of the proceeds of the sale of the company’s property, and paid to Mrs. Sweet about $20,000, presumably out of such proceeds; but we do not think that these transactions furnish the basis for any cause of action in favor of Hentig and against Sweet; for neither Sweet, nor Coldren, nor any of Coldren’s assignees, were entitled to any of such proceeds. And besides, the allegations with respect to the payment to Mrs. Sweet are too indefinite to be considered as the statement of a cause of action in favor of Hentig and against Sweet. Indeed, we do not think the petition of the plaintiff in any manner states any cause of action in favor of Hentig and against Sweet.
With this view of the case, it is unnecessary for us to express any opinion with regard to the question whether Hen-tig’s supposed cause of action has been barred by any statute of limitations, or not.
The judgment of the court below will be affirmed.
Houton, C. J., concurring.
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The opinion of the court was delivered by
HoetON, C. J.:
The plaintiff, George B. Wood, being the owner of land now in part embraced by the City of Kansas, in this state, in 1869 platted such land into blocks, lots, streets and alleys. He, with others who owned contiguous land and who joined in the platting of the city, attempted to make an express reservation by a note upon the map and plat of the city signed by them, in the following language:
“It is hereby expressly understood that no right or privilege whatsoever is hereby granted, conveyed or dedicated to any purchaser, excepting the simple easement or right of travel over said streets, avenues or alleys, but that all other rights and privileges are hereby expressly reserved to the undersigned proprietors.”
Subsequently the defendant was authorized .by the City of Kansas to construct its water-mains through the soil below the streets of the city, and under such license proceeded to place the same under the streets, for the purpose of conducting its water from its reservoir in Jackson county, Missouri, into and through the city. The plaintiff alleges that the defendant has no right to enter upon the premises under the streets of the City of Kansas, without his consent, and that he has been damaged in the sum of $20,000 by the alleged wrongful action of the defendant.
It is claimed upon the record that two questions are presented for decision: First: Can the proprietor of land, platting and laying out the same into a city or town, under the provisions of §§ 1 and 6 of ch. 78, Compiled Laws of 1879, reserve the fee simple in the soil beneath the surface of the street so platted? Second, If this question be answered in the affirmative, then, under the language of the reservation in this case, had the defendant the right to enter upon such streets and excavate therein deep holes beneath the surface in which to lay its water-mains, through which to conduct water for sale where it might find a market for the same?
In disposing of this case upon its merits, it is unnecessary to decide whether a proprietor platting a city, or a part thereof, may reserve his right to the minerals beneath the surface of the streets. (City of Dubuque v. Benson, 23 Iowa, 248; Tousley v. Mining Co., 24 Kas. 328.) In this case, the plaintiff did not reserve in himself the fee in the soil beneath the surface of the streets against the public generally, but his reservation was that no right or privilege whatsoever was granted, conveyed or dedicated to any “purchaser, excepting the simple easement or right of travel over said streets, avenues or alleys.” Conceding, for the purposes of this case, that the proprietor platting a city or town may reserve for himself the right to all the minerals beneath the surface of the streets and alleys, including the right of mining all subterraneous veins of ore, he cannot, in our opinion, lay out and plat a city, or a part thereof, dedicating the streets and alleys for public uses, under the provisions of said chapter 78, and by such a reservation as is stated in the note written upon the map or plat filed by him, limit or interfere with the use of the streets, avenues or alleys for public, purposes.
Section 1 of said chapter reads:
“ Whenever any city or town, or an addition to any city or town, shall be laid out, the proprietor or proprietors of such city or town, or addition, shall cause to be made out an accurate map or plat thereof, particularly setting forth and describing : First, all the parcels of ground within such city or town, or addition, reserved for public purposes, by their boundaries, course and extent, whether they be intended for avenues, streets, lanes, alleys, commons, or other public uses; and second, all lots intended for sale, by numbers, and their precise length and width.”
Section 6 is as follows:
“Such maps and plats of such cities and towns, and additions, made, acknowledged, certified, filed and recorded with the register, shall be a sufficient conveyance to vest the fee of such parcels of land as are therein expressed, named or intended for public uses in the county in which such city or town, or addition, is situate, in trust and for the uses therein named, expressed, or intended, and for no other use or purpose.”
Under the allegations in the petition, there was a perfect statutory dedication of the parcels of land named therein, for public purposes. (City of Des Moines v. Hall, 24 Iowa, 234.) In this state, the fee of all real estate, when dedicated to public use by the proprietor of any city, vests absolutely in the county wherein such real estate lies, and the county forever afterward holds the property in trust for such use; but the city has control over it as another agent of the public. (Railroad Co. v. Garside, 10 Kas. 552.) The power of the public over the streets of a city is not confined to travel only, but the public may construct drains, sewers, gutters, gas-pipes, cisterns, etc.; and in case of a dedication of the street, such uses are contemplated. The city corporation may make every use of .a street which reasonably conduces to the public convenience and enjoyment. The use of streets for the purpose of laying down water-pipes, stands upon the same principle as tbeir use for sewers and gas-pipes. As cities of the second class in this state have power'to supply the inhabitants with water, the authorities thereof may use, or, as an incidental power, may permit the contractor or other parties to use, the streets for this pui’pose. (Comp. Laws of 1879, eh. 19, §§ 31, 32, 36, 54, 61, 68; 2 Dillon on Mun. Corp. [3d ed.], §§ 688-697; Commissioners v. Hudson, 2 Beas. [N. J.] 420; City of Cincinnati v. Penny, 21 Ohio St. 499; West v. Bancroft, 32 Vt. 366; Kelsey v. King, 32 Barb. 410; Warren v. Goodhaven, 30 Mich. 24.)
After the plaintiff laid out and platted his town lots, and then acknowledged, certified, filed, and had recorded the map thereof in the office of the register of deeds of "Wyandotte county, the fee of the streets and alleys vested in the county of Wyandotte, yet the control of such property is almost entirely and absolutely in the City of Kansas. 'The rights given by this dedication are not taken away by the attempted reservation written upon the map or plat, because such reservation must be deemed inoperative and void as against the public. It is not in accordance with the terms of the statute vesting the fee of the property dedicated for public use in the county, and to recognize such a doctrine would be not only to violate the statute, but would take from the direction and control of the public authorities the use óf the streets for many necessary and important purposes for which streets are usually devoted to satisfy the wants and conveniences of the people. (City of Des Moines v. Hall, supra.)
We conclude that the defendant had the right, under the license granted it, to enter upon the streets in controversy and make excavations therein beneath the surface of the streets so as to lay its water-mains through which to conduct water to supply the inhabitants of Kansas City.
The order and judgment of the district court must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Hortok, C. J.:
The plaintiff filed his petition seeking the specific performance of a verbal contract for the conveyance of one hundred and sixty acres of land. It alleged, among other things, that in November, 1877, Mrs. Fuller, the mother of plaintiff, being the owner of the land in dispute, gave it to him upon condition that he would move upon and live on the land; that she put him into the possession thereof in the spring of 1878; that at the time, the land was worth about $1,200; that in pursuance of such gift, he took possession of the land, and has had the exclusive possession of it ever since; that, relying upon the gift as vesting in him the ownership of the land, and that his mother would convey the same to him, soon after taking possession, with the knowledge of his mother, he made valuable and lasting improvements thereon, of the value of $2,256.50; that his mother died intestate, on October 31, 1882, without making a deed to him of the land.
The plaintiff offered evidence in support of his petition. On the part of the defendants, the court permitted them to give in evidence a statement made in February, 1882, in the absence'of plaintiff, to Albert G. Speer, one of the defendants, by Mrs. Fuller, that “she wanted the farm [the premises in controversy] to be given to George [her son], on the payment of $2,000 to the estate.” Also, the statement of Mrs. Fuller, made on August 5, 1882, in the absence of plaintiff, to Abbie M. Klinefelter, another defendant, that she “had furnished money for the improvements on the farm.” The court also permitted to be read in evidence the letters of Mrs. Fuller written to Abbie M. Klinefelter and her husband, in 1879, tending to show “that she regarded the farm as her own.”
We think all of this evidence was incompetent as being hearsay, and not coming within any of the exceptions to the rule rejecting hearsay evidence. It cannot be claimed that these letters and statements of Mrs. Fuller were declarations against interest, that is, against her interest at the time when they were made. They tended to show that she was the owner of the premises, and that the plaintiff had no ownership therein; therefore, they were in support of the title and interest of Mrs. Fuller — not against her.
It is claimed however by the defendants, that the declarations made by Mrs. Fuller, and the letters written by her, may be regarded as part of the res gestee, and therefore properly admitted as original evidence. At the time the statements were made and the letters written, Mrs. Fuller was not in the actual possession of the premises in 'controversy, and therefore the evidence was not admissible as “declarations accompanying the act of possession;” they did not explain her possession, or- the nature of the same. • The statements and letters were not made or written simultaneously with the giving of the possession of the premises to the plaintiff; nor with the doing of any act by her connected with such possession • nor were they made or written at the time any act was done by her regarding the property which was material to the issue before the court; nor were they of a character to explain or define any such act. We think, therefore, that the statements and letters could not be properly received as any part of the res gestee. (1 Greenl. Ev. [12th ed.], §§ 109, 110, 127.)
It is unnecessary to refer to the circumstances under which courts will specifically enforce verbal contracts for conveyance of lands, as the law is fully declared in Galbraith v. Galbraith, 5 Kas. 402. Before another trial is had in this case, the petition should be amended to conform to the law as announced in Reading v. Weir, 29 Kas. 429; and Head v. Sutton, 31 id. 616. Under the decisions in those cases, the legal title of the premises in controversy is in the heirs of Mrs. Fuller, and the administrator - has no interest therein, but possesses a naked authority to sell on license to pay the debts, if the personal estate is found to be insufficient.
The judgment of the district court will be reversed, on account of the reception of incompetent evidence, and the cause will be remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
O’Connor, J.:
This action was commenced by the Topeka Savings Association, hereafter referred to as TSA, to foreclose a real estate mortgage executed by Dr. Charles E. and Uldine W. Beck, husband and wife. The only controversy in the case is between the appellees Beck and J. E. Heide, appellant, concerning who is the legal owner (s) of the property and entitled to the rents and profits therefrom during the period of redemption. (K. S. A. 60-2414 [a].) On issues joined under appropriate pleadings, the matter was tried to the court. From an adverse determination in the court below, Heide has appealed.
The controlling question before us is whether or not the trial court’s conclusion, that Heide had no interest in the property and that the Becks were the owners thereof, should be sustained.
Dr. and Mrs. Beck purchased the property in question in June 1961 for $18,500, and executed a purchase money mortgage in favor of TSA for $16,650. They occupied the property until July 1963, at which time they moved to Danville, Illinois. The house was rented, and the Becks continued to make the payments on the note until December 1964, at which time they defaulted. The Becks then attempted to sell the property through a realtor, but to no avail. Thereupon, Dr. Beck placed an advertisement in a local newspaper in substantially the following language:
“Owner will sacrifice lovely seven room ranch style home in preferred southwest location. Large corner lot, double car attached garage, immediate possession. Appraised price $18,000.00. Equity free, pick up payments since January 1st and assume mortgage. Total about $16,100. Write Dr. Beck, V. A. Hospital, Danville, Illinois, or contact Mr. Keever at Topeka Savings.” (Emphasis added.)
In response to this ad, Heide, who, among other things, buys and sells real estate and deals in equities, made inquiry of TSA about the balance due on the note and mortgage, and the amount in the reserve accounts for insurance and taxes. Heide then telephoned Dr. Beck and inquired about the sale of the property. According to Dr. Beck, Heide said he wanted the property and would send the necessary papers.
Heide wrote to the Becks on March 30, 1965, enclosing with his letter a postal money order in the amount of $10, a warranty deed form describing the real property, a contract, and assignment forms for the insurance policy and the reserve accounts, which he proposed be signed and executed by them. The contract and warranty deed included the following language:
“Subject to the unpaid balance of all liens and all mortgages pertaining to the aforementioned premises.”
Dr. Beck, being unsure of the meaning of the language, and after talking to Mr. Keever of TSA, added the following phrase after the word “premises” on the deed only:
“which party of the second part assumes and agrees to pay.”
The Becks then executed the deed as altered, signed the contract, the assignment forms, and on April 5, 1965, Dr. Beck returned the instruments by mail to Heide with a letter of transmittal which read, in part, as follows:
“Sunday evening I called Mr. Keever at Topeka Savings and advised him that you will be taking over the loan. At his suggestion I added a few words on the deed.
“As you will note, payments are delinquent since the first of the year. I assume you found out the exact amount due Topeka Savings to bring them up to date. Payments are due on the fifteenth of the month with a penalty if they are not made by the twenty-fifth.”
Upon receiving the deed and the other papers, and without any knowledge on the part of the Becks, Heide altered the deed by adding the following language to the phrase added by Dr. Beck:
“Contracts were not altered; therefore, party of the second part, does not assume and agree to pay!”
Heide then recorded the instrument on April 14, 1965, and said nothing more to the Becks. The Becks first learned of Heide’s alteration of the deed when the present action was instituted.
Thereafter, Heide rented the premises to John Leftwich on a month-to-month basis for $140, and received one $140-payment up to the time this action was filed. Leftwich has continued as a tenant, and rentals have been paid to the clerk of the district court during pendency of the action. No payments on the mortgage have ever been made by Heide.
At a pretrial conference it was stipulated that TSA had a valid mortgage lien in the amount of $16,040.03 with interest thereon at 10% per annum from May 10, 1965, and that the mortgage should be foreclosed. The only issue submitted to the trial court for determination was legal ownership of the property.
The district court made findings of fact, substantially as already outlined, and concluded that there was no meeting of the minds between the Becks and Heide regarding a contract of sale, and consequently the Becks were the legal owners of the property. In his memorandum opinion the district judge stated:
“. . . Boiled down to its essence the defendants Beck offered to sell their real estate under an agreement by which the defendant Heide would purchase their equity in the property and would agree to pay the back payments due on the note and mortgage to Topeka Savings Association and would assume the mortgage payments. This intention is clearly shown by the change made by Dr. Beck in the warranty deed and by Dr. Beck’s letter of April 5, 1965, to Heide. Heide had no right whatsoever to alter the written deed and this alteration was a material alteration not in accord with the clear intention of the Becks. Such alteration in effect constituted a counter offer which was never communicated to the defendants Beck and therefore there was never any acceptance possible or was there a meeting of the minds between the Becks and Heide. Under these circumstances there was no enforceable contract between the Becks and Heide executed and consummated between the parties.”
In addition to entering a personal judgment for TSA against the Becks and decreeing foreclosure of the mortgage, the district court also found that less than one-third had been paid on the purchase price of the property, and fixed the period of redemption at six months; rendered judgment for TSA against Heide in the sum of $130, being the amount of the one rental payment received by him less the $10 paid to him by the Becks; and, under an assignment-of-rents clause in the mortgage note, all rents in the hands of the clerk of the district court, as well as any payment made on TSA’s judgment against Heide, were to be paid to TSA and credited to its judgment against the Becks.
Although Heide raises numerous points as error, his main contention pertains to the trial court’s conclusion that there was no meeting of the minds between the Becks and Heide and that Becks were the owners of the property. The thrust of his argument is that the contract was the controlling instrument in the transaction, and since Beck altered the deed and the alteration did not agree with the language of the contract, Heide had every right to add the words, “Contracts were not altered; therefore, party of the second part, does not assume and agree to pay!” to make the deed conform to the contract.
It is undisputed that the contract and deed prepared by Heide were simultaneously sent to and executed by the Becks. Both pertain to the real estate in question, and were part of the same transaction. It is a well-settled principle of contract law that where two or more instruments are executed by the same parties at or near the same time in the course of the same transaction and concern the same subject matter, they will be read and construed together. (In re Estate of Cooper, 195 Kan. 174, 403 P. 2d 984; Farmers & Merchants Bank v. Copple, 190 Kan. 170, 373 P. 2d 219; Shepard, Executrix v. John Hancock Mutual Life Ins. Co., 189 Kan. 125, 368 P. 2d 19; Dearborn Motors Credit Corporation v. Neel, 184 Kan. 437, 337 P. 2d 992.) When the contract and deed, as altered by the Becks, are read and construed together, we find conflicting language concerning the assumption by Heide of any liens or mortgages on the property. Dr. Beck’s accompanying letter of transmittal to Heide reveals it was Beck’s intention that Heide take over the note and mortgage and bring the payments up to date. This intention was consistent with the language of the deed as altered by Dr. Beck, as well as with the contents of the newspaper ad which stated in part: “. . . pick up payments since January 1st and assume mortgage.” Heide, on the other hand, instead of accepting the deed as altered, added language which clearly showed he had no intention of assuming and paying the note and mortgage. Heide’s action was contrary to the Becks’ intention, as expressed throughout the entire transaction, and unless Heide’s final alteration of the deed was agreed to by the Becks, no sale resulted.
From the written language employed by each of the parties, as well as their respective conduct and actions, it becomes obvious that there was no meeting of the minds. In order for parties to form a binding contract, there must be a meeting of the minds as to all the essential terms thereof. (Allen v. Bowling, 173 Kan. 485, 249 P. 2d 679; Sinclair Prairie Oil Co. v. Worcester, 163 Kan. 540, 183 P. 2d 947; Broadview Oil Co. v. Livengood, 156 Kan. 514, 134 P. 2d 378; 17 Am. Jur. 2d, Contracts § 18; 17 C. J. S., Contracts § 31.)
No question is raised concerning the sufficiency of the evidence to support the district court’s findings of fact, nor are the facts upon which the court relied in reaching its decision seriously controverted. We are therefore concerned only with the correctness of the court’s conclusion of law. From our examination of the record, and for the reasons already stated, we are of the opinion the district court properly found there was no meeting of the minds between the parties and no contract existed.
Heide also complains of the judgment rendered against him for the month’s rent he received prior to TSA’s instituting foreclosure proceedings. The mortgage note provided in part that the Becks assigned to TSA any rents arising from the property and authorized-TSA, at its option, to enter into possession and to collect all rents and income and apply the same to payments due, provided the note was in default. The Becks, as owners, have not challenged TSA’s right to the rental; and since we have already determined that Heide is not the owner of the property, under the assignment-of-rents clause he is in no position to contend he is entitled to the rents therefrom as against TSA. Thus, the district court’s judgment against Heide must stand. Other points raised by Heide have been examined and found to be completely devoid of merit.
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The opinion of the court was delivered by
Fontron, J.:
The dispute in this lawsuit centers upon who is entitled to the 1964 rent from a Douglas County farm: the plaintiff, John J. Riling, as Kansas executor of the Mary F. Priest estate, or the defendant, Dan O. Cain, as purchaser of the farm from Mrs. Priest’s devisees. The rent was paid to the purchaser, Cain, by the tenant who farmed the land, and the executor, Riling, has sued to recover the same on behalf of the estate.
The action was tried to the court which, after making findings of fact and conclusions of law, entered judgment for the defendant. The plaintiff has appealed. The parties will be designated respectively as plaintiff, or Riling, and defendant, or Cain.
From the findings, which are not challenged, and the evidence of record, we glean the following facts: In November, 1962, Mrs. Priest, a resident of California, died testate in San Diego. In her will she devised four quarter sections of land in Douglas County to two nephews and to the trustees for tire children of a deceased niece. At the time of Mrs. Priest’s death, this land was farmed by John Inloes, a sub-tenant of the lessee, a Mr. O’Connor.
Mrs. Priest named a California bank as executor of her California estate and John J. Riling as executor of the Kansas property, and they were so appointed. The will directed the executors to pay all taxes from the residuary estate and empowered them to sell or lease estate property subject to such confirmation or authorization as the law required.
Early in 1963, Cain approached Riling with reference to buying the farm. Negotiations were thereafter undertaken between Cain and the devisees, who lived in California, which culminated in a contract dated April 9, 1963, for sale of the land to Cain for $85,000. Riling prepared the contract as attorney for Cain and the devisees, and also prepared deeds running to Cain. The contract was signed by Cain, by the two nephews of Mrs. Priest and by the trustees for the children.
So far as is here material, the contract provided that Cain was to escrow $8,500 with the Lawrence National Bank and should pay the balance of the purchase price, amounting to $76,500 upon delivery of merchantable title; that the two nephews were to place their deeds in escrow with the bank, and the trustees should convey their interest to Cain on final settlement of the Priest estate; and that abstracts showing merchantable title should be furnished Mr. Cain, brought to date within ten days from closing the estate.
The contract further provided that Cain should receive the landlord’s share of all crops or revenues derived from the farm for 1963 and that he should pay the 1963 taxes, while the sellers were to pay taxes for prior years. No provision was included for disposition of the rents or payment of the taxes for 1964 and subsequent years.
After the contract was signed, and the deeds prepared, Riling accompanied Cain to the bank, where the papers were escrowed, and Cain put up $8,500. Riling then took Cain to the agent who had written the insurance on the buildings and had an indorsement prepared showing Cain’s interest.
In the spring of 1964, the plaintiff filed his petition for final settlement and published notice of hearing. However, the estate was not closed at that time for the reason that federal estate tax clearance had not been received. We were advised on oral argument that the estate is still open although tax clearance has been obtained.
Cain leased the land to Inloes for 1964 and received the landlord’s share of the rents and A. S. C. payments for that year. Cain also made extensive repairs to improvements, increased the insurance and paid the increased premium, collected for at least one insured loss and in November, at Riling’s request, paid the first half of the 1964 taxes.
At no time in 1964 was demand ever made by Mr. Riling for any part of the revenues for that year. However, in late March, 1965, at the instigation of the California bank, Riling sent a letter asking Cain to send him his check for the 1964 rents. Cain declined to pay and this lawsuit followed.
The plaintiff raises eight points. Taken together they boil down to this proposition: that under the provisions of K. S. A. 59-1401, he, as executor of the Kansas estate was entitled to possession of the farm during the period of administration and was required to collect the rents therefrom until the estate was settled. The trial court rejected this contention, and in this we believe the court was correct.
K. S. A. 59-1401, on which Riling bases his claim to the 1964 rents from the Kansas real estate, reads as follows:
“The executor or administrator shall have a right to the possession of all the property of the decedent, except the homestead and allowances to the surviving spouse and minor children. He shall marshal all tangible personal property owned by the decedent located in the state of Kansas and all intangible personal property owned by the decedent wherever located, either directly or by ancillary administration, and shall within one year from the date of death take possession of all tangible personal property located in this state and all intangible property wherever located, the same to be held, administered and finally distributed as provided by law. He shall pay the taxes and collect the rents and earnings thereon until the estate is settled or until delivered by order of the court to the heirs, devisees, and legatees. He shall keep in tenantable repair the buildings and fixtures under his control and may protect the same by insurance. He may by himself, or with the heirs or devisees, maintain an action for the possession of the real estate or to quiet title to the same.”
It will be noted that this statute has dual provisions pertaining to the possession of estate property by an executor or an administra tor: One, that he shall have the right to possession of all the decedent’s property; the other, that he shall take possession of all personal property. The language used thus distinguishes real from personal property, permitting possession to be taken of the former, while requiring that possession be taken of the latter.
This court pondered the meaning of 59-1401 as it relates to the possession of real estate by an administrator in Peterson v. Peterson, 173 Kan. 636, 251 P. 2d 221. In that case we held that a partition action could be maintained by a cotenant against the heirs of a deceased cotenant even though the estate of the latter was in process of administration, but rejected a conclusion made by the trial court that the decedent’s interest was owned by her heirs and her administrator. On this point, the court said:
“. . . While the administrator has a right of possession until the estate is settled or until delivery by order of court to the heirs (59-1401), under the first section mentioned, the property passes to tire heirs subject only to be taken in a statutory manner for statutory purposes. (Magaw v. Emick, 167 Kan. 580, 585, 207 P. 2d 448.)
“Administrators of estates have the right of possession of real property until the estate is settled (59-1401). However, this right is merely permissive and does not exclude the possessory right of heirs until the administrator asserts his right to take possession. On the death of an intestate the lands descend, as at common law to his heirs, who may maintain ejectment against third persons if the administrator has not taken possession; the administrator takes neither title nor interest in the land except the mere right to take possession during administration. (2 Bartlett ‘Kansas Probate Law and Practice,’ Sec. 708, pp. 84, 85; Black v. Elliott, 63 Kan. 211, 215, 65 Pac. 215; Lindholm v. Nelson, 125 Kan. 223, 229, 264 Pac. 50; 24 C. J. 130, §594; 33 C. J. S. 1262, §252.) (pp. 639-640.)
Our decision in Peterson accords with the view generally held by the courts of this country. In 2 Bartlett, Kansas Probate Law and Practice, § 820, p. 341, the author discusses the obligation of executors and administrators to assume possession of a decedent’s real estate under statutes similar to ours, and says:
“In those states having the statute it has been decided that the statute is not imperative, but merely permissive, and that it does not exclude the possessory rights of heirs and devisees; that the right of possession is in the heir or devisee until the executor or administrator asserts his rights and takes possession; that on the death of an intestate the lands descend, as at common law, to his heirs, who may maintain ejectment against third persons, if tire administrator has not taken possession; that the administrator takes neither title nor interest in the land except the mere right to take possession during administration, if he sees fit to do so.”
In 33 C. J. S. Executors and Administrators, § 257b., p. 1268, the prevailing rule is stated in these terms:
“Only in a proper case is a personal representative under a duty to exercise his right of possession of the realty, as where it is necessary to do so because the personalty is insufficient to meet the debts and claims; and it is only to the extent that the right is actually exercised that the common-law rights of the statutory distributees in the realty are disturbed or impaired. . . . Until it is exercised, it does not constitute an intervening estate in possession as against the heir. . . .”
Numerous cases, both ancient and modern, are cited in support of the foregoing text.
In Estate of Rieman, 272 Wis. 378, 75 N. W. 2d 564, a case which involved the allowance of an administrator’s account, the court said:
“. . . The real estate descends to the heirs or devisees upon decedent’s death, and an administrator does not take title thereto. Under some circumstances he may obtain a right of possession. ■ However, he has no duty of possession unless it is necessary to do so for the payment of debt or administration expense. It is plain that if he does not take possession, he is under no responsibility to find a tenant or collect rents. . . .” (p.384.)
See, also, Chapin v. Chapin, 229 Mich. 515, 201 N. W. 530; Ayers Home for Nurses, Inc. v. Fales, 77 R. I. 37, 73 A. 2d 104; In re Chyat’s Estate, 60 N. Y. S. 2d 390, Affd., 53 N. Y. S. 2d 503, 269 App. Div. 674.
We believe the rule is rooted in common sense. There would appear to be no compelling reason for an administrator to take possession of real property belonging to the estate, unless such action be necessary to protect creditors, or to secure payment of costs of administration, or to pay legacies chargeable against the real estate. The same holds true so far as an executor is concerned, except where he anticipates exercising a power of sale contained in the will. In Magaw v. Emick, 167 Kan. 580, 207 P. 2d 448, we held:
“The only statute authorizing an administrator to sell real estate of his decedent is G. S. 1947 Supp. 9-1410 and under it he may sell real estate only for the purpose of paying reasonable funeral expenses, expenses of last sickness, wages of servants during the last sickness, cost of administration, taxes or debts.” (Syl. 1.)
We do not mean to say that if real estate which has not been reduced to possession is later found needed to pay claims or costs the executor would be precluded from then asserting his right to take possession and selling the real estate to pay debts and expenses.
The plaintiff calls attention to the language used in the latter part of K. S. A. 59-1401 which he would now construe as requiring him to collect the rents and earnings from the farm. In our judgment, an executor is required to collect rents accruing from realty only where he has taken possession of the real estate, not when he has declined to take possession, or waived his right thereto. We might add, in this connection, that had Mr. Riling taken possession of the farm, it would then have been his obligation to keep the buildings in repair, a duty which, under the undisputed evidence, he never did perform. Instead, Riling testified he never looked at the farm after being appointed executor.
The trial court found that when Mr. Riling was appointed, the residue of the estate was more than ample to pay all claims, taxes, expenses of administration and court costs, and this has never been disputed. Under such circumstances, Riling was under no obligation to take the Douglas County farm under his wing, and in our view tire evidence was overwhelming that he declined to do so.
We are aware of Riling’s testimony that he leased the land to Cain for 1964 on the same basis it had been leased to O’Connor. There is no evidence to support this naked assertion. The court found, on abundant evidence, that Cain rented the land to Inloes for 1964. Mr. Inloes testified that after the 1963 harvest he asked Riling about the next wheat crop and was told that all dealings from then on would be with Cain; that he, Riling, was done. At a later conversation with Riling, Inloes testified he was told that his “dealings after this would be settled up with Mr. Cain,” and that since December, 1963, Riling had not asked him for any money, although Inloes was in possession of the land continuously.
The trial court concluded that the defendant was put into possession of the land with the knowledge, acquiescence and participation of the plaintiff. This conclusion was fully justified. Mr. Riling’s actions were wholly inconsistent with his present claim that he, as executor, was in possession of the farm during the year 1964.
We believe the inference is clear that both Riling and Cain anticipated the Priest estate would be closed in 1964. To that end, Mr. Riling prepared his final account and petition for final settlement in April, 1964, and published notice thereof. It is fair to assume, also, that it was in anticipation of closing the estate during 1964 that Mr. Riling washed his hands of the farm for that year; that he directed Inloes to deal with Cain; and that he sent the 1964 tax notice to Cain for payment. The claim now made by Mr. Riling that he is entitled to the revenues for 1964 comes belatedly, to say the least.
We find no error, and the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
In this workmen’s compensation case the examiner and the director of workmen’s compensation found that on May 23, 1962, the claimant met with personal injury by accident when she went to the storeroom of the respondent’s Topeka store to secure coke syrup to put into the coke machine at the fountain, and suffered a sharp pain in her back when she reached down and picked up the carton and commenced to lift it, which arose out of and in the course of her employment with respondent, and was compensable. Upon appeal and review of the record, the district court made findings of fact and conclusions of law denying compensation, as follows:
“Findings of Fact
“1. The relationship of employer and employee existed between Katz Drug Company and Mary Waneta Ippolito during the month of May, 1962.
“2. The parties are governed by the Kansas Workmen’s Compensation Law.
“3. Written claim for compensation was made within the time required by law.
“4. Claimant’s average weekly wage at the time of her employment at Katz was $38 per week.
“5. No notice of accident was given by claimant to respondent within the time required by law.
“6. Claimant did not meet with personal injury by accident arising out of and in the course of her employment at Katz Drug Company.
“7. Claimant’s condition which required the medical and hospital treatment is not shown to have been caused or aggravated by her employment.
“Conclusions of Law
“Claimant is not entitled to an award of compensation against respondent, and judgment should be entered in favor of respondent and insurance carrier, and against claimant.”
The sole question presented for appellate review is whether there was substantial evidence to support the district court’s finding that the claimant did not sustain accidental compensable personal injury on May 23,1962.
Whether the disability of a workman is due to an accident arising out of and in the course of his employment is a question of fact and when determined by the district court will not be disturbed by this court, where there is substantial evidence to sustain it. (Kafka v. Edwards, 182 Kan. 568, 322 P. 2d 785; Allen v. Goodyear Tire & Rubber Co., 184 Kan. 184, 334 P. 2d 370.) In Heer v. Hankamer Excavating Co., 184 Kan. 186, it was said:
“. . . It has been held many times that in reviewing the record in a workmen’s compensation case our task is to determine whether there is any evidence which supports the judgment rendered, which is required to be considered in the light most favorable to the prevailing party below, and, if there is any evidence to support the judgment it must be affirmed even though the record discloses evidence which might warrant the district court making a finding to the contrary. (Barr v. Builders, Inc., supra; Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P. 2d 197; Shobe v. Tobin Construction Co., 179 Kan. 43, 292 P. 2d 729.) Numerous decisions of like import will be found in 9 West’s Kansas Digest, Workmen’s Compensation, §§ 1940-1969, and 5 Hatcher’s Kansas Digest (Rev. Ed.), Workmen’s Compensation, § 153.” (l. c. 187.)
Does the record disclose substantial evidence to sustain the factual findings of the district court? As in all cases of this character, that is the decisive question. It would serve no useful purpose to extend this opinion by making an extensive review of the evidence of the parties. It is sufficient to say there was evidence on the part of the claimant which, if believed by the district court, would warrant an award of compensation, but upon a careful review of the record we are of the opinion there was substantial evidence to sustain the district court’s findings the claimant did not sustain accidental compensable injury on May 23, 1962. In Allen v. Goodyear Tire & Rubber Co., supra, it was said:
“. . . It is not for us to say what testimony should be given credence and what evidence should be disbelieved. We have neither the duty nor the authority to weigh the evidence, and it is of no consequence that if we had been the triers of fact we might have reached a conclusion with respect to the facts different from that of the trial court . . .” (l. c. 186.)
See, also, Jones v. City of Dodge City, 194 Kan. 777, 402 P. 2d 108.
Although this court may feel the weight of the evidence, as a whole, is against the findings of fact so made, it may not disturb those findings when they are supported by substantial evidence. Considering the evidence and all the facts and circumstances, we are of the opinion the record discloses substantial evidence to support the findings and judgment of the district court denying an award of compensation, and that judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a criminal action in which George T. Finley (defendant-appellant) was convicted of neglecting and refusing to return his operator’s license and vehicle registration to the Motor Vehicle Department as required by K. S. A. 8-760. He was sentenced by the trial court under the provisions of K. S. A. 8-761, and appeal has been duly perfected from the judgment and sentence.
The questions presented are whether on the facts in this case the appellant is subject to criminal prosecution, and, if so, whether the Motor Vehicle Safety Responsibility Act is constitutional as applied to the appellant.
The appeal was first heard on the 3rd day of March, 1967, and on April 8, 1967, the court’s opinion affirming the judgment of the lower court was filed. (State v. Finley, 198 Kan. 585, 426 P. 2d 251.)
In due time the appellant filed a motion for rehearing which was granted by this court on the 1st day of May, 1967, and set for re-argument at the October, 1967, session.
Upon further consideration of the facts, the majority of the members of the court are convinced that the former decision is incorrect, and the decision entered on the 8th day of April, 1967, should be and is hereby withdrawn, vacated and set aside.
Reference is made to the original opinion of the court for the facts, which have been stipulated and agreed upon by the parties, and for the contentions of the parties and the statutory sections under consideration. The former decision by a divided court fully developed the points, which were also considered in a dissenting opinion.
The appellant in his motion for rehearing charges that upon the crucial point in this case the court was misinformed by the appellee when it stated the additional $25 fee specified in K. S. A. 8-760a, as considered by the Motor Vehicle Department, was an administrative fee.
The appellant calls our attention to the actual record of the Motor Vehicle Department in this case, a copy of which is attached to the motion for rehearing. The security information sheet of the Motor Vehicle Department which was before the trial court (not printed in the original record for the Supreme Court on appeal because, according to the appellant, of cost involved, and he thought there was no quarrel about the matter) discloses in a bold stamp under “Reinstatement Fee” the words “25.00 Penalty Fee.”
Counsel for the appellee concede the security information sheet attached to the appellant’s motion for rehearing is a true copy of the document in question, but contend it has nothing to do with the construction of the statute, and this court is inclined to agree.
The substance of the appellant’s argument is that the $25 additional fee provided in 8-760a, supra, is a penalty within the contemplation of the language in 8-761, supra.
Generally, a criminal statute which forbids or requires the doing of an act in terms so vague and indefinite that men of common intelligence must guess at its meaning and differ as to its application lacks the first essential of due process of law. (State v. Davidson, 152 Kan. 460, 105 P. 2d 876; and State v. Hill, 189 Kan. 403, 369 P. 2d 365, 91 A. L. R. 2d 750.)
A rule of strict construction is to be applied to criminal statutes, and courts should not extend them to embrace acts or conduct not clearly included within the prohibitions of the statute. (State v. Waite, 156 Kan. 143, 131 P. 2d 708.) Stated in another way, the general rule is that criminal statutes are to be strictly construed as against the state and in favor of the accused, and courts are not at liberty to.extend by intendment the provisions of statutes creating and defining crimes. (State v. Bowser, 158 Kan. 12, 145 P. 2d 135; State ex rel., v. American Savings Stamp Co., 194 Kan. 297, 398 P. 2d 1011; State v. Jensen, 197 Kan. 427, 417 P. 2d 273; and see generally, 5 Hatcher’s Kansas Digest, Statutes, §95, p. 166.) The same rule is applied by the United States Supreme Court. (F.C.C. v. American Broadcasting Co., 347 U. S. 284, 98 L. Ed. 699, 74 S. Ct. 593 [1954]; and United States v. Halseth, 342 U. S. 277, 96 L. Ed. 308, 72 S. Ct. 275 [1952].)
It was said in United States v. Williams, 341 U. S. 70, 95 L. Ed. 758, 71 S. Ct. 581 (1951), that “Criminal statutes should be given the meaning their language most obviously invites. Their scope should not be extended to conduct not clearly within their terms.” (p. 82.)
The foregoing rule has been further refined in State v. Hill, supra, to embrace the situation presently confronting the court. It was. there held that exceptions in a criminal statute are to be construed liberally in favor of a person charged with a violation of the statute.
Turning now to the specific sections of the Motor Vehicle Safety Responsibility Act in question for a detailed analysis, the following may be noted.
K. S. A. 8-760 requires a person whose license or registration has-been suspended as provided in the act to “immediately” return his license and registration to the Department. If he “shall fail to return to the department the license or registration as provided herein, the department shall forthwith direct any peace officer to secure possession thereof and to return the same to the department.” (Emphasis added.)
It must be noted this section of the act is concerned only with the return of the driver’s license and registration to the Department. It specifically provides what shall be done upon a failure to return the license to the Department. Furthermore, nowhere in this section of the act is the failure to return said to be unlawful.
Under the foregoing rules of construction, the appellant is entitled to have 8-760a, supra, construed, by virtue of its specific provisions, as a part of the Motor Vehicle Safety Responsibility Act, even though it was enacted after the Motor Vehicle Safety Responsibility Act first became law.
Under 8-760a, supra, a person subject to the act “who shall fail, neglect, or refuse to surrender his operator’s or chauffeur’s license or the registration and license plates of any or all vehicles owned by him within the time prescribed by section 8-760 . . . shall not have his operator’s or chauffeur’s license returned or reinstated or a new operator’s or chauffeur’s license issued to him until he has paid to the motor vehicle department an additional fee of twenty-five dollars ($25).” (Emphasis added.)
It is important to note this section of the act first speaks of one who neglects or refuses to surrender his license; and for one who fails, neglects or refuses to surrender his license an additional fee of $25 is imposed before he can regain a driver’s license. In substance, this section penalizes one who fails, neglects or refuses to surrender his operator’s license, etc., within the time prescribed by 8-760, supra. It appears to be a self-contained section designed to penalize the transgressor.
K. S. A. 8-761 makes any person who violates any provision of the Motor Vehicle Safety Responsibility Act “for which no penalty is otherwise provided,” (Emphasis added) guilty of a misdemeanor. It is readily apparent the provisions of 8-761, supra, do not specifically denounce those acts which are made punishable by its terms. The application of penal sanctions to those who fail to comply with provisions of the Motor Vehicle Safety Responsibility Act at best is vague. Nowhere in 8-761, supra, is there any language which requires the violation of the Motor Vehicle Safety Responsibility Act to be a willful violation as a prerequisite to invoking penal sanctions. (See, United States v. Williams, supra, at p. 82 of the official report.)
An example of a penalty section in a Motor Vehicle Safety Responsibility Act which is clear as applied to facts here confronting the court is Wisconsin Statutes Annotated, Volume 14, §85.09 (32), which may be found quoted in the original opinion for the court at pages 596 and 597.
If the refusal of a person to return his operator’s license, vehicle registration and license plates is unlawful and a willful violation of the act subjecting him to criminal punishment, it would be necessary to incorporate the refusal denounced in 8-760a, supra, into 8-760, supra, and to add the word “willfully” in 8-761, supra. This cannot be done under the foregoing rules of construction. If these missing links .were not supplied by construction and the act is literally applied, without giving the appellant a favorable construction as to the exception in 8-761, supra, a person subject to the act who lost his license and faded to immediately return it to the Department upon suspension would be guilty of a misdemeanor. This cannot be the law.
In the instant case the charge reads that the appellant did “unlawfully, willfully, fail, neglect and refuse to return and surrender to the Motor Vehicle Department of the State of Kansas, his operator’s license and all his motor vehicle registration receipts and tags as required by K. S. A. 8-760, when his said license and registrations had been suspended by the Motor Vehicle Department of Kansas, pursuant to K. S. A. 8-727.” (Emphasis added.)
The appellant is entitled to have the exception in 8-761, supra,. liberally construed in his favor, and when this is done it must be said 8-760a, supra, provides a penalty by imposing an additional', fee of $25. This precludes application of the penal sanctions in 8-761, supra, to the appellant.
The term “penalty” has been variously defined by the courts of last resort in this country. It would be presumptuous of a court,, under the confronting facts and foregoing rules of construction here-applicable, to select a definition to the appellant’s disadvantage as-the intendment of the legislature. The dictionaries ascribe five different meanings to the term “penalty,” thus adding vagueness and ambiguity to 8-761, supra.
The rule of strict construction simply means that ordinary words, are to be given their ordinary meaning. (State v. Foster, 106 Kan. 852, 189 Pac. 953.) A statute subject to strict construction should not be read to add that which is not readily found within it, or to-read out what as a matter of ordinary English language is in it. (State v. Terry, 141 Kan. 922, 925, 44 P. 2d 258.) The object of the rule is to establish a rule of certainty to which the individual may safely conform without fear of the statute being misinterpreted by a court or prosecutor. If a court goes beyond the fair meaning of the language used in a statute and attempts to enlarge by implication or intention, it has abandoned certainty; and courts are not at liberty to extend by intendment statutes creating and defining crimes. (State v. Bowser, supra; and State, ex rel., v. American Savings Stamp Co., supra, at p. 300.)
In its plain ordinary sense “penalty” means to be put to a disadvantage, loss or hardship due to some action, such as a transgression or error. In this sense the $25 additional fee imposed under 8-760a, supra, is a penalty fee.
For the reasons heretofore assigned the provisions of K. S. A. 8-760a of the Motor Vehicle Safety Responsibility Act imposing an additional fee of $25 upon the operator of a motor vehicle whose license has been suspended, and who fails to immediately return his license and registration to the Department as required by 8-760, supra, for the return, reinstatement or issuance of a new license, is construed and held to be a “penalty” as that term is used in K. S. A. 8-761.
It follows the appellant is not subject to prosecution for a misdemeanor as provided in K. S. A. 8-761, and his conviction must be set aside.
The judgment of the lower court is reversed with directions to set aside and vacate appellant’s conviction.
Price, C. J., Fatzer and O’Connor, JJ., dissent. | [
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from a controversy over a motor vehicle collision.
The facts are not seriously disputed.
At about 6:25 o’clock on the morning of January 11, 1963, L. J. Williams, an employee of the defendant, Montgomery Ward, was driving a two trailer truck combination on the Kansas Turnpike. It was still dark. The weather was misting and freezing. The roadway was icy and slick.
Williams was driving northeast and as he was about a mile from Mile Post 107, which is about three miles out of Emporia, he noticed two tractor trailers side by side on a bridge just north of the marker. He let up on the accelerator hoping that he could stop without applying his brakes on the slippery ice. When he was about three hundred and twenty-five feet from the two parked vehicles, going about ten miles an hour, he touched the brakes and the trailers “jackknifed” blocking the two lanes for north bound traffic. Plaintiff, who was proceeding some distance behind, drove or skidded into the trailer which was blocking the east traffic lane and was injured. More detailed facts will be presented as we discuss the specific issues to which they are applicable.
The issues were framed and the case was tried to the court without a jury. At the close of the evidence the trial court found that “the plaintiff was guilty of contributory negligence that contributed proximately and directly to the accident and cause of action” and rendered judgment for defendant. The plaintiff has appealed.
It is first contended by appellant that the trial court erred in refusing to permit plaintiff a trial by jury.
We review the facts and the statutes pertaining to this issue.
The collision occurred on January 11, 1963. The first petition was filed May 13, 1963, in which Montgomery Ward and the Kansas Turnpike Authority were joined as defendants. A demurrer was sustained in favor of the Kansas Turnpike Authority to the petition, to an amended petition and to a second amended petition. The last demurrer was sustained on September 9, 1963. The above proceedings took place under the old code.
The new Code of Civil Procedure was approved by the legislature February 27, 1963, and published in the statute book on June 30, 1963, to take effect on January 1, 1964. The delay was for the purpose of enabling the members of the bench and bar to acquaint themselves with the new rules of civil procedure. Included in the new rules were certain sections covering jury trials.
K. S. A. 60-238 (b) provides for demand as follows:
“Demand. Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than ten (10) days after the service of tire last pleading directed to such issue. Such demand may be indorsed upon a pleading of the party.”
K. S. A. 60-238 (d) provides for waiver on failure to make demand. It reads:
“Waiver. The failure of a party to serve a demand as required by this rule and to file it as required by section 60-205 constitutes a waiver by him of trial by jury but waiver of a jury trial may be set aside by the judge in the interest of justice or when the waiver inadvertently results without serious negligence of the party. . . .”
K. S. A. 60-239 (b) further provides:
“By the court. Issues not demanded for trial as provided in section 60-238 shall be tried by die court; but notwithstanding the failure of a party to demand a jury in an action in which such demand might have been made of right, the court in its discretion may order a trial by jury of any or all issues.”
On December 30, 1963, two days before the above rules became effective, the third amended petition was filed with Montgomery Ward the sole defendant. The answer, the last pleading, was filed January 24, 1964. No demand for jury trial was filed until June 9, 1964, when a praecipe for placing the case on the jury trial docket was filed. At the pretrial conference the trial court announced that a jury trial could not be permitted because the demand for a jury trial was not filed in time. The case proceeded to trial before the court.
The appellant states as the only reason for not filing a timely demand for a jury trial:
“We had for many years followed the practice of using the form of Praecipe for Placing the case on the jury trial docket when the issues were drawn up. This was not limited to a ten day period.”
The jury trial was not suggested until some four months after the time allowed by the new code. Under the new rules the demand for a jury trial must be made not later than ten days after the service of the last pleading directed to such issue (K. S. A. 60-238 [b]) but the waiver may be set aside by the judge in the interest of justice or when waiver inadvertently results without serious neglect of the party (K. S. A. 60-238 [cl]) and the court in its discretion may order a trial by jury of any or all issues (K. S. A. 60-239 [b]).
In the absence of a timely demand for a jury trial, a party waives the right to a trial by jury (United States v. Moore, 340 U. S. 616, 95 L. Ed. 582, 71 S. Ct. 524, reh. den. 341 U. S. 923, 95 L. Ed. 1356, 71 S. Ct. 740; Murphy v. Shelby, 353 F. 2d 418) and relief from the waiver is left entirely in the discretion of the trial court.
Under the facts in this case we cannot say that the trial court abused its discretion. Such a ruling would have the effect of destroying the legislative fiat that a demand must be made for a trial by jury within ten days after the last pleading directed to such issue or the right is waived. This we should not do.
It should also be noted that the appellants argue the prejudice of the trial judge as a reason why a jury trial should have been granted. We will next consider that issue.
The appellant contends that the judgment “was given under the influence of prejudice” of the trial court. The claimed prejudice, which it is charged influenced the trial judge in his decision, appears to be based on the opinion of the trial judge that there could be a better procedural method for determining responsibility in motor vehicle collision cases. It appears he has suggested a trial by a commission of experts rather than a trial to a jury or a judge and the elimination of the contributory negligence rule. No doubt there are many trial judges that hope for some improved procedure for determining responsibility in automobile accident cases.
A judge is not to be charged with prejudice because he desires and suggests what he thinks to be improved trial procedure. We find in The State Trial Judge’s Book, published under the sponsorship of the National Conference of State Trial Judges and the Joint Committee for the Effective Administration of Justice, the canons of judicial ethics, paragraph 23, p. 275, reads:
“Legislation. A judge has exceptional opportunity to observe tire operation of statutes, especially those relating to practice, and to ascertain whether they tend to impede the just disposition of controversies; and he may well contribute to the public interest by advising those having authority to remedy defects of procedure, of the result of his observation and experience.”
We cannot say, as a matter of law, that because a trial judge seeks improvement in the present rules of trial procedure he will not conscientiously apply the existing rules until such time as they are abrogated.
The appellant’s last claim of error is to the effect that the evidence discloses the appellee was guilty of negligence “proximately causing” the collision and there was no evidence to support the trial court’s conclusion that appellant was “guilty of contributory negligence which proximately caused the accident.”
Before we consider the evidence which was before the finder of facts for its determination, we note that a person who is contributorily negligent cannot recover for an injury or loss sustained. (PIK 4.01; Cooper v. Sorenson, 182 Kan. 560, 322 P. 2d 748.) The exception of wanton negligence (Horn v. Chicago, R. I. & Pac. Rld. Co., 187 Kan. 423, 357 P. 2d 815) is not raised in this case. If the appellant was guilty of contributory negligence we need not consider the evidence of defendant’s negligence.
Again, before we consider the evidence for the purpose of determining whether there was support for the trial court’s finding of contributory negligence, we note certain rules limiting the power of this court on appellate review. This court does not concern itself with conflicting evidence. The trier of facts has the responsibility of weighing the evidence and determining what testimony will be believed. A finding supported by substantial competent evidence will not be disturbed on appeal. (Loucks v. McCormick, 198 Kan. 351, 424 P. 2d 555; Gibbs v. Erhert, 198 Kan. 403, 424 P. 2d 276, and cases cited therein.)
With these rules in mind we will review the record for the purpose of determining whether there is any substantial evidence to support the trial court’s finding of contributory negligence.
Mr. Williams, driver of the truck pulling the jackknifed trailers, testified as to appellant’s speed:
“A. Well, Mr. Horton came right on up and ran into it.
"Q. Was there any reduction in his speed?
“A. Well, it looked to me like he just ran into it without reducing his speed.”
The appellant testified that when he first saw the lights of the tractor which had swung across the media strip facing south he was probably half a mile away. He thought they were the lights of a car traveling south. He dimmed his lights. He further testified:
"A. I continued on and all at once there was a black wall in front of me. My lights shone under the trailers and the first thing I seen was the trailer sitting there.
“Q. You had just seen these lights and then you saw a black wall and then the trailer?
“A. Then it was identifiable it was a trailer.
“Q. Well, when you just saw the black wall effect what did you do?
“A. I applied the brakes.
“Q. To your best recollection about how far back where you when you first saw the black wall?
“A. I would say 350 or 400 yards. I am a poor guesser; something like that.
“Q. Is this black wall you are referring to the trailers?
“A. Yes.
“Q. And then you applied your brakes, you say?
“A. I did.
“Q. And then you skidded into the guard rail along the side of the road? "A. No, I didn’t skid into it.
“Q. You drove into it?
“A. I started to skid and I released the brake and got control and went over on the shoulder where I could get into the rough gravel. I thought it was sticking up through the glaze of ice.
“Q. Then, you swung over and struck the rear end of the trailer?
“A. I hit the guard rail first to take part of the blow.
“Q. How fast were you driving?
“A. Thirty-five to forty.
“Q. And you think on that ice you could have stopped within seventy-five feet?
“A. If it was out on the roadway, no. That was the idea of going to the shoulder — to get some traction.”
It would serve no useful purpose to further extend this opinion by presenting additional evidence. There was substantial evidence to support the trial court’s finding that appellant was guilty of contributory negligence because of his speed and failure to reduce speed on an icy highway placing his automobile out of control.
A careful examination of the record disclosed no error which would justify the granting of a new tidal or other relief.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fontron, J.:
This is an appeal from an order overruling a motion filed pursuant to K. S. A. 60-1507.
The appellant, Jack Lavon Smith (referred to herein as petitioner, or Smith) was convicted in 1963 on two counts of grand larceny. On appeal to this court, the convictions were upheld in State v. Smith, 193 Kan. 299, 392 P. 2d 902. Throughout both the trial and the appeal, Smith was represented by retained counsel of his own choice, Mr. Earl Thomas Reynolds, a member of the bar of this state residing at Coffeyville, Kansas.
In August, 1964, the petitioner filed a motion attacking the two sentences on various grounds. The trial court found that no substantial issues of fact were raised requiring either the appointment of counsel or the petitioner’s presence. Accordingly the court proceeded to determine the matte! on the files and recoids of the case and specifically found against Smith’s several contentions. The motion was thereupon denied.
On this appeal Smith is represented by appointed counsel of long experience at the bar. Five points are raised. The first point pertains to the alleged incompetency of petitioner’s prior counsel; the last four refer to the summary hearing of the petitioner’s motion.
Incompetency of counsel is a familiar plaint heard with increasing frequency in this post -Gideon era. However, the metes and bounds of legal adequacy have never been precisely defined. On the one hand it has been said that the constitution does not guarantee an accused the assistance of the most brilliant counsel. (State v. Woods, 179 Kan. 601, 296 P. 2d 1114; State v. Calhoun, 194 Kan. 378, 399 P. 2d 886.) On the other hand this court has pointed out that where an attorney chosen by a defendant is so incompetent or so dishonest or so improperly conducts his client’s case as to amount, in practical effect, to no representation at all, the defendant has been deprived of a fair trial and should be granted relief. (Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147; Converse v. Hand, 185 Kan. 112, 340 P. 2d 874; McGee v. Crouse, 190 Kan. 615, 376 P. 2d 792.) We have stated also that the law requires honest, genuine and loyal representation on the part of legal counsel. (State v. Calhoun, supra; Call v. State, 195 Kan., 688, 408 P. 2d 668, cert. den., 384 U. S. 957, 16 L. Ed. 2d 552, 86 S. Ct. 1581.)
Between the boundaries thus drawn there is a considerable area of uncertainty which we shall not attempt at this time to explore in depth. We shall, instead, concentrate our attention upon the singular aspects of this particular case for the purpose of determining whether the trial court, which had access to the entire record of trial including the transcript was justified in finding, from an examination of the motion and the files and records in the case, that the petitioner was at all times represented by counsel of his own choosing, who was a regularly practicing and competent attorney, and that allegations of incompetency were not supported by the record.
We are aware that the attack upon counsel’s competency is centered on four factors: failure to argue all grounds set forth in petitioner’s motion for new trial; failure to present oral argument on appeal; failure to file a motion for rehearing of the appeal; and failure, on appeal, to specify as error' the overruling of petitioner’s motion for new trial.
As to the first complaint, it is said that counsel argued only one of the seven grounds contained in the motion for new trial. This is true, although Mr. Reynolds, in arguing the motion, included in that ground (verdict contrary to evidence) the alleged erroneous admission of a confession claimed by Smith to be involuntary. We view the complaint as insubstantial. As we believe is customary among experienced trial lawyers, Mr. Reynolds included in the motion, as a matter of precaution, most of the statutory grounds for granting a new trial. (See K. S. A. 62-1603.) As is usual, also, it would appear that Reynolds argued only such points as he felt had real merit. We are forced to conclude that he was not far wrong in his evaluation.
In arriving at such a conclusion we have taken judicial notice of, and have studied, the abstract filed with this court in the criminal appeal. Courts may take judicial notice of earlier proceedings had in a case. (In re Estate of Rothrock, 173 Kan. 717, 252 P. 2d 598; Ablah v. Eyman, 188 Kan. 665, 365 P. 2d 181; State v. Morris, 190 Kan. 93, 372 P. 2d 282.) The rule is applicable here, for we have held that a post-conviction proceeding brought under K. S. A. 60-1507 is, in a substantive aspect, a part of the criminal cause from which it stems. (Stahl v. Board of County Commissioners, 198 Kan. 623, 426 P. 2d 134.)
As to the next contention, we conceive it to be the better practice, by far, for appellate counsel to be present on the date an appeal has been set for hearing. However, instances are not lacking where oral argument has been waived by counsel on one or both sides of a controversy. Accordingly, we are not prepared to say that failure of an attorney to make an oral argument on appeal is evidence of his legal incompetency. Especially is this true where, as in this case, counsel has prepared and filed the necessary brief and abstract.
It is somewhat traditional that motions for a rehearing of an appeal are rarely granted by this court. Hence, attorneys who have lost a case often do not file such motions- As we view the record of this petitioner’s appeal from his conviction, we gain the impression that his counsel may not justly be charged with inadequacy in failing to file a motion for rehearing.
The charge of incompetency which gives us greatest pause is the failure of Mr. Reynolds to specify as error the overruling of petitioner’s motion for new trial. Under our present rule, a failure of this character precludes the consideration of trial errors on appellate review, even though an alleged federal right may be asserted. (State v. Aeby, 191 Kan. 333, 381 P. 2d 356; State v. Jolly, 196 Kan. 56, 410 P. 2d 267.) Following the rule, this court declined to consider trial errors raised by the petitioner in his criminal appeal and limited the scope of the review to the sufficiency of the evidence to support the conviction. (See State v. Smith, supra.)
The foregoing rule is of a highly technical character. It was designed to promote definiteness and orderly procedure on appellate review by keeping the appellee, as well as this coui't, informed as to errors allegedly committed during the trial. (State v. Aeby, supra.) It would appear, however, that the rule is easily overlooked, for cases abound in the more recent volumes of the Kansas Reports, where appellate counsel have failed to specify as error the overruling of their client’s motions for new trial. The list includes lawyers of considerable trial experience and ability whom we could not brand as incompetent. Nor are we willing so to stigmatize the petitioner’s counsel in this case, who was chosen by petitioner not only to represent him during his trial, but to conduct his appeal, as well.
It is our conclusion that incompetency of counsel is not established.
The petitioner argues, however, that he should have been afforded an evidentiary hearing on his 60-1507 motion where, in person and by counsel, he could have presented evidence to support the claim that his confession was coerced and thus inadmissible at his trial. For reasons hereafter assigned, we reject his claim of error in this regard.
The rule is well settled that where substantial issues are lacking, an evidentiary hearing is not required to be held on a motion collaterally attacking a criminal judgment. Such is the undeniable import both of the statute (60-1507 [h]), and of Rule No. 121 (194 Kan. xxvn).
In State v. Burnett, 194 Kan. 645, 400 P. 2d 971, we had occasion to set out the several provisions of Rule No. 121 which relate to a hearing of a 60-1507 motion. In that case we said:
“. . . The corollary of the requirement that a full, or plenary, hearing be accorded a prisoner, when substantial questions are raised, is the court’s right to dispense with such a complete hearing and to determine the questions submitted in a more summary fashion whenever 'the files and records of the case conclusively show that the movant is entitled to no relief.’ ” (p. 647.)
The foregoing construction of Rule 121 has been approved and consistently followed in numerous cases. (See Smith v. State, 196 Kan. 438, 411 P. 2d 663; Chappell v. State, 197 Kan. 407, 416 P. 2d 786; Davis v. State, 197 Kan. 576, 419 P. 2d 832; and cases therein cited.)
The petitioner urges, nonetheless, that the trial court was obliged to hold a plenary hearing on his motion for the purpose of deter mining whether his confession was legally obtained and properly admitted in evidence at his trial. He argues that his confession was involuntary and that he was entitled to appear personally at an evidentiary hearing to testify in support of this claim.
However, the trial court found from the record of the trial itself that inquiry had been made into the voluntariness of Smith’s confession before the same was admitted in evidence and that the confession was, at that time, determined to be voluntary. There is substantial evidence to support this finding.
Although the record filed in the present appeal does not reveal what actually occurred during the criminal trial, the abstract and counter abstract filed in the former appeal, when considered together, do disclose much of the evidence introduced at that trial, as well as certain proceedings had therein. We have adverted to those documents, of which, as we have said, judicial notice may be taken, and find that before Smith’s confession was admitted the trial court conducted a hearing, out of the jury’s presence, to determine its voluntary character and its admissibility. It was only after such a hearing was held, and after the court had found the confession to be voluntary, that the confession itself was admitted and the jury properly instructed as to how it should consider the same.
The procedure followed in admitting petitioner’s confession into evidence at his trial clearly complied with the guidelines laid down by this court in State v. Seward, 163 Kan. 136, 181 P. 2d 478, and subsequent cases. (See State v. Stubbs, 195 Kan. 396, 407 P. 2d 215; State v. Freeman, 195 Kan. 561, 408 P. 2d 612, cert. den., 384 U. S. 1025, 16 L. Ed. 2d 1030, 86 S. Ct. 1981; State v. Jenkins, 197 Kan. 651, 421 P. 2d 33.) Thus, petitioner’s motion presented no substantial question concerning the law as it then existed.
Since the record of the criminal trial was before it, the trial court was in a position to pass on the factual issues raised by Smith’s motion in a summary manner. Smith had testified at length concerning his version of the circumstances under which his confession was given, as had the officers who received the confession. Reiteration of their testimony would have added nothing new for the court’s consideration. We believe the court below was fully justified in refusing to hold a plenary hearing.
It is suggested that the guidelines formulated by the federal Supreme Court in Escobedo v. Illinois, 378 U. S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758 and Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 were not followed by those officers who questioned the petitioner and received his confession. Granting that such be true, the rules laid down in Escobedo and Miranda are not applicable to this case, for the criminal charges against Smith were tried in October, 1963, many months before the federal decisions came down. In Johnson v. New Jersey, 384 U. S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772, reh. den., 385 U. S. 890, 17 L. Ed. 2d 121, 87 S. Ct. 12, the United States Supreme Court held that neither Escobedo nor Miranda was to be given retroactive application; that Escobedo should be given effect only in cases where trial had begun after June 22, 1964 while Miranda should be applied solely to cases in which trial was commenced subsequent to June 13, 1966.
This petitioner was tried during the era when the test of a confession’s admissibility was whether or not it was voluntary. To be sure, the circumstances under which a confession was made, and the advice given to an accused prior to and at the time a confession was obtained, were always relevant to the issue of voluntariness, but those matters were not decisive on the question of admissibility. As we have said, the court before which this petitioner was tried correctly followed the procedure recognized as being valid in preEscobedo and Miranda days.
We are constrained to hold that the trial court did not err in determining the issues raised by Smith’s collateral motion from the pleadings, files and records in the case.
Other points raised by the petitioner as vitiating the summary hearing held by the trial court have been considered and found to be without merit.
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The opinion of the court was delivered by
Schroeder, J.:
The question presented by this appeal is whether a defendant who has been convicted of a felony and sentenced to the Kansas State Penitentiary, and escapes from the county jail pending his transfer to the penitentiary, can be charged with violating K. S. A. 21-732.
The foregoing statute provides:
“If any person confined in a place of confinement for any term less than for fife, -or in lawful custody going to the place of confinement, shall break such prison or custody and escape therefrom, he shall upon conviction be punished by confinement and hard labor for a term not exceeding five years, to commence at the expiration of the original term of imprisonment.” (Emphasis added.)
The record shows that on the 3rd day of May, 1965, the appellant was sentenced for a term of twenty to forty-two years in the Kansas State Penitentiary upon conviction of first degree robbery, contrary to K. S, A. 21-527. He was sentenced in accordance with K. S. A. 21-530 and K. S. A. 21-107a. .
The journal entry and conveyance papers were filed with the clerk of the district court of Sedgwick County, Kansas, on the 2.1st day of May, 1965. The journal entry in pertinent part reads:
“it IS THE SENTENCE OF THIS COURT AND IT IS HEREBY CONSIDERED, ORDERED, adjudged and decbeed that the said defendant, Larry J. Dearman, be taken to the Jail of Sedgwick County, Kansas and thence by the Sheriff of said County to the Kansas State Penitentiary at Lansing, Kansas, there to be confined for a period of not less than twenty (20) years nor more than forty-two (42) years on the charge of First Degree Robbery, contrary to K. S. A. 21-527 and in accordance with K. S. A. 21-530 and K. S. A. 21-107a and that he pay the costs of this action.”
On the 28th day of May, 1965, the appellant was incarcerated in the Sedgwick County bastille and escaped from the custody of the sheriff who was in charge and who at that time had in his possession the conveyance and commitment papers directing him to take the appellant to the state penitentiary at Lansing, Kansas, on the____ day of May, 1965, signed by the district judge who tried the case.
The appellant had not been released from custody by any order of a court or through any order of the office of the sheriff of Sedgwick County, Kansas, and following his capture he was taken to the Kansas State Penitentiary to abide by the sentence of the court.
The appellant was charged in an information with violation of K. S. A. 21-732, and upon being convicted by a jury was sentenced to one to five years in the Kansas State Penitentiary, said sentence to run consecutively to the sentence given in the first degree robbery case.
It is the appellant’s contention that 21-732, supra, when it speaks of “in lawful custody going to the place of confinement,” means that an escape must be made while the defendant is in movement or is actually being transported to the place of confinement, i. e., a car, an automobile, or some type of conveyance. The appellant argues he must have first left the Sedgwick County jail. In support of this argument he cites K. S. A. 21-735, as applicable, which states in the first sentence, “If any person confined in any county jail upon conviction for any criminal offense,” shall break such prison or custody, etc. He argues this section of the statute is for any and all criminal offenses under which a defendant may be confined at that time in the county jail.
We fail to see merit in the appellant’s argument.
To determine which of the various statutes relating to escape is applicable to the situation at hand, consideration of each of the sections is required. K. S. A. 21-732, 21-733, 21-734 and 21-737 all relate to the confinement of a person “for any term less than for life.” In 21-733, supra, specific reference is made to confinement in the penitentiary, while in both 21-734, supra, and 21-737, supra, at hard labor is specifically mentioned in connection with the confinement. Clearly, the confinement mentioned in each of these sections has reference to sentence resulting from a felony conviction. A study of the severity of the sentence prescribed for a violation of each of these sections also discloses they relate to felony convictions.
On the other hand K. S. A. 21-735 and 21-735a specifically make reference to “any person confined in the county jail upon conviction for any criminal offense.” These sections relate to confinement in the county jail upon conviction for criminal offenses which authorize sentence to the county jail, for which the term of imprisonment is one year or less. The sentence imposed for a violation of these sections also indicates an intention of the legislature to make them applicable only to offenses of this nature, the sentence being less severe. (See, Oller v. Amrine, 155 Kan. 703, 127 P. 2d 475.)
The appellant cites Wiles v. Board of Probation & Parole, 191 Kan. 705, 383 P. 2d 969, where an escaped prisoner, under facts similar to those here, was prosecuted under 21-735, supra. The point here in question was not raised in that habeas corpus proceeding, and it cannot be relied upon by the appellant for support.
Turning now specifically to 21-732, supra, it is applicable when a prisoner has reached his destination of confinement as ordered by the court, be it the reformatory, the women s industrial farm or the Kansas State Penitentiary for men. It is also applicable when the prisoner is going to such place of confinement, under the sentence of the court. It covers a prisoner who has received a sentence for a term of years less than life at a penal institution, and is in the process of being taken to that institution.
It has been held that a sentence begins to run in a felony case when the custody of the defendant is delivered to the sheriff. In State v. Nichols, 167 Kan. 565, 207 P. 2d 469, this court stated:
“. . . Normally, after sentence is imposed, the district court has nothing further to do with respect to the defendant. It is the duty of the sheriff to carry out the order of the court and transfer defendant to the state penitentiary. In this case, no doubt the sheriff was awaiting the copy of the journal of the court required by the section last mentioned. It is well settled by our decisions (Parks v. Amrine, 154 Kan. 168, 117 P. 2d 586; State v. Carte, 157 Kan. 139, 138 P. 2d 429; Layman v. Hudspeth, 162 Kan. 445, 176 P. 2d 527) that defendant commenced the serving of his sentence on January 14, the day he was sentenced and taken into the custody of tifie sheriff. . . .” (pp. 572, 573.)
K. S. A. 62-1518 states:
“Where any convict shall be sentenced to any punishment the clerk of the court in which sentence was passed shall forthwith deliver a certified copy thereof to the sheriff of the county, who shall without delay, either in person or by a general or usual deputy, cause such convict to receive the punishment to which he was sentenced.”
The foregoing section makes it incumbent upon the sheriff to carry out the order of the court without delay.
In the instant case the commitment order directed the sheriff to take the appellant to the Kansas State Penitentiary. (See, K. S. A. 76-2306 and 62-104.) The appellant had been sentenced to the Kansas State Penitentiary on a felony for a term of twenty to forty-two years. At the moment he was taken into custody by the sheriff following the sentence of the court, he commenced serving his sentence. It was then the duty of the sheriff upon receiving the proper papers to take the appellant without delay to the Kansas State Penitentiary.
It is. unnecessary to resort to the various definitions of the word “going” in the dictionary. The appellant selects one of the appropriate meanings to support his argument that it means the actual physical act of movement. The common use of the adjective form connotes an intention or state of mind. Nearly every person has heard the phrase “He’s going up,” or “He’s going to the penitentiary.” When so used, it is known that reference is to the future act of movement. Here it may be said the circumstances are such that the prisoner is known to be advancing toward a certain objective — commitment in the state penitentiary at Lansing.
We construe 21-732, supra, to mean that a prisoner is going to the place of confinement when he is detained and in custody after being sentenced by a court as a result of a felony conviction, inasmuch as he is already serving the sentence imposed upon him. When he breaks such custody and escapes therefrom he is properly charged under 21-732, supra.
We hold when the appellant was sentenced and delivered to the custody of the sheriff to be taken to the penitentiary to serve his sentence, he was in lawful custody going to the penitentiary.
The appellant next contends 21-732, supra, is so vague as to be unconstitutional. (Citing, State v. Hill, 189 Kan. 403, 369 P. 2d 365, 91 A. L. R. 2d 750.) His argument is based upon the proposition that the term “going to” does have two meanings; that under one meaning he would not be guilty, and under another construction he would be.
Alternative definitions of a given word in common usage is no ground for declaring a statute unconstitutional. Appellant cannot seriously contend that one under sentence to serve twenty to forty-two years in the penitentiary, and held in custody of the sheriff awaiting transportation, could feel free to break custody and escape under a statute which forbids one to break custody.
The judgment of the lower court is affirmed. | [
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Greene, C.J.:
The taxpayer, Prieb Properties, LLC, (Prieb or Taxpayer), seeks judicial review of an order of the Court of Tax Appeals (COTA) that established the value of its commercial real property in Topeka, arguing that COTA erred in failing to recognize that it was barred by res judicata or collateral estoppel from departing from its prior decision setting value on the same property, that COTA was not properly constituted for its ruling, and that COTA erred either in its findings of fact or conclusions of law in relying on build-to-suit lease rental rates for probative evidence of market rent. We reject Prieb’s argument on the effect of COTA’s prior ruling and the challenge to COTA’s legal status when its order was issued, but we conclude that build-to-suit lease rental rates are not probative of market conditions and thus reverse and remand with directions.
Factual and Procedural Background
Prieb owns a 45,814-square-foot building on about 4 acres of land located on Wanamaker Avenue in Topeka’s prime retail corridor, and it currently leases the building to Best Buy Co., Inc. When Shawnee County valued the property at $4,291,900 for tax year 2006 and $3,850,000 for 2007, Prieb appealed these values to COTA, contending the property should be valued at $2,520,000 for each of these tax years. After an evidentiary hearing, COTA established the value of the properly at $3,337,000 for 2006 and $3,850,000 for 2007. Judge Kubik dissented, wrote a separate opinion, and embraced the Taxpayer’s proposed value for both tax years. After reconsideration was denied by COTA, Prieb seeks our review of COTA’s valuation order.
The record on appeal reflects that the property was burdened by a lease agreement dated August 15,1996, for a term of 15 years, which required that lessor construct and deliver to tenant an expansion of the building — then configured within 27,000 square feet — to its current size of 45,814 square feet. The parties do not dispute that this lease arrangement was a typical first generation “build-to-suit” lease agreement with lease rental rates established accordingly. For 2006 and 2007, the lease provided for a rental rate of $10.50 to $11 per square foot.
Additional facts are provided below where material to the issues framed.
Standards of Review
COTA decisions are reviewed under the Kansas Judicial Review Act (KJRA), K.S.A. 2010 Supp. 77-601 et seq. See K.S.A. 2010 Supp. 74-2426(c); K.S.A. 2010 Supp. 77-603(a). The KJRA specifically provides for our standards of review, and several are applicable to this appeal. We are authorized to grant relief when the party seeking such relief sustains its burden to prove the invalidity of the agency action in one or more of the following manners that have been alleged in this appeal: (1) COTA has erroneously interpreted or applied the law (K.S.A. 2010 Supp. 77-621[c][4]); (2) COTA has engaged in an unlawful procedure or has failed to follow prescribed procedure (K.S.A. 2010 Supp. 77-621[c][5]); (3) COTA was improperly constituted as a decision-making body when the decision was issued (K.S.A. 2010 Supp. 77-621[c][6]); (4) COTA’s decision was based on a determination of fact that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole (K.S.A. 2010 Supp. 77-621[c] [7], [d]); (5) COTA’s decision is otherwise unreasonable, arbitrary or capricious (K.S.A. 2010 Supp. 7-621[c][8]).
For purposes of our review of fact findings express or implied, our review of the record as a whole means that
“the adequacy of the evidence in the record before [us] to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of die relevant evidence in the record ... cited by any party that supports such finding, including determinations of veracity by tire presiding officer . . . K.S.A. 2010 Supp. 77-621(d).
We do not, however, reweigh the evidence or engage in de novo review. K.S.A. 2010 Supp. 77-621(d).
In applying our standards of review in this context, we are required to take due account of the rule of harmless error. K.S.A. 2010 Supp. 77-621(e).
Did COTA Err in Refusing to Recognize and Apply Its Prior Order Establishing Value of This Property to the 2006 and 2007 Tax Years?
For its first issue on appeal, the Taxpayer argues that res judicata and collateral estoppel require reversal of COTA’s 2006 and 2007 decisions, because the issue of what rents are to be used in an income approach to valuation was raised and decided in the Board of Tax Appeals’ (the predecessor to COTA) decision for tax year 2004 regarding this property. In fact, BOTA ruled in its valuation decision for this property in the 2004 tax year that build-to-suit lease rental rates were not probative of market rents.
The County argues that because the Taxpayer did not raise the res judicata and collateral estoppel issues before COTA, these issues are not properly before this court. Although Taxpayer’s petition for reconsideration included the statement: “The exact same issue with the exact same parties for the exact same location was decided by the Court of Tax Appeals for years 2003 & 2004 with the results being applied to the 2005 tax year,” the Taxpayer did not articulate that it was making res judicata and collateral estoppel arguments or support the arguments with any pertinent authority. Because the Taxpayer did not malee these arguments below, the issue is not properly before this court. See K.S.A. 2010 Supp. 77-617; Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 411, 204 P.3d 562 (2009) (“a party may only argue the issues raised at the administrative hearing”); In re Tax Exemption Application of Strother Field Airport, 46 Kan. App. 2d 316, 320, 263 P.3d 182 (2011) (“When a party fails to raise a specific ground for relief in the petition for reconsideration, that argument is not properly preserved for judicial review.”).
Even if this court were to reach the merits of these issues, Taxpayer’s arguments would fail because the tax years in question are different. Our Supreme Court recently decided that when different tax years are involved in matters of taxation, principles of res judicata and collateral estoppel do not apply because taxes are levied annually. In re Tax Appeal of Fleet, 293 Kan. 768, 272 P.3d 583 (2012). Here, different tax years were at issue, and res judicata and collateral estoppel do not apply. Moreover, the doctrine of stare decisis is not generally applicable to decisions of administrative tribunals. In re Appeal of K-Mart Corp., 238 Kan. 393, Syl. ¶ 3, 710 P.2d 1304 (1985). “ ‘As a general matter,’ the court explained in Hatch v. FERC, 654 F.2d 825, 834 (D.C. Cir. 1981), ‘an agency is free to alter its past rulings and practices even in an adjudicatory setting. . . . However, it is equally settled that an agency must provide a reasoned explanation for any failure to adhere to its own precedents.’ ” Honeywell Intern. v. Nuclear Regulatory Com’n, 628 F.3d 568, 579 (D.C. Cir. 2010); see Western Resources, Inc. v. Kansas Corporation Comm’n, 30 Kan. App. 2d 348, Syl. ¶ 7, 42 P.3d 162, rev. denied 274 Kan. 1119 (2002).
For these reasons, we reject the Taxpayer’s first challenge to COTA’s decision.
Was COTA Properly Constituted at the Time of Certifying the Order at Issue?
Taxpayer next argues that COTA was not properly constituted at tire time its decision was certified to the parties. COTA heard this case on January 12-13, 2009. The parties’ written closing arguments were submitted to the court on May 4, 2009, and COTA issued its order on September 22, 2010. To correct a minor error in the original certificate of mailing, COTA recertified its order on September 29, 2010.
On August 19, 2010, Judge Rebecca Crotty, who at the time of the hearings in this case was COTA’s chief judge, was appointed to the Shawnee County District Court. She was sworn in on September 27, 2010.
Taxpayer argues that at time of the final certification of the COTA order, the only two remaining COTA members were Judges Larkin and Kubik, one voting with the majority and one dissenting. Taxpayer argues that COTA’s decision cannot be upheld by a 1 to 1 ruling.
Taxpayer cites no legal authority for finding diat COTA was not properly constituted at the time it issued its decision. As pointed out by the County, however, according to K.S.A. 2010 Supp. 74-2433, COTA judges hold office until their successors are appointed and confirmed. Judge Crotty’s successor was not confirmed until Januaiy 19, 2011.
Moreover, we note that COTA’s first service of the order was on September 22, 2010, prior to Crotty’s swearing-in as a district court judge. This service was valid and effective inasmuch as it served the final order on all parties and attorneys of record. The subsequent recertification and service did not change the final order in any way and added only the County’s new attorney to the service list. To the extent that there was any error in certifying and serving the decision 2 days after Crotty took the district court bench, we can only consider that to be harmless error that did not serve to invalidate the entirety of COTA’s final action in this rather complex proceeding. See K.S.A. 2010 Supp. 77-621(e).
We therefore reject Prieb’s challenge to COTA’s legal configuration when the order was finally certified.
Was COTA’s Valuation Order Adequately Supported by Substantial Evidence and Otherwise in Accord with Kansas Law and Generally Accepted Appraisal Practice?
The Taxpayer next challenges both the factual and the legal basis for COTA’s valuation decision, arguing that rental rates from build-to-suit leases are not probative of market value and should be barred from consideration as market value indicators by generally accepted appraisal practice. We generally agree with Taxpayer on both counts for a host of reasons.
At the outset, and despite our recognition that each tax year presents a new case for purposes of res judicata, we note that the back-to-back decisions on this property reflect completely inconsistent views on the prevailing issue. We quote from the tax year 2004 BOTA decision both because it correctly frames the issue and because it represents a clear inconsistency in approach when compared to the COTA decision at issue in this appeal.
“Both parties acknowledge that the realities of the real estate market for build-to-suit big box facilities present unique appraisal challenges. These challenges arise because big box facilities typically are built for the special business requirements of a particular retailer and because construction costs of such facilities often are financed through build-to-suit lease arrangements. When big box properties sell, they typically sell based on the intangible investment value of an existing build-to-suit lease. If vacant, such properties sell at a significant discount because tlie existing improvements do not fit the specific requirements of a new occupant, resulting in considerable functional obsolescence. . . .
“Based on the expert opinion evidence presented, the Board concludes that build-to-suit leases are financing arrangements for new construction and generally do not provide a reliable indication of value for big box facilities that are resold on the secondary market. There is no indication that the county made any adjustment in its appraisal to account for the functional obsolescence that arises when a big box property that was built to suit the particular purposes of one retailer is sold in a hypothetical sale for use by another retailer (or, for that matter, by the same retailer, who would pay no higher rental rates than the next competitor).”
In the COTA decision subject of this appeal, COTA noted that it had ruled differently in its previous decision, but indicated that “its prior position was overly broad.” Here, COTA took a hybrid approach to the valuation issue, concluding that for 2006 tax year, the Taxpayer’s appraisal approach would be endorsed with a replacement of the rental rate of $7 per foot with $8.50 per foot— which was apparently derived from the County’s appraisal for 2007 — and appeared to be based upon the lease rate for a single property that was subject to a second-generation build-to-suit lease. For the 2007 tax year, COTA embraced the County’s appraisal approach and value, even though that approach utilized as comparables three big box properties with first generation tenants.
Thus, clearly this appeal frames for our consideration whether the rental rates for properties subject to build-to-suit leases are reflective of market value and can be utilized within the income and sales comparison approaches to value without adjustment under generally accepted appraisal practice.
What interest does Kansas law require to he valued for purposes of ad valorem taxationP
At the outset, we must determine what interest Kansas law contemplates shall be valued for ad valorem taxation. The Taxpayer asserts that it is the fee simple interest to be valued, whereas the County contends on appeal that when a property is under lease, it is the leased fee interest to be valued. The County’s assertion is without support in the record, however, because all appraisers who testified in this matter agreed that Kansas tax law requires valuation of the fee simple interest. Nevertheless, we must decide this threshold question because it may drive the relevancy of first or second generation build-to-suit rental rates in determining the value of the interest.
“Fee simple interest” is defined as “[a]bsolute ownership unencumbered by any other interest or estate, subject only to the limitations imposed by the governmental powers of taxation, eminent domain, police power, and escheat.” The Appraisal of Real Estate, p. 114 (13th ed. 2008). Stated another way, “[ojwnership of the fee simple interest is equivalent to ownership of the complete bundle of sticks [property rights] that can be privately owned.” The Appraisal of Real Estate, p. 112. A “leased fee interest” is defined as “[t]he ownership interest held by the lessor, which includes the right to the contract rent specified in the lease plus the reversionary right when the lease expires.” The Appraisal of Real Estate, p. 114.
Kansas tax statutes do not use the term “fee simple”; however, it is clear that the legislative intent underlying the statutory scheme of ad valorem taxation in our State has always been to appraise the property as if in fee simple, requiring property appraisal to use market rents instead of contract rents if the rates are not equal. K.S.A. 79-501 requires that each parcel of real property be appraised for taxation purposes to determine its fair market value. In turn, K.S.A. 2010 Supp. 79-503a defines “fair market value” as “the amount in terms of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion.” (Emphasis added.) It is clear, therefore, that the fair market value statute values property rights, not contract rights.
Kansas’ “rules of construction” statute also supports the legislature’s contemplation of fee simple valuation, as the statute states that “ ‘Land,’ ‘real estate’ and ‘real property’ include lands, tenements and hereditaments, and all rights to them and interest in them, equitable as well as legal.” K.S.A. 2010 Supp. 77-201, Eighth.
Although the opinion is not specific on the issue before us, our court has faced this issue and impliedly endorsed the view that Kansas ad valorem tax law contemplates valuation of the fee simple interest. See In re Equalization Proceeding of Amoco Production Co., 33 Kan. App. 2d 329, 336-40, 102 P.3d 1176 (2004), rev. denied 279 Kan. 1006 (2005). There, the taxpayer relied on an appraisal of a gas processing property based on an income approach to value that capitalized the projected revenue from gas processing contracts in place. COTA predecessor BOTA rejected this approach and endorsed a value based on the cost approach. That approach was sponsored by a commercial appraiser employed by the Kansas Department of Revenue, John Cooper, who testified:
" ‘Contracts on an easting gas processing plant amount to encumbrances. They could, they could add value or deduct from value. Therefore, you have to appraise a plant free and clear like an office building. Rents are important but you appraise the property free and clear because those leases may be favorable or disfavorable to the owner. A buyer is going to take that into consideration because they are going to have to live with that long-term. So far as I know ad valorem taxes valuation is based on market value fee simple interest. Like I said yesterday, anything less than fee simple interest is a partial interest ... in the property, not 100 percent. That’s why I didn’t consider the fact that we didn’t have those contracts that important.’ ” (Emphasis added). 33 Kan. App. 2d at 340.
Our court embraced this view in affirming BOTA’s order accepting Cooper’s approach and valuation for the property in question. See 33 Kan. App. 2d at 336-40. In so doing, we acknowledged that Kansas law contemplates valuation of the fee simple interest in real property.
Finally, we note that COTA itself has faced this issue and decided that Kansas law requires the valuation of the fee simple estate and not the leased fee interest. In an opinion issued by this court in the case In re Tax Complaint of Wine, 46 Kan. App. 2d 134, 260 P.3d 1234 (2011), our court quoted from a COTA order addressing this question. There, the issue was whether it was acceptable to capitalize contract rents payable under existing ground leases rather than to use market rents to value the underlying land. COTA decided that mere capitalization of contract rents was unacceptable, reasoning:
“ ‘The [lessor’s] share is undervalued because it does not include the value of the land’s undivided fee simple estate. Instead, the [lessor] is being assessed on the value of the leased fee interest. The undivided fee is comprised of all rights and interests in a given parcel of real estate without condition or encumbrance. The leased fee, which is a lesser estate in property includes only the landowner’s right to receive rents during the term of the lease, plus tire value of the reversion upon its expiration.’ ” 46 Kan. App. 2d at 136.
For all of these reasons, we conclude the Kansas Legislature intended ad valorem taxation of the fee simple interest, not the leased fee estate. Why is this important to this appeal? We agree with one noted commentator, who stated that when valuing the fee simple estate:
“The appraiser theoretically should approach tire valuation as if tire property were vacant and available to be leased at market rent, recognizing the necessary adjustment for lease-up to stabilized occupancy. Although the definitions are not all consistent with this approach, in most assignments that involve a fee simple estimate for a leased property, the appraiser is seeking a value that assumes fully leased (or at a normalized occupancy level) at market rent.” (Emphasis added.) Lennhoff, Fee Simple? Hardly, The Appraisal Journal 400, 402 (Oct. 1997).
Are Build-to-Suit Rental Rates Reflective of Market ValueP
Before consulting various authoritative sources on this question, we take a common-sense approach to the problem: What is the nature of a build-to-suit lease? We suggest that such a lease is essentially a financing agreement between a lessor and lessee, and the rental rates therein are based in large part upon the revenue needed to amortize the investment required for the required construction — plus a measure of profit — over the lease term or extensions thereof. Accordingly, when one takes a snapshot view of rental rates at any time during such a lease, these rates are not reflective of market rent, but rather just reflective of the rate re quired in that specific situation to continue an agreed revenue stream to amortize the lessor’s investment, subject to a host of financial risks. In other words, contract rents in a build-to-suit lease are not designed to capture market value for each period within the lease term, but rather are designed to amortize an investment made at the outset and may vary dependent on factors that are unrelated to the real estate market thereafter. Reliable source material is in agreement with this overview.
Perhaps die most rehable and authoritative source in this area is the textbook, The Appraisal of Real Estate (13th ed. 2008), published by the Appraisal Institute. This text recognizes the essential difference in build-to-suit rental rates and true market rentals.
“Like all contracts, a real estate lease depends on the actual performance of all parties to the contract. A weak tenant with the best of intentions may still be a high risk. The same is true of a financially capable tenant who is litigious and willing to ignore lease terms, break a lease, and defy lawsuits. If the tenant defaults or does not renew a lease, the value of the underlying property does not change, but the value of the leased fee may be seriously affected.
“Because a leasehold or a leased fee is based on contract rights, the appraiser needs special training and experience to differentiate between what is generally representative of the market and other elements of a contract that are not typical of the market. An understanding of the risks associated with the parties and the lease arrangement is also required. A lease never increases the market value of real property rights to the fee simple estate. Any potential value increment in excess of a fee simple estate is attributable to the particular lease contract, and even though the rights may legally ‘run ivith the land,’ they constitute contract rather than real estate rights.” (Emphasis added.) The Appraisal of Real Estate, p. 447.
The Appraisal Journal also recognizes that build-to-suit rental rates should not be confused with market rentals in applying an income approach to value:
“Direct capitalization seems to be the preferred model to develop an opinion of value for custom commercial properties via the income capitalization approach. To apply this approach properly, support is needed for its three major ingredients: potential gross income, operating expenses, and overall capitalization rate. The same issues arise with its application as with the sales comparison approach when the appraisal problem involves estimating the market value of the fee simple interest of the custom-built property.
“The first step in applying the income capitalization approach is to determine the market rent. In order to properly develop the market rent, sufficient market evidence must be found of the amount that a willing lessee would pay a willing lessor to occupy the space. A search of sources usually available to appraisers (such as CoStar, NNNEx.com, or similar services) will quickly reveal many leases. When these leases are scrutinized, however, it will be apparent that almost every one is a lease to the original tenant based on a rate that was driven by that tenant’s custom-construction specifications. As such these lease rents have little in common with the rent a second-generation tenant would be willing to pay for the space. Evidence of this is both obvious and available.
“For example, when the fast-food franchise Roy Rogers Restaurants closed, many of its stores went to other fast-food franchises or to local restaurants. However, the buyers stripped the restaurants to their shells, removing all evidence of the prior user, and then rebuilt the restaurants to their own prototypical specifications. The buyers clearly did not want — nor were they willing to pay for — tire sometimes expensive custom features of the original construction. So, it quickly becomes apparent that what may look like a substantial pool of potential leases that might be used as comparables in an estimate of market rent for the subject is really of no use whatsoever in determining how much a second-generation tenant would be willing to pay in rent for these custom-built properties.” Lennhoff, You Can’t Get the Value Right If You Get the Rights Wrong, The Appraisal Journal 55, 57 (Winter 2009).
The most comprehensive judicial treatment of this problem is found in a discussion by the Wisconsin Supreme Court. There, the court was faced with the same problem as here and ultimately ruled that the fair market value of a fee simple interest must be based on market rents rather than contract rents, absent the existence of an encumbrance bringing the leased fee value below actual market rates. Walgreen Co. v. City of Madison, 311 Wis. 2d 158, 752 N.W.2d 687 (2008). In that case, appraisers for tire taxpayer explained the problem posed by valuation of properties burdened by build-to-suit leases:
“ ‘[F]reestanding drug stores are typically developed on a build-to-suit basis between a developer, acting as the landlord, and the planned tenant. In these instances, the developer is responsible to construct die premises to the specifications provided by the tenant. Construction costs often include a higher than average entrepreneurial profit to guarantee against cost overruns and time delays. Subsequently, the rental rate is an amortization over the lease term of die expenses incurred to construct the tenant-specific improvement.
“ ‘These long-term build-to-suit leases typically do not allocate any marketing or leasing expenses. Also, vacancy rates are likely understated because these single-tenant properties require a longer leasing period to find a suitable tenant. ... By factoring in these associated costs the resulting rate is most often well above the open market rate commanded by other similar retail properties in the same area.’
“The appraisals conclude: ‘Similar to a sale-leaseback transaction, a build-to-suit lease is really a financing tool used by companies to keep capital available for other core business purposes. As such, we will estimate a market rent for the subject building rather than rely on the current contract rent.’ ” Walgreens, 311 Wis. 2d at 189-90.
The Wisconsin court considered the appraisers’ testimony and approach to be consistent with Wisconsin law and noted that “a real property assessment should not be based on factors such as unusual financing or above market rent that are not normal conditions of sale reflected in the value of a fee simple property interest.” 311 Wis. 2d at 190.
We need not belabor our opinion with quotations from other authoritative source material and decisions in accord from other jurisdictions. Suffice to say that, with a very few exceptions, it is generally recognized that build-to-suit lease rental rates are not reflective of market conditions. See, e.g., Grant County Assessor v. Kerasotes, 955 N.E.2d 876 (Ind. Tax Ct. 2011); Federated Retail Holdings, Inc. v. County of Ramsey, Nos. 62-CV-08-5061, CO-07-4069, 2011 WL 3821296 (Minn. Tax Ct. 2011) (unpublished opinion); Shapiro, Big-Box Retailers Beware How Assessors Overvalue Your Property, National Real Estate Investor (Sept. 2000) (http://www.aptcnet.com/ articles/big_box_retailers.htm); Lennhoff, You Cant Get the Value Right If You Get the Rights Wrong, The Appraisal Journal, pp. 55-60; Lennhoff, Fee Simple? Hardly, The Appraisal Journal, pp. 400-02; cf. Rhodes v. Hamilton Cty. Bd., 117 Ohio St. 3d 532, 533-35, 885 N.E.2d 236 (2008); see also Matter of Eckerd Corporation v. Burin, 83 A.D.3d 1239, 1241-43, 920 N.Y.S.2d 824 (2011) (finding that the weight of evidence supported appraiser’s finding that build-to-suit properties were not truly reflective of market value); Matter of Rite Aid of New York No. 4928 v. Assessor of Town of Colonie, 58 A.D.3d 963, 964-66, 870 N.Y.S.2d 642 (2009) (finding that the lower court’s decision crediting one appraiser who utilized build-to-suit leases went to the weight of the evidence, not its competency, and affirming the lower court’s decision).
Consequently, we hold that rental rates contained in or reflected by commercial build-to-suit leases are not reflective of market con ditions and may not be utilized for purposes of the income approach or the sales comparison approaches to value for ad valorem tax purposes in Kansas without a disentanglement by adjustments that is beyond the scope of this appeal. See The Appraisal of Real Estate, p. 447.
Is COTA’s Decision Supported by Substantial Evidence Given Our Conclusion that Build-to-Suit Rental Rates Cannot Be Used?
Although our holding above might serve to dispose of this appeal, we analyze the entire record for the purpose of determining whether COTA’s decision might warrant affirmation on other grounds. We determine that it does not.
First, we note that for tax year 2007, COTA embraced the appraised value of County expert Keller without modification. Because both the income and the sales comparison to value indicators were based on first generation build-to-suit lease rental rates without adjustment, those value indicators were invalid, departed from prescribed procedure as we have held above, and significantly impeached the valuation opinions of the appraiser and COTA. See K.S.A. 2010 Supp. 77-621(c)(5).
Next, we turn to tax year 2006, where COTA again acknowledged that the parties’ sales and income approaches were the best indicators of value for the property. COTA tíren found that County Appraiser Meyer did not perform a standard sales approach in 2006 and that the County’s 2006 income approach had little probative value. COTA then found that Maier’s [the Taxpayer’s appraiser’s] general approach was conceptually sound, but his net rental rate of $7 per square foot was “in error.” The apparent basis for this finding was COTA’s “concerns regarding the comparability of Maier’s sales and rental comparables.” Accordingly, COTA substituted an annual rental rate of $8.50 per square foot, apparently influenced by Keller’s work in his 2007 appraisal. COTA commented that it found “credible evidence that the higher rental rates of the build-to-suit rental comparables were due to their superior locations” and that “Keller’s rental comparables, unlike Maier’s, were situated in locations comparable to the subject property.”
The County argues that the parties agreed to consolidate the 2006 and 2007 cases and it was appropriate for COTA to consider appraisal information from both years when making its decision. Both parties note and concede that the $8.50 per square foot rental rate was extracted from Keller’s 2007 appraisal, where Keller noted that the Goodwill store in Topeka was similar to the subject property in terms of location, accessibility, quality and condition, age, time, and size.
The problem with COTA’s reliance on Keller’s comparables, however, is that Keller made no adjustments “to differentiate between what is generally representative of the market and other elements of the contract [here the build-to-suit value] that is not typical of the market.” The Appraisal of Real Estate, p. 447. Keller testified that he had no knowledge about how the rental rate was determined for any of the rent comparables he used. Keller also acknowledged that sales prices are influenced by the credit-worthiness of the tenant. He said he made adjustments for this; however, the only adjustment was to one lease, and it was not related to the Goodwill lease.
Moreover, only 18,000 feet of the Goodwill space was subject to the lease relied upon, even though it was a 35,000-square-foot building. The Taxpayer challenged the comparability of this lease rate because the lease of only 18,000 square feet would generally drive a higher rental rate for the smaller space. And, again, the lease was a second generation build-to-suit lease and subject to many of the problems already identified above, although perhaps less so due to its being a second rather than a first generation lease.
The County argues that we have been known to endorse COTA’s lack of precision in its factfinding and rationale so long as the resulting determination is conceptually sound and supported by substantial evidence. See, e.g., In re Tax Appeal of Dillon Stores, 42 Kan. App. 2d 881,221 P.3d 598 (2009). To find a lack of substantial evidence, we have said the decision must be so wide of the mark as to be outside the realm of fair debate. In re Tax Appeal of Horizon Tele-Communications, Inc., 241 Kan. 193, 203, 734 P.2d 1168 (1987). So, is COTA’s selection of the rental rate for 2007 this wide of the mark?
We must conclude that the selection of the $8.50 rental rate is, indeed, too wide of the mark and outside the realm of fair debate for at least two reasons: (1) The only clear basis for this rate is a second generation build-to-suit lease on only 18,000 square feet, which has been substantially impeached by Taxpayers testimony as to lack of comparability and this court’s holding on the problems of using build-to-suit rates without adjustment; (2) the record as a whole clearly supports market rental rates substantially below the $8.50 rate. This record evidence is best summarized by the dissenting opinion filed by Judge Kubik, who stated:
“[T]he parties primary dispute was in their selected rental rates. Maier’s income approach determined a market rental rate of $7.00 per square foot whereas the County and its appraiser Keller determined market rental rates of $9.50 and $9.25 per square foot, respectively. I find that the rental rates of comparable big box properties located in tire Wanamalcer corridor support the reduced 2006 and 2007 appraised values requested by the Taxpayer. At the hearing, evidence was presented that a 40,000 square foot big box property originally constructed in 1994 with Wanamaker road visibility was leased to Bed, Bath and Beyond for $5.00 per square foot. Further, Keller rental comparable 5, the ‘old Hobby Lobby property,’ is a 40,000 square foot single tenant big box property constructed in 1993 located within two blocks of the subject property with similar location and access as the subject property. This property had an asking rental rate of $6.25 per square foot.
“These rental rates are the best evidence of the market and support the findings and conclusions found in the Maier appraisal. The Keller appraisal relied on build-to-suit rental rates for its rental rate determination. These rates frequently reflect a financing transaction, rather than the market rental rates of the particular property.”
We agree with Judge Kubik. We have little confidence in an appraised value determined within the framework of one appraiser with a rather arbitrary substitution of a key factor that proves to be of limited comparabiliiy and tainted by a build-to-suit lease. This is especially true given our duty to examine the record as a whole and our conclusion that $8.50 appears out of line when compared to a host of evidence to support a market rental rate of $5 to $7 for comparable properties that are not currently burdened by build-to-suit leases.
Notwithstanding our disapproval of COTA’s valuation decision, we are not inclined to direct the entry of a substitute value because COTA had concerns regarding the comparability of at least some aspects of the Maier appraisal as well. Thus, in summary, we hold as follows relative to the property valuations for both respective tax years:
(1) COTA’s valuation order on the subject property for the 2006 tax year is reversed and vacated because a key factor in its approach was not supported by substantial evidence when viewing the record as a whole, and it appears to have been arbitrarily selected, and — to the extent it was influenced by build-to-suit leases — it departed from prescribed procedure, all requiring relief under K.S.A. 2010 Supp. 77-621(c)(5), (7), and (8);
(2) COTA’s valuation order on the subject properly for the 2007 tax year is reversed and vacated because the conceptual approach endorsed was tainted by heavy reliance on rental rates taken from first generation build-to-suit leases, thus departing from Kansas law and prescribed procedure, requiring relief under K.S.A. 2010 Supp. 77-621(c)(4) and (5).
For these reasons, COTA’s valuation order on the subject properties is reversed and vacated, and the matter is remanded to COTA with directions to conduct such proceedings as may be required to achieve fair market value of the property for both tax years in a manner not inconsistent with this opinion.
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Marquardt, J.:
Bernetta F. Benham, an adult with progressive dementia, is represented by Kip Elliot of the Disability Rights Center of Kansas. She challenges the district court’s decision that her guardian, Karen Glenn, has placed her in the least restrictive setting appropriate to her needs that is reasonably available. Bernetta also appeals the denial of her motion to discharge her court-appointed attorney. We affirm.
Facts
Bernetta, a 79-year-old woman, currently resides at the Andbe Home, Inc., a 70-bed adult care nursing facility in Norton, Kansas. Bemetta’s husband, Wilbur, and her sister, Karen Glenn, also live in Norton.
Prompted by Bemetta’s declining health and financial problems, in April 2007, Bernetta and Wilbur moved from Arizona to Norton, Kansas. In August 2007, Bernetta began seeing Dr. Glenda Maurer, who diagnosed Bernetta with mild dementia, Ehlers Danlos Syndrome, glaucoma, hypertension, depression, and hyperlipidemia. Glenn believed that Bernetta was not receiving the care she needed from Wilbur and discussed her concerns with Dr. Maurer.
In die spring of 2008, Wilbur told family members that he intended to take Bernetta on an extended trip to Colorado. Glenn discouraged Wilbur from taking Bernetta to Colorado because of Bernetta’s health problems. Wilbur, notwithstanding the admonition, took Bernetta to Colorado. On July 11, 2008, Bernetta was admitted to a Colorado hospital where she was diagnosed with pneumonia and chronic obstructive pulmonary disease. She remained in the hospital for about a week before returning to Norton, where she was again hospitalized. She was discharged from the Norton hospital on August 1, 2008, to the Andbe Home, where she would receive rehabilitation, skilled supervision, and 24-hour nursing assistance. When Bernetta was admitted to the Andbe Home, she was unable to walk, could not eat, was on oxygen, and had a catheter because of a urinaiy infection. Throughout the fol lowing months, Bemetta became more mobile and some of her health conditions stabilized.
On April 29, 2009, Glenn filed a petition to be appointed Bernetta’s guardian and conservator. The court appointed Glenn as Bemetta’s temporary guardian and set a date for a hearing on the petition. Glenn proposed a Guardianship and Conservatorship Plan (The Plan), which was approved by Ranee E. Ames, Wilbur’s attorney; Kip Elliot of the Disability Rights Center of Kansas (DRCK), who was acting as Bemetta’s attorney; and Melissa M. Schoen, Bemetta’s guardian ad litem. The Plan was filed with the court on January 27, 2010. The district court entered an order appointing Glenn as Bernetta’s guardian and conservator on March 29, 2010, and approved The Plan submitted by Glenn.
The Plan provided:
“[I]f the interested parties hereto cannot agree upon whether to move the ward to a less restrictive setting or continue her placement in the adult care nursing facility, the parties agree to submit the issue of where the ward shall reside to the Court for disposition on March 25, 2010.”
Elliot filed a motion on March 23,2010, to continue the hearing. The district court entered an order continuing the hearing to August 23 and 24, 2010; however, both Elliot and Glenn filed objections to some provisions of the order. The district court settled the objections in an order filed on April 22, 2010, stating that the only issue for determination at the hearing is “[w]hether the guardian has properly chosen Andbe Home, Inc., a nursing home, as the least restrictive setting appropriate to the needs of Bemetta Ben-ham, which is reasonably available as required by K.S.A. 59-3075(b)(4).”
The hearing began as scheduled on August 23, 2010; however, a mistrial was declared after District Judge Edward Bouker realized a conflict with a material witness. The hearing was rescheduled. After 3 days of testimony beginning on November 16, 2010, assigned Senior Judge Jack L. Burr determined by clear and convincing evidence that the Andbe Home was the least restrictive setting that was reasonably available to Bemetta. Elliott filed a timely notice of appeal on Bemetta’s behalf.
The notice of appeal raises two issues:
“I. The district court erroneously determined that Glenn, Bemetta’s guardian, has placed her in tire least restrictive setting available.
“II. The district erroneously denied Mrs. Benham’s motion to discharge Melissa Schoen as her court appointed attorney.”
Standard of Review
On appeal, Elliot argues that the district court “erroneously determined that Glenn, Bernetta’s guardian, has placed her in the least restrictive setting available.”
The parties agree that the district court’s determination of whether a guardian’s placement of its ward is in the least restrictive setting available is a finding of fact.
“An appellate court generally reviews a district court’s findings of fact to determine if the findings are supported by substantial competent evidence and are sufficient to support the district court’s conclusions of law. Substantial competent evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. In evaluating the evidence to support the district court’s factual findings, an appellate court does not weigh conflicting evidence, evaluate witnesses’ credibility, or redetermine questions of fact. A court ordinarily presumes that the district court found all facts necessaiy to support its judgment.” Hodges v. Johnson, 288 Kan. 56, Syl. ¶ 7, 199 P.3d 1251 (2009).
Burden of Proof
K.S.A. 2010 Supp. 59-3075 defines a guardian’s duties, responsibilities, powers, and authorities. In addition to the statutory duties, The Plan provides:
“The guardian will assure that the ward [Bernetta] resides in the least restrictive setting appropriate to the needs of the ward and which is reasonabljy] available. If proper and feasible, the guardian will assist the ward in moving to a less restrictive setting than her present adult care nursing facility, where she can reside with her husband, Wilbur Benham; provided that all the ward’s needs can be met with available, appropriate services. So long as the Ward’s needs are appropriately and sufficiently met in such less restrictive setting, the ward will not be placed in die adult care nursing facility setting without Court authorization after notice to all interested parties, including Wilbur Benham.” (Emphasis added.)
Elliot argues in his appellate brief that Glenn has an affirmative duty to prove that Bernetta is living in the least restrictive setting available. However, during the August 2010 hearing, Elliot of the DRCK stated:
“[T]hat a guardian has the obligation to place die ward in die least restrictive environment. My understanding is tiiat the guardian in this case believes that’s the Andbe Nursing Home. We are challenging that.
“You know, this is an interesting issue because I could not find any specific case law on this burden issue on whether we carry tiiat full burden, or not. I think that, yes, if we’re challenging it, we have that burden, but I also think the guardian lias the burden to show the Court that she has, that this is the least restrictive environment, and I tiiinlc tiiey plan on doing that.”
Then the judge stated, “Well, then, it seems to me that with that admission, the burden is upon you to show the placement chosen by the guardian is inappropriate.” Elliot responded, “I think that’s, that’s right at this point.”
Because Bernetta has challenged Glenn’s decision, she has the burden to prove Glenn’s decision does not conform to the requirements of The Plan and statute for her placement. In other words, a ward has the burden of proof when challenging the guardian’s decision that the ward has been placed in the least restrictive setting appropriate to the needs of the ward which is reasonably available.
Least Restrictive Placement for a Ward
Under K.S.A. 2010 Supp. 59-3075(b)(4), a guardian has the duty and responsibility “to assure that the ward resides in the least restrictive setting appropriate to the needs of the ward and which is reasonably available.” The guardianship statutes do not define the words “least restrictive setting.” In Bernetta’s appellate brief, Elliot cites Colorado, Florida, and New Hampshire statutes that define similar phrases; however, none of the citations deal with a guardianship and conservatorship case. See, e.g., Colo. Rev. Stat. § 27-10.5-102 (24) (2011), that defines least restrictive environment for developmentally disabled individuals.
At the Andbe Home, Bernetta is provided with skilled 24-hour-a-day care and opportunities for socialization. Elliot argues in Bernetta’s appellate brief that a nursing home such as the Andbe Home is “one of the most restrictive settings a person can be placed into.” He cites to section 2d of The Plan where the parties, including Elliot, agreed that Glenn would assist Bemetta in moving to a less restrictive setting so long as the move is proper and feasible and all her needs can be met “with available, appropriate services.”
Following a 3-day bench hearing, the district court found that “the evidence in this case is clear and convincing that the most stable least restrictive setting appropriate to the needs of Mrs. Bernetta Benham and which is reasonably available at this time is in Norton, Kansas at die Andbe Home in which Benham is currently residing.”
The district court made several findings of fact that support its conclusion, including: (1) Bernetta’s health conditions had worsened or remained static, and (2) in her July 2010 medical evaluation, Dr. Maurer stated that Bemetta was not aware of the date or current season, could not recall short lists, did not know the names of her caregivers, and did not remember when she last saw Wilbur. In her report to the district court, Dr. Maurer stated that Bemetta’s “mental status has declined since her initial evaluation upon admission . . . progression of [dementia] is expected, further mental decline is predicted.”
Wilbur claims that he can provide adequate care for Bemetta in their home if he was provided full-time assistance. However, the evidence at the hearing is that Wilbur is not able to physically provide the services necessary to care for Bernetta. Wilbur and Bernetta suggest that she could live with Wilbur if provided support for household chores, laundry, medications, peri care and general nursing. While nurses could provide extended daily care, it would require multiple-in-home programs from various agencies that may not always be available. Dr. Maurer testified that the majority of these services would not be available in Norton. Further, Dr. Maurer explained that Bernetta needs a stable and consistent environment.
Elliot states that there “are appropriate services available to allow Mrs. Benham to move back into the community and live with her husband of 43 years.” He presented evidence in general terms about services that could be provided for Bernetta through federally funded programs if she were to move to a larger city.
Although the parties may not agree on who can best provide the care, Wilbur, Glenn, and the medical professionals agree that Bernetta will continue to require full-time care. At the time of the hearings, Bernetta was suffering from dementia, hypertension, emphysema, and recurring urinary tract infections, while also requiring a special diet. The district court determined that there are no programs outside of the Andbe Home available in Norton County, Kansas. If Bernetta were to move to a larger city, she may be able to obtain 24-hour care with assistance from other agencies and with appropriate federal funding. In considering these other options, Dr. Maurer testified that she has “considered it and felt that no viable alternative has — has been truly presented.”
The Andbe Home provides Bernetta with a stable and consistent environment. Each day Bernetta has skilled professionals assist her with physical therapy. Bernetta has help with selecting her clothing and is provided a healthy diet that is personalized to her specific needs. She is able to participate in organized activities and daily programs that promote socialization. Elliot claims in Bernetta’s appellate brief that she “testified consistently at both hearings . . . that she wanted to live with husband in their own home.” However, when she was asked if there was anything that could be done to improve her living situation, Bernetta replied, “[N]o, they look after me very well.” Dr. Maurer reported that she asked Bernetta if she would like to live anywhere else and she responded, “No, I am happy.”
Based on the evidence in the record on appeal, substantial competent evidence supports the district court’s findings and its conclusions of law. Therefore, we affirm the decision that Bernetta is residing in the least restrictive setting appropriate to her needs which is reasonably available as required by K.S.A. 2010 Supp. 59-3075(b)(4).
Court-Appointed Attorney
On October 26, 2010, Elliot filed a “Motion to Discharge Melissa Schoen as Bernetta Benham’s Court Appointed Attorney.” Elliot argued that because he represents Bernetta, Schoen was im properly being retained as her attorney. At the start of the hearing, the district judge stated:
“The motion, Mr. Elliot, that you filed concerning Ms. Schoen will be denied, and I want to malee clear that if it hasn’t been done in the past, I am doing it now, I am appointing her as a guardian ad litem. I need all the help I can get and so we’ll proceed with Ms. Schoen in that capacity. She’s been in involved from— essentially from tire inception and I would assume may have gained some knowledge that would be beneficial.”
Generally, the district court has the authority to appoint a guardian ad litem in any probate proceeding. See K.S.A. 59-2205. “[A]n attorney may be appointed by the court if requested, in writing, by the ward, conservatee, guardian or conservator, or upon the court’s own motion.” (Emphasis added.) K.S.A. 59-3063(a)(3). The statute gives the court the authority to appoint a guardian ad litem on its own motion. The district court did not err in denying the motion to discharge Schoen.
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Standridge, J.:
Privitera Realty Holdings (Privitera) appeals the Kansas Court of Tax Appeals’ (COTA) decision reinstating the original value thát the Johnson County Appraiser (County) assigned to property that Privitera owns in Overland Park, Kansas, for the tax year 2008. For the reasons stated below, we find substantial evidence supports COTA’s decision.
Facts
The property at issue is a fast-food restaurant built in 1989 and located in front of a community shopping center at the intersection of 119th Street and Metcalf Avenue in Overland Park, a heavy retail intersection. Notably, the restaurant houses three fast-food chains under one roof — Kentucky Fried Chicken, Taco Bell, and Pizza Hut. This “KenTacoHut” is the only one of its kind in Johnson County.
For 2008, the County assigned a value of $1,774,450 to the KenTacoHut for ad valorem tax purposes. Privitera appealed the tax assessment to the small claims and expedited hearings division of COTA. The hearing officer presiding over the matter concluded that Privitera’s recommended value of $1,393,200 better reflected the fair market value of the KenTacoHut compared to the value assessed by the County. Accordingly, the hearing officer reduced the assessment to $1,393,200.
The County appealed the decision of the hearing officer to the regular division of COTA. At the evidentiary hearing before COTA, the County presented the testimony of Linda Clark, a commercial valuation specialist with the County Appraisers office. Clark testified that she had taken numerous courses over the years from the International Association of Assessing Officers, the Appraisal Institute, and the Property Valuation Division (PVD) of the Kansas Department of Revenue. She also stated that she currently held a certified assessment evaluator designation from the International Association of Assessing Officers, a general certified appraisal certificate from the Kansas Real Estate Appraisal Board, that she was a registered mass appraiser with the PVD, and that she was current in her continuing education classes. Based on this education and training, COTA determined Clark was qualified to give an opinion as to the value of the KenTacoHut.
Clark noted that when a taxpayer appeals the assessment of his or her property, she will review the previous work done in making the initial assessment, request further information, and then make a value determination. Clark testified that the County’s original assessment of $1,774,450 was calculated using a cost approach to value within a computer assisted mass appraisal (CAMA) system approved by the PVD director of the Kansas Department of Revenue. The specific cost approach system used in the County’s CAMA system was the Marshall & Swift cost valuation system, a nationally known cost system and one of the most widely used by appraisers. Clark said that the cost parameters used in the Marshall & Swift system to value the KenTacoHut were specific for 2008.
Clark reported that she personally inspected the KenTacoHut on February 11, 2010. She noted the KenTacoHut was located on a “pad site” and that the building, considering its age (built in 1989), was in good condition and well maintained. When she inspected tire property, she determined the County incorrectly had listed the total building area of the KenTacoHut as 6,124 square feet. Instead, the square footage of the restaurant was 6,222. Because the cost approach was used in 2008 to value the KenTacoHut, the increase in square footage resulted in an increase to the estimated value of the restaurant from $1,774,450 to $1,778,660. Clark specifically stated that the increase in the estimated value was solely the result of the discovery of the additional 98 square feet in 2010. She denied doing an entirely new cost approach to estimate the value of the KenTacoHut.
For purposes of the hearing, Clark prepared a 75-page document (introduced into evidence and designated as Exhibit 1), which included the report from the CAMA system assigning a $1,778,600 value to the KenTacoHut for the 2008 tax year. Specifically, the report indicated that it would cost $1,136,250 to replace the KenTacoHut building. A 10 percent “entrepreneurial profit” was added to this cost, resulting in a total replacement cost of $1,249,880. Clark stated that, based on her training and experience, adding a 10 percent entrepreneurial profit to the replacement cost was appropriate.
Once the replacement cost is calculated, Clark said that the age, physical condition, and functional utility of a building are considered to determine the applicable percentage of depreciation for the building. Here, the Marshall & Swift system — based on the building’s quality, type, and age — applied a 38 percent decrease to the replacement cost, resulting in avalué of $774,920. Next, Clark noted that no market adjustment (an adjustment that affects a particular property but cannot be explained in the land value or elsewhere, e.g., “functional obsolescence”) or economic adjustment (an external economic force that is having a positive or negative impact on the property) was made to the value of the KenTacoHut. Clark believed the KenTacoHut did not suffer from functional obsolescence because she could see no justification for changing the use of the property. The property appeared to be viable in its current, operational format. Based on her inspection of the property, she also did not believe an economic adjustment was warranted.
Clark then explained that she also considered the replacement cost for 25,430 square feet of asphalt and 2,220 square feet of concrete surrounding the KenTacoHut in determining the prop erty’s value using the cost approach. Clark accounted for the replacement value of these items (a total of $33,160 after depreciation) and added this amount to the $774,920. Finally, Clark considered the 60,662 square feet of land upon which the KenTacoHut sits, which was valued at $16 per square foot and resulted in a total value of $970,590.
In determining whether $16 per square foot was a reasonable price for the land, Clark said she looked at sales of land she believed were similar based on their size, zoning, sale dates, locations, and whether they were considered “pad sites.” Based on this criteria, Clark chose four land sales between 2006 and 2007 that ranged in sale price between $13 and $24.02 per square foot. The list of comparable land sales was included in Exhibit 1. After looking at these sales, Clark concluded there was sufficient support for a $16 per-square-foot value to the land.
Adding together the cost value of the building, the asphalt, die concrete, and the value of the land, the total value of the KenTacoHut property came to $1,778,660.
In addition to the report from the CAMA system using the Marshall & Swift cost-approach system, Exhibit 1 also included other documentation intended by Clark to support the reasonableness of a $1,778,660 value for the KenTacoHut. First, Clark looked at 2008 values assessed by the County for numerous fast-food restaurants and determined that the value assigned to the KenTacoHut was within the range of these values. The list of fast-food restaurants was included in Exhibit 1.
Second, Clark performed an income approach to estimate the KenTacoHut’s value using the County’s CAMA system and data for restaurant rental, expense, and capitalization rates in 2008. Using this approach, Clark estimated the income value of the KenTacoHut at $2,192,000. Clark calculated this estimate only to provide support for the reasonableness of tire value estimated by using tire cost approach. Clark further noted that the $2,192,000 was not selected as the assessment value because, at the time of the original valuation, the County lacked sufficient income and expense data to perform a rehable income approach using the CAMA system.
Although Clark did not perform a sales-comparison approach to estimate the KenTacoHut’s value, she considered sales of comparable properties to again verify the reasonableness of the County’s assessment. She noted that the County does not have a sales-comparison approach for mass appraisals that is PVD approved. Regardless, Clark understood that under K.S.A. 2011 Supp. 79-503a, she was required to consider sales of comparable properties to determine the validity of the County’s assessment of the KenTacoHut. Clark included a list of these sales in Exhibit 1 so others reading the report could come to their own conclusions regarding the reasonableness of the value assigned to the subject property.
Clark looked at seven sales, four of which were submitted by Privitera. Clark did not consider two of these sales — the sale of a Long John Silver’s for $380,000 and the sale of a Taco Bell for $507,000 — as suitable comparisons because she believed they were not typical “arm’s-length transactions.” Specifically, she noted that the Long John Silver’s sale was a “sale-leaseback transaction” and the sale of the Taco Bell was not an open market sale. Based on her review of the other sales of properties she believed were comparable to the KenTacoHut, she was confident the County’s assessment was reasonable.
Clark said that she believed the cost approach utilized by the County to value the KenTacoHut was the most appropriate because that was the approach the County used to appraise a majority of the fast-food restaurants in 2008. Additionally, Clark said she was familiar with the factors Usted in K.S.A. 2011 Supp. 79-503a to determine the fair market value of real property and that she considered all the factors listed in the statute to determine that the value assigned to the KenTacoHut by the County was appropriate.
Finally, Clark stated that she believed Standard 6 of the Uniform Standards of Professional Appraisal Practice (USPAP), issued by the Appraisal Standards Board, applied to Exhibit 1 and that the exhibit complied with the requirements of Standard 6. Notably, Clark said that when an assessment to an individual property is challenged, she must provide information specifically relating to the property so it can be determined whether the value assigned to the property — through the use of a mass appraisal system — -was reasonable. Clark did not believe Standards 1 and 2 of the USPAP applied to her work product because, in such a situation, she was not performing a complete appraisal of the property at issue.
Privitera did not present any evidence at the hearing before COTA.
After receiving briefs from the parties, COTA issued an order finding that
“the County’s presentation — including its CAMA-generated mass appraisal report, supplemental documents, and testimony from a competent valuation expert — provides substantial competent evidential support for its original 2008 valuation. The Court also finds that the County’s evidence, though far from perfect, meets minimum standards of reliability under Kansas law. Nothing in tire record suggests that the County’s value is premised on an appraisal approach expressly prohibited by USPAP. Nor is there any evidence of USPAP deviations that could be construed as materially detrimental to the County’s overall opinion of value.
“Based on the record taken as a whole — and in view of the failure of proof on the part of [Privitera] — the Court finds in favor of the County.”
Accordingly, COTA reinstated the County’s original value of $1,774,450 for the KenTacoHut for the 2008 tax year. After COTA denied Privitera’s petition for reconsideration, Privitera filed a timely petition for judicial review in this court.
Analysis
Before reaching the substantive challenge to COTA’s valuation of the property, we must address Privitera’s preliminary argument that COTA erred in concluding that Privitera, not the County, bore the burden of proof at trial.
I. Burden of Proof
Privitera’s burden of proof argument requires this court to interpret K.S.A. 2011 Supp. 79-1609. Accordingly, we exercises unlimited review. In re Tax Appeal of Graceland College Center, 40 Kan. App. 2d 665, 668, 195 P.3d 248 (2008), rev. denied 289 Kan. 1278 (2009). To the extent that COTA’s decision regarding which party had the burden of proof at trial resulted from a finding of fact, however, we review that decision to see if it is supported by substantial evidence when viewed in light of the record as a whole. See K.S.A. 2011 Supp. 77-621(c)(7).
K.S.A. 2011 Supp. 79-1609 states in pertinent part:
“Any person aggrieved by any order of the hearing officer or panel may appeal to [COTA] by filing a written notice of appeal.... A county or district appraiser may appeal to [COTA] from any order of the hearing officer or panel. With regard to any matter properly submitted to [COTA] relating to the determination of valuation of residential property or real property used for commercial and industrial purposes for taxation purposes, it shall be the duty of the county appraiser to initiate the production of evidence to demonstrate, by a preponderance of the evidence, the validity and correctness of such determination except that no such duty shall accrue with regard to leased commercial and industrial property unless the property owner has furnished to the county or district appraiser a complete income and expense statement for the property for the three years next preceding the year of appeal. No presumption shall exist in favor of the county appraiser with respect to the validity and correctness of such determination.” (Emphasis added.)
The clear and unambiguous language of the statute indicates that if the property at issue is leased commercial property and the owner failed to furnish “to the county or district appraiser a complete income and expense statement for the property for the three years next preceding the year of appeal,” then the owner bears the burden of proof before COTA to show that the tax assessment for the property was inaccurate. This interpretation is further supported by K.S.A. 2011 Supp. 74-2433f(d), which states that “[f]inal decisions of the small claims and expedited hearings division [of COTA] may be appealed to [COTA]. An appeal of a decision of the small claims and expedited hearings division to [COTA] shall be de novo.” (Emphasis added.) Thus, even if an owner of leased commercial property is successful in challenging the tax assessment before the small claims and expedited hearings division of COTA (as was the case here), the owner will bear the burden on appeal before COTA if the owner failed to provide the county or district appraiser with the information required under K.S.A. 2011 Supp. 79-1609.
Here, there is no dispute that the property at issue constitutes leased, commercial property. Thus, if Privitera wanted to shift the burden of proof to the County, it had the duty to provide the County with “a complete income and expense statement for the property for the three years next preceding the year of appeal.” See K.S.A. 2011 Supp. 79-1609. Although Privitera failed to provide a formal income and expense statement to the County, Privitera did provide the County with a copy of the lease for the KenTacoHut showing the amount of money Privitera received in rent and showing that the tenant was responsible for paying expenses. Privitera argued before COTA that the copy of the lease satisfied the requirement for producing an income and expense statement in order to shift the burden of the proof to the County. COTA disagreed, finding the lease did not constitute an income and expense statement as contemplated by the legislature when drafting K.S.A. 2011 Supp. 79-1609. Thus, COTA held tire evidentiary burden remained on Privitera to show the invalidity of the tax assessment on the KenTacoHut. Despite this conclusion, COTA went on to review the County’s evidence and ultimately determined that it constituted substantial evidence supporting the original assessment of $1,774,450.
In support of its argument regarding burden of proof, Privitera challenges COTA’s finding that the lease did not constitute an income and expense statement as contemplated by the legislature when drafting K.S.A. 2011 Supp. 79-1609. But Privitera has failed to include a copy of the lease in the record on appeal. Thus, we have no way of determining whether COTA was correct when it determined that the lease was insufficient to constitute an income and expense statement. See National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 283, 225 P.3d 707 (2010) (The burden is on the party making a claim to designate facts in the record to support that claim; without such a record, the claim of error fails.). Because Clark testified before COTA that Privitera failed to provide a complete income and expense statement for the KenTacoHut, substantial evidence supports COTA’s decision that the burden of proof remained on Privitera at the hearing. Having resolved the burden of proof issue, we move on to Privitera’s argument alleging COTA’s valuation of $1,774,450 for ad valorem tax purposes was not supported by valid or otherwise substantial evidence.
II. COTA’s Valuation
As noted above, the only evidence presented at the hearing before COTA regarding the value of the KenTacoHut was the testimony of Clark and Exhibit 1, the document she prepared for COTA’s consideration. Nevertheless, Privitera contends COTA should not have relied on this evidence to determine the value of the KenTacoHut because: (1) Clark’s report did not comply with Standards 1 and 2 of the USPAP; (2) her report did not contain a “highest and best use analysis” as required by the USPAP; (3) Clark should have noted in her report that she received assistance from counsel with writing specific sections of her report; (4) Clark should have explained in her report why a 10 percent upward adjustment was added to the replacement cost of the building; (5) Clark’s testimony at trial indicated that she lacked the knowledge to testify competently about a cost approach to value; (6) contrary to Clark’s opinion, the distinct characteristics of the KenTacoHut indicated that the property had functional obsolescence that should have been accounted for when valuing it; (7) Clark’s testimony at trial indicated that she only considered comparable sales which supported tire County’s assessment; and (8) the validity of the income approach to value that Clark included in her report was questionable because it contained information that Clark merely copied from otirer sources.
A. Standard of Review
The Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., defines the scope of judicial review of state agency actions unless the agency is specifically exempted by statute. K.S.A. 2011 Supp. 77-603(a); Cochran v. Kansas Dept. of Agriculture, 291 Kan. 898, 906, 249 P.3d 434 (2011). COTA orders are subject to KJRA review. K.S.A. 2011 Supp. 74-2426(c). Relevant to the facts presented here, the court may grant relief to the party challenging COTA’s decision if such party sustains its burden to prove the invalidity of the agency action in one or more of the following manners: (1) COTA has erroneously interpreted or applied tire law (K.S.A. 2011 Supp. 77-621[c][4]); (2) COTA has engaged in an unlawful procedure or has failed to follow prescribed procedure (K.S.A. 2011 Supp. 77-621[c][5]); (3) COTA’s decision was based on a determination of fact, made or implied, that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole (K.S.A. 2011 Supp. 77-621[c][7], [d]); or (4) COTA’s decision is otherwise unreasonable, arbitrary, or capricious (K.S.A. 2011 Supp. 77-621[c][8]).
“Substantial evidence is that which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. [Citation omitted.]” Griffin v. Suzuki Motor Corp., 280 Kan. 447, 459, 124 P.3d 57 (2005). When determining whether a factual finding is supported by substantial evidence when viewed in the light of the record as a whole,
“the adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record . . . cited by any party that supports such finding, including determinations of veracity by the presiding officer . . . ." K.S.A. 2011 Supp. 77-621(d).
This court, however, does not reweigh the evidence or engage in de novo review. K.S.A. 2011 Supp. 77-621(d). If COTA’s decision is not supported by substantial evidence, it may be viewed as arbitrary or capricious. In re Equalization Proceeding of Amoco Production Co., 33 Kan. App. 2d 329, 333, 102 P.3d 1176 (2004), rev. denied 279 Kan. 1006 (2005).
Finally, to the extent that Privitera’s appeal of COTA’s decision requires statutory interpretation, this court exercises unlimited review. In re Tax Appeal of Graceland College Center, 40 Kan. App. 2d at 668. We note Kansas appellate courts no longer give deference to an agency’s interpretation of a statute and, therefore, have unlimited review. Saylor v. Westar Energy, Inc., 292 Kan. 610, 614, 256 P.3d 828 (2011); In re Tax Exemption Application of Kouri Place, 44 Kan. App. 2d 467, 471, 239 P.3d 96 (2010).
B. Applicable Law
There are several Kansas statutes that explain the process used to calculate property taxes. K.S.A. 79-501 requires that each parcel of real property be appraised for taxation purposes to determine its fair market value. In turn, K.S.A. 2011 Supp. 79-503a defines “fair market value” as “the amount in terms of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion.” The statute also states:
“Sales in and of themselves shall not be the sole criteria of fair market value but shall be used in connection with cost, income and other factors including but not by way of exclusion:
“(a) The proper classification of lands and improvements;
“(b) the size thereof;
“(c) the effect of location on value;
“(d) depreciation, including physical deterioration or functional, economic or social obsolescence;
“(e) cost of reproduction of improvements;
“(f) productivity taking into account all restrictions imposed by tire state or federal government and local governing bodies, including, but not limited to, restrictions on property rented or leased to low income individuals and families as authorized by section 42 of the federal internal revenue code of 1986, as amended;
“(g) earning capacity as indicated by lease price, by capitalization of net income or by absorption or sell-out period;
“(h) rental or reasonable rental values or rental values restricted by the state or federal government or local governing bodies, including, but not limited to, restrictions on property rented or leased to low income individuals and families, as authorized by section 42 of the federal internal revenue code of 1986, as amended;
“(i) sale value on open market with due allowance to abnormal inflationary factors influencing such values;
“(j) restrictions or requirements imposed upon tire use of real estate by the state or federal government or local governing bodies, including zoning and planning boards or commissions, and including, but not limited to, restrictions or requirements imposed upon the use of real estate rented or leased to low income individuals and families, as authorized by section 42 of the federal internal revenue code of 1986, as amended; and
“(k) comparison with values of other property of known or recognized value. The assessment-sales ratio study shall not be used as an appraisal for appraisal purposes.” K.S.A. 2011 Supp. 79-503a.
K.S.A. 2011 Supp. 79-503a concludes with the following:
“The appraisal process utilized in the valuation of all real and tangible personal property for ad valorem tax purposes shall conform to generally accepted appraisal procedures which are adaptable to mass appraisal and consistent with the definition of fair market value unless otherwise specified by law.”
The factors listed in K.S.A. 2011 Supp. 79-503a set forth the three approaches to establishing value: “ ‘the sales approach, the cost approach and the income approach. All appraisers must consider and apply the three approaches to value in order to determine the fair market value of property when data to perform each approach is readily available.’ ” See Wagner v. State, 46 Kan. App. 2d 858, 861-62, 265 P.3d 577 (2011) (quoting from PVD Directive No. 98-033 and noting that directives from the PVD “are considered administrative rules or regulations, which have the force and effect of law”), rev. denied 294 Kan. 948 (2012).
K.S.A. 79-505(a), which gives the PVD the right to adopt appraisal directives, states that appraisals performed in connection with ad valorem taxation in this state must be in writing. K.S.A. 79-505(a)(2). K.S.A. 79-504(b) establishes that appraisals produced by the CAMA system prescribed or approved by the PVD shall be deemed to be written appraisals that fulfill tire statutory requirements. Furthermore, K.S.A. 79-505 and K.S.A. 79-506 require that appraisal practice be governed by the USPAP (1992). Board of Saline County Comm'rs v. Jensen, 32 Kan. App. 2d 730, Syl. ¶ 4, 88 P.3d 242, rev. denied 278 Kan. 843 (2004). The USPAP standards “are embodied in the statutory scheme of valuation, and a failure by [COTA] to adhere to them may constitute a deviation from a prescribed procedure or an error of law.” Jensen, 32 Kan. App. 2d at 735.
The PVD issued Directive No. 92-006 in November 1992, which requires county appraisers to perform all appraisal functions in conformity with Standards 2 and 6 of the USPAP (1992). Standard 2 governs the form and content of an appraisal report that communicates the result of a single real-property appraisal performed under Standard 1. USPAP Standard 2, pp. 15-18 (1992). Standard 1 governs the substantive aspects of developing a competent, single real-property appraisal. USPAP, Standard 1, pp. 9-13 (1992). In comparison, USPAP Standard 6, pp. 29-36 (1992), establishes the guidelines which should be observed when performing and re porting a mass appraisal (ie., “the process of valuing a universe of properties as of a given date utilizing standard methodology, employing common data, and allowing for statistical testing,” USPAP, Definitions, p. 8 [1992]). See In re Tax Appeal of Yellow Freight System, Inc., 36 Kan. App. 2d 210, 214, 137 P.3d 1051, rev. denied 282 Kan. 790 (2006); Haynes v. Hixon, No. 96,096, 2006 WL 3257477, at *3 (Kan. App. 2006) (unpublished opinion), rev. denied 283 Kan. 930 (2007); Att’y Gen. Op. No. 96-71, pp. 5-6. The prefatory comment to Standard 6 recognizes that “[m]ass appraisals are used primarily for purposes of ad valorem taxation,” that they can be “prepared with or without computer assistance and are often developed by teams of people.” USPAP, p. 29 (1992).
The USPAP includes a departure provision. This provision “permits limited exceptions to sections of the [USPAP] that are classified as specific guidelines rather than binding requirements.” US-PAP, Departure, p. 5 (1992). Furthermore, the USPAP includes a jurisdiction exception rule that states: “If any part of these standards is contrary to the law or public policy of any jurisdiction, only that part shall be void and of no force or effect in that jurisdiction.” USPAP, Jurisdiction, p. 6 (1992).
C. Privitera’s Assertions of Error
1. Was Clark’s report invalid because it did not comply with Standards 1 and 2 of the USPAP?
Privitera contends the appraisal method used by Clark to produce her report does not comply with USPAP Standards 1 and 2, which presents the proper procedure for performing and reporting an individual appraisal.
As we noted above, USPAP Standard 1 controls the development of individual appraisals, Standard 2 controls the reporting of individual appraisals, and Standard 6 controls both the development and reporting of mass appraisals. See USPAP, pp. 9, 15, 29; In re Tax Appeal of Yellow Freight System, Inc., 36 Kan. App. 2d at 214. In a May 1996 letter to the Douglas County Appraiser (quoted in Att’y Gen, Op. No. 96-71), the PVD explained the application of Standards 2 and 6 in connection with appraisals completed for ad valorem tax purposes:
“ ‘USPAP Standard 6 covers mass appraisals. Generally speaking, this is the standard that the county appraiser is required to adhere to in doing appraisals for ad valorem tax purposes. USPAP Standard 2, however, covers “single property appraisals.” “Single property appraisals” include those appraisals used to value special purpose properties that do not lend themselves to mass appraisal techniques.
“ ‘USPAP Standard 6 also applies to those properties that have been initially valued through mass appraisal techniques, but whose values have been reexamined as a result of the hearing and appeals process.
“ ‘It has never been the Division’s intention to require the county appraiser to meet both USPAP Standard 2 and 6 on each and eveiy appraisal conducted for ad valorem tax purposes. Either USPAP Standard 6 is applicable (mass appraisals), or USPAP Standard 2 is applicable (single property appraisals), but not both.’ ” Att’y Gen. Op. No. 96-71, pp. 3-4.
In this case, Privitera does not deny the County’s initial valuation was based on the mass appraisal process. Instead, it argues that once Clark examined the property and adjusted the initial valuation, the process was no longer one of a mass appraisal but instead automatically became an appraisal of one individual property. In support of this argument, Privitera relies on the following question and answer in the illustration appended to an advisory opinion promulgated in the 2008-2009 edition of the USPAP, Advisory Opinion 32:
“3. An assessment appeal is in process, and an appraisal of an individual property is being conducted as part of that appeal. Which development standards apply?
“STANDARD 1 . . . would apply because an individual property is being appraised rather than a universe of properties.” USPAP, p. A-114, Illus. 3, (2008-2009 ed.).
We are not persuaded by Privitera’s argument. This is because there is no evidence that Clark utilized any individual site-specific data in compiling her report that was not utilized in the initial mass appraisal process. In evaluating the reasonableness of a $1,778,660 value for the KenTacoHut, the record reflects that Clark reviewed the previous work done in making the initial assessment, personally inspected the property to confirm the accuracy of the data used in the initial assessment (and corrected an error in square footage as a result), and verified the factual basis supporting the $16 per-square-foot value to the land used in the initial assessment.
In addition to the report from the CAMA system using the Marshall & Swift cost-approach system, Clark looked at 2008 values assessed by tire County for numerous fast-food restaurants and determined that the value assigned to the KenTacoHut was within the range of these values. Of course, this type of inquiry is entirely consistent with a mass appraisal approach to assessment. Although the record also reflects that Clark performed an income approach to estimate the KenTacoHut’s value, she utilized the County’s mass appraisal CAMA system for the data regarding the universe of restaurant rental, expense, and capitalization rates in 2008.
Simply put, there is no evidence to suggest that Clark performed a complete, a partial, or a supplemental appraisal for the property at issue here. When a mass appraisal assessment to an individual property is challenged, the County must provide information specifically relating to the property in order to determine whether the value assigned to tire property — through the use of a mass appraisal system — was reasonable. Providing such information does not automatically transform a mass appraisal, which must conform to Standard 6, to an individual appraisal, which must conform to Standards 1 and 2.
2. Were Clark’s report and testimony invalid because her report did not contain a “highest and best use analysis” as required by the USPAPP
Next, Privitera argues that Clark’s report and testimony were not sufficient to establish a value of the KenTacoHut because she did not do a “highest and best use analysis” of the property to determine whether there was actually a market for a building housing diree separate fast-food restaurants. Privitera argues that Standard 6 of the USPAP requires a highest and best use analysis be done in a mass appraisal.
Standard 6-2(h), a specific guideline which an appraiser can depart from, states:
“In developing a mass appraisal, an appraiser must observe the following specific appraisal guidelines:
“(h) in appraising real property, consider the effect on use and value of the following factors: existing land-use regulations, reasonably probable modifications of such regulations, economic supply and demand, the physical adaptability of the property, neighborhood trends, and the highest and best use of the property.” USPAP, pp. 30-31 (1992).
The comment to Standard 6-2(h) states in pertinent part that “[i]n considering highest and best use, an appraiser should develop the concept to the extent required for a proper solution of the appraisal problem.” USPAP, p. 31 (1992).
Standard 6-7(i) states: “Each written report of a mass appraisal for any purpose other than for ad valorem taxation, and, when provided, a written summary report of a mass appraisal for ad valorem taxation must:. . . (i) in the case of real property, discuss how highest and best use was determined.” USPAP, p. 35-36 (1992). The comment to Standard 6-7(i) states that a “mass appraisal summary report should reference case law, statute or public policy that describes highest and best use requirements.” USPAP, p. 36 (1992).
In her report addressing highest and best use, Clark stated: “The highest and best use of a property may change over time if the character of the neighborhood changes creating demand for a different use. As there is no evidence of such a change, the current use is considered the highest and best use.” In support of this statement, Clark cited Board of Douglas County Comm'rs v. Cashatt, 23 Kan. App. 2d 532, 534-36, 545, 933 P.2d 167 (1997), a case where a panel of this court approved of a county taking into consideration the changing nature of property (residential to commercial) surrounding the taxpayer s property (a residence located on 40,627 square feet of land) in order to determine the fair market value of the property for ad valorem tax purposes. Furthermore, Clark noted in her report that she was invoking the USPAP’s departure rule for Standard 6-2(h) as well as the USPAP’s jurisdictional exception rule to 6-7, citing K.S.A. 79-504 in support (stating that “[ajppraisals produced by the [CAMA] system prescribed or approved by the director of property valuation shall be deemed to be written appraisals for the purposes of this act”).
At the hearing, Clark conceded that she did not do a highest and best use analysis because it would be cost prohibitive to attempt to do that type of analysis on each property subject to a mass ap praisal. Clark testified that unless there is a claim from the taxpayer or elsewhere that the use of a property will change at some point in the near future, the County assumes that the present use of the property is the highest and best use. She further stated that she had no reason to believe that the present use of the KenTacoHut was not its highest and best use.
Notably, Clark’s testimony concerning whether the present use of the KenTacoHut was its highest and best use is substantially similar to testimony given by an appraiser in In re Tax Appeal of Yellow Freight System, Inc. In that case, an appraiser testified regarding the value assigned to the taxpayer’s corporate headquarters using a CAMA system. The appraiser testified that “he did not do a highest and best use analysis; however, he testified that ‘the highest and best use is the current use unless we have reason to believe or data to support a difference.’ ” 36 Kan. App. 2d at 217. Furthermore, the appraiser testified that “ ‘[t]here was no reason to believe that its current use wasn’t the highest and best use. There is no market information to indicate otherwise .... [T]here was nothing about the property in its appearance or anything from the owners that would indicate otherwise.’ ” 36 Kan. App. 2d at 217-18. The panel concluded that based on USPAP Standard 6-2(h) and the comment to that standard, the appraiser’s testimony fit within the criteria for determining highest and best use and constituted substantial evidence addressing that issue. 36 Kan. App. 2d at 218-19.
Based on Cashatt and In re Tax Appeal of Yellow Freight System, Inc., we find Clark’s report and testimony sufficiently addressed the issue of highest and best use, and Privitera failed to present any evidence before COTA to suggest otherwise.
3. Was Clark’s report rendered invalid because she failed to note in her report that she received assistance from counsel in writing specific sections of her report?
Privitera asserts that at the hearing Clark said she received assistance from counsel in properly wording some of the items found in her report- — specifically, statutes cited in the sections of the report addressing highest and best use, performance testing and measurements obtained, and certification. Privitera argues that because counsel assisted in preparing the report, “counsel’s name should have been included in the report as one contributing significant assistance.” In support of this contention, Privitera cites USPAP Standard 6-8.
Standard 6-8 states that each written mass appraisal completed “for purposes other than ad valorem taxation” must have a signed certification form which contains several statements that the appraiser endorses to the best of his or her knowledge and belief. One such statement is that “no one provided significant professional assistance to the person signing this report. (If there are exceptions, the name of each individual providing significant professional assistance must be stated.)” USPAP, p. 36 (1992).
Based on the clear language of Standard 6-8, Clark was not required to include counsel’s name within the report as a person contributing significant assistance. Even if she was, we note that, in the certification section of her report, Clark invoked the US-PAP’s jurisdictional exception rule to Standard 6-8 by citing K.S.A. 79-504 and K.S.A. 79-1466 as the statutes controlling the sufficiency of her report.
4. Was Clark’s report rendered invalid because she failed to explain in her report why a 10 percent upward adjustment was added to the replacement cost of the KenTacoHut?
Privitera argues that Clark’s report violated USPAP Standard 6-7 because the report failed to explain why, in employing the cost approach to determine the KenTacoHut’s value, a 10 percent upward adjustment was added to the replacement cost of the building.
During her testimony at trial, Clark explained that when calculating the replacement cost of the KenTacoHut, a 10 percent “entrepreneurial profit” was added to the estimate, resulting in a total replacement cost of $1,249(880. Based on her education and training, Clark said it was appropriate to add a 10 percent entrepreneurial profit when using a cost approach to value.
On cross-examination, Clark conceded that there was no information contained in the report to justify the 10 percent increase. Clark agreed with Privitera’s counsel’s statement that in order for the report not to be misleading, Clark would have to accompany the report and explain why a 10 percent increase was made to the replacement cost of the KenTacoHut. Clark noted, however, that the report documenting how the cost value of the KenTacoHut was calculated came from the CAMA system approved by the PVD and used by the County. Clark stated that the PVD was made aware that the reports generated by the CAMA system lacked information concerning the justification for the 10 percent increase and that subsequent changes had been made to address this issue.
Standard 6-7 lists the information that must be contained in either a written summary report of a mass appraisal for ad valorem taxation or a written report of a mass appraisal for any other purpose. USPAP, p. 34-36 (1992). As already noted, Clark invoked the USPAP’s jurisdictional exception rule to Standard 6-7, citing in support K.S.A. 79-504. Because Clark testified that tire CAMA system used by the County to determine the value of the KenTacoHut was approved by the PVD, the appraisal report generated from the system was sufficient under Kansas law. See In re Tax Appeal of Yellow Freight System, Inc., 36 Kan. App. 2d at 217 (noting CAMA appraisal produced by county and admitted into evidence satisfied the statutory definition of a “written appraisal” under K.S.A. 79-504[b]). Furthermore, any confusion that was created by the lack of information contained in the report concerning the 10 percent increase was alleviated by Clark’s testimony at trial.
5. Did Clark’s testimony at trial indicate that she lacked knowledge to testify competently about the cost approach utilized to value the KenTacoHut?
Privitera asserts Clark was unable to state at trial what the economic life was for the KenTacoHut or the surrounding site improvements (asphalt and concrete). Privitera argues that this lack of knowledge by Clark demonstrates she is incompetent.
Privitera’s argument would have more credence if Clark conducted a single-property appraisal of the KenTacoHut using a cost approach to estimate tire value. If such an approach was used, then Clark would need to know the specific economic life for the build ing and the surrounding site improvements. But Clark did not conduct a single-property appraisal of the KenTacoHut. She verified the accuracy of the KenTacoHut’s tax assessment which resulted from tire County’s CAMA system using a Marshall & Swift cost system. Clark’s testimony and Exhibit 1 clearly indicate that the Marshall & Swift system applies a depreciation percentage to the replacement costs for a building and surrounding site improvements based on their type, quality, and age. Accordingly, because the system is a mass-appraisal system, the percentage of depreciation actually applied to a particular building and surrounding site improvements is an estimate. As indicated by counsel’s questions to Clark on cross-examination, the only way to test the accuracy of the amount of depreciation applied to a particular property using the Marshall & Swift system would be to perform an individual calculation of the property’s economic life. Notably, Privitera did not present any evidence at trial to indicate or suggest that the amount of depreciation that the Marshall & Swift system applied to the KenTacoHut was inaccurate. Thus, we find that Privitera’s argument concerning Clark’s competence is without merit.
6. Did the evidence establish that the KenTacoHut suffered from functional obsolescence that should have been accounted for when determining its value using the cost approachP
Privitera argues Clark’s conclusion that the KenTacoHut did not suffer from functional obsolescence (and, thus, no downward adjustment should be made to its value) was invalid due to the KenTacoHut being the only one of its land in Johnson County and larger than most fast-food restaurants in the county. But Privitera did not present any evidence to COTA to suggest that these facts established that the KenTacoHut suffered from functional obsolescence. The only evidence that COTA had to consider in resolving this issue was Clark’s testimony. At trial, Clark stated that she concluded that the KenTacoHut did not suffer from functional obsolescence because she could not see any justification for changing the use of the property. Specifically, Clark said that the property appeared to be viable in its current, operational format (i.e., three fast-food restaurants in one). Furthermore, Clark said that she could not justify making an adjustment to the KenTacoHut’s value based on its size because there was no objective data available to support such an adjustment. Accordingly, Privitera’s argument concerning functional obsolescence lacks merit.
7. Was Clark’s opinion concerning comparable sales invalid because she allegedly only considered sales which supported the County’s assessment?
Privitera argues that Clark only considered sales of restaurants that supported the value tire County assigned to die KenTacoHut.
As noted above, Clark did not perform a sales-comparison approach to estimate the KenTacoHut’s value. To that end, she testified the County does not have a sales-comparison approach for mass appraisals that is approved by the PVD. But Clark, based on the requirements of K.S.A. 2011 Supp. 79-503a, did consider sales of comparable properties to verify the reasonableness of the County’s assessment of the KenTacoHut. Clark included a list of these sales in Exhibit 1 so others reading the report could come to their own conclusions regarding the reasonableness of the value assigned to the subject property.
Clark looked at seven sales, four of which were submitted by Privitera. Clark did not consider two of these sales — the sale of a Long John Silver’s for $380,000 and the sale of a Taco Bell for $507,000 — as suitable comparisons because she believed they were not typical “arm’s-length transactions.” Specifically, she noted that tire Long John Silver’s sale was a “sale-leaseback transaction” and the sale of the Taco Bell was not an open market sale. Based on her review of the other sales of properties she believed were comparable to the KenTacoHut, she believed that the County’s assessment was reasonable.
Again, Privitera did not present any evidence to indicate that the sales Clark considered were inappropriate or skewed in favor of showing the reasonableness of the County’s assessment of tire KenTacoHut. Accordingly, we are not persuaded by Privitera’s argument on this issue.
8. Was the income approach to value that Clark employed in her report invalid because it contained information that Clark copied from other sources?
Finally, Privitera argues that the income approach that Clark performed using the County’s CAMA system was invalid because Clark merely input general 2008 data from the County for the restaurant industry into the CAMA system (e.g., average income, average expenses, rental rates, vacancy rates, and capitalization rates). But the very definition of the mass appraisal method is “the process of valuing a universe of properties as of a given date utilizing standard methodology, employing common data, and allowing for statistical testing.” USPAP, Definitions, p. 8 (1992). In order to estimate the value of the KenTacoHut for tax year 2008 using an income approach on the CAMA system, Clark necessarily would have to utilize statistical information that the County had regarding the restaurant industry in 2008. Privitera does not explain in its brief how Clark’s decision to utilize this information was wrong or caused her resulting estimate of the KenTacoHut to be inaccurate. Nor did Privitera present any evidence to COTA to show that Clark’s income approach to value estimate was invalid. Privitera’s argument is without merit.
In sum, we have reviewed Clark’s testimony and Exhibit 1 — the only evidence presented to COTA in conjunction with this case— and find substantial evidence supports COTA’s decision to reinstate the County’s original 2008 assessment of $1,774,450 for the KenTacoHut.
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Arnold-Burger, J.:
Master Finance Co. of Texas (Master Finance) and Kim Pollard entered into a payday loan contract. Master Finance loaned Pollard $100 with a 199.91% interest rate. Pollard defaulted on the loan payment; and Master Finance filed a lawsuit in Missouri against Pollard. When Pollard failed to answer or appear, Master Finance was granted a default judgment against Pollard in Missouri, with the postjudgment interest rate set at the contract rate — 199.91%. Later, the Missouri judgment was filed in Kansas as a foreign judgment. Master Finance requested an order for wage garnishment, which was granted. Pollard objected to the wage garnishment. After a hearing, the district court adjusted the postjudgment interest rate to the Kansas statutory interest rate, ordered the parties to enter into a voluntary withholding order, and ordered Master Finance to release the wage garnishment. Master Finance appeals. Finding the district court exceeded its authority and abused its discretion, we reverse its findings and remand with directions to issue the order of garnishment requested by Master Finance.
Factual and Procedural History
On August 30, 2005, Pollard and Master Finance entered into a payday loan contract in Missouri. Under the contract, Master Finance loaned Pollard $100 at an interest rate of 199.91% and a finance charge of $55. Pollard was to repay Master Finance in five monthly installments of $31 beginning the following month. Pollard defaulted on her payments.
Four years later, in 2009, a default judgment was entered against Pollard in Missouri. In the judgment, Master Finance was awarded a principal amount of $1,238.89, $185.83 in attorney fees, $55 in process server fees, $33 in costs, and postjudgment interest at the contract rate of 199.91%.
Over a year later, the Missouri judgment was filed in Kansas as a foreign judgment. Subsequently, an order of garnishment against wages was filed against Pollard. By the time of the garnishment, the amount owing had escalated to almost $5,000. Pollard, who appeared pro se, objected to the wage garnishment order, claiming that she was the head of the household and could not afford the garnishment.
A hearing was held. Pollard indicated that her wages were $13 per hour and she worked a maximum of 35 hours per week. She indicated she was the sole support for her family. Her husband was not working, and she had one young child living at home. Master Finance was receiving, through the garnishment order, 25% of her net income, or roughly $400 per month. The district judge proceeded to inquire about Pollard’s monthly expenses and determined that Pollard’s minimum living expenses were $1,500 to $1,700 per month, which was equivalent to her net monthly income. The court noted that she did not have health insurance because she was not a full-time employee.
The district court judge was clearly frustrated by the unconscionability of a $100 payday loan resulting in Pollard’s garnishment for $5,000. In both his oral pronouncement from tire bench and the written journal entry that followed, he recognized that he was required to give full faith and credit to the Missouri judgment and enforce the contractual interest rate. However, he proceeded to fashion his own remedy. He found that if the judgment was to be collected in Kansas, the Kansas judgment interest rate was to apply from the date of his order forward. Next, he reduced the amount Pollard was required to pay to $75 per paycheck, or roughly 10% of her net income. Finally, he ordered Pollard to sign a voluntary withholding order which reflected a withholding of $75 per pay period from her paycheck. Once she signed the withholding order, Master Finance was ordered to release its garnishment. In addition, the district court judge encouraged Pollard to contact Master Finance after some period of payment and make an offer in compromise. Master Finance filed a timely notice of appeal. Pollard did not file a brief.
Analysis
We begin with a general discussion of garnishments.
Garnishment is a procedure whereby the wages of a person can be seized pursuant to an order of garnishment issued by the district court. K.S.A. 60-729; K.S.A. 61-3502. The procedure for obtaining an order of garnishment is entirely statutory. See LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007).
Anytime after 10 days following the date a judgment is obtained, garnishment may be used as an aid to collection of the judgment. See K.S.A. 60-731(a); K.S.A. 61-3504(1). Accordingly, a garnishment is not considered a cause of action — it is considered an ancillary or auxiliary proceeding. Associated Wholesale Grocers, Inc. v. Americold Corporation, 293 Kan. 633, 646, 270 P.3d 1074 (2011).
Once the judgment debtor receives notice of the garnishment of his or her earnings, he or she has the right to object to the calculation of exempt and nonexempt earnings. K.S.A. 60-735. The exemptions from wage garnishments in Kansas are also set out by statute. As it applies to this case, K.S.A. 60-2310(b) limits wage garnishment to 25% of the individual’s aggregate disposable earnings. Disposable earnings are defined as that part of the earnings that remain after any deductions which are required by law to be withheld. K.S.A. 60-2310(a)(2). There is an additional exemption for periods of sickness of the debtor or a family member that exceed 2 weeks. K.S.A. 60-2310(c). And finally, the limits vary slightly if the garnishment is for a support order such as alimony or child support, which was not the case here. K.S.A. 60-2310(g). Although Missouri provides an exemption for the head of the household, Kansas has no such exemption. See Mo. Rev. Stat. § 513.440 (2000); Dunn v. Bemor Petroleum, 737 S.W.2d 187, 189 (Mo. 1987).
Under K.S.A. 60-735(c), “[i]f a hearing is held, the judgment debtor shall have the burden of proof to show that some or all of the property subject to the garnishment is exempt, and the court shall enter an order determining the exemption and such other order or orders as is appropriate.” See also K.S.A. 61-3508(c) (containing identical provisions under the Code of Civil Procedure for Limited Actions).
With this background in mind, we proceed to the issues raised in this case.
The wage garnishment
Master Finance argues that the district court abused its discretion by altering the wage garnishment. This requires us to review the extent of a judge’s authority under K.S.A. 60-735(c). Interpretation of a statute is a question of law over which appellate courts have unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009).
There is no dispute that Master Finance followed the statutory procedure to garnish Pollard’s wages and that it was limited to 25% of her disposable income. Pollard filled out a request for hearing. In response to why she was disputing the garnishment, she wrote, “I am currently working part-time and I am the head of my household so 25% of my income would be too much from my household income to maintain my living arrangements.” K.S.A. 60-735(c) requires the judgment debtor, in this case Pollard, to bear the burden of showing that some or all of the property subject to the garnishment is exempt. Based on the evidence presented, the court “shall enter an order determining tire exemption and such other order or orders as is appropriate.” K.S.A. 60-735(c). The clear language of the statute limits the hearing to whether the judgment debtor is able to prove the application of an exemption. If an exemption is established, the court would then be required to enter an order or orders adjusting the wage garnishment accordingly. It does not give the court carte blanche to create an exemption that does not exist in the statute.
Pollard failed to allege any exemption recognized under Kansas law, and she likewise failed to present any evidence at the hearing entitling her to an exemption under Kansas law. The district judge was limited to ruling on the existence or nonexistence of an exemption. An abuse of discretion occurs if the discretion is guided by an erroneous legal conclusion or goes outside die framework of proper statutory limitations or legal standards or fails to properly consider factors given by higher courts to guide that discretion. Farrar v. Mobile Oil Corp., 43 Kan. App. 2d 871, 876-77, 234 P.3d 19, rev. denied 291 Kan. 910 (2010). Here, the district judge abused his discretion by essentially creating his own exemption. He compared Pollard’s income and expenses and determined that she could not afford the garnishment of 25% of her disposable income. But the Kansas garnishment statutes do not allow for any consideration of the debtor’s actual expenses. Calculation of the garnishment amount is based solely upon the debtor’s income. Therefore, the district court’s decision fell outside the statutory framework. The result was the quashing of a garnishment that complied with all legal requirements. Likewise, the district judge lacked the statutory authority to order the judgment debtor to complete a “voluntary” withholding order, and he lacked the authority to order Master Finance to release its garnishment and accept less money per Pollard’s pay period than it was entitled to under the law.
Regardless of whether a court agrees with the legislatively enacted statutory garnishment scheme, absent a successful challenge to its constitutionality, the court has the duty to follow the process required by the statute. In this case, we are not presented with a challenge to the validity of the statute, and the statute clearly required Pollard to present evidence sufficient to establish that she was entitled to an exemption under the Kansas garnishment law. She failed to do so; therefore, the garnishment was proper and the district court abused its discretion when it found otherwise.
Application of the postjudgment interest rate from a foreign judgment
When a properly authenticated judgment of a state other than Kansas is offered as evidence in a Kansas court, the Full Faith and Credit Clause of the United States Constitution, Article 4, § 1, gives the foreign judgment the same force and effect in Kansas as it has in the state where the judgment was rendered. Fischer v. Kipp, 177 Kan. 196, 197-98, 277 P.2d 598 (1954). So once a copy of an authenticated judgment from another state is filed with a clerk of the district court, the foreign judgment is thereafter treated as a Kansas judgment and can be executed upon the same. K.S.A. 60- 3002; Padron v. Lopez, 289 Kan. 1089, 1096, 220 P.3d 345 (2009). Whether a judgment is entitled to full faith and credit is a question of law subject to unlimited review. Hankin v. Graphic Technology, Inc., 43 Kan. App. 2d 92, 107, 222 P.3d 523 (2010).
When the parties in tins case entered into a payday loan contract, Pollard agreed to a 199.91% interest rate on the loan. When the Missouri court entered its default judgment against Pollard for failing to appear at the hearing, it ordered the postjudgment interest rate to remain at the contractual rate agreed upon by the parties. There was no dispute that the Missouri judgment was properly filed in Kansas and that the district court was required to honor and enforce the Missouri judgment. The district court so held. Even though the Missouri judgment set the postjudgment interest rate at 199.91%, the district judge altered it to comply with the Kansas statutory rate, which at the time of the hearing, on August 2, 2011, was 4.75%. See K.S.A. 16-204(e)(l) (rate applicable to civil judgments “rendered by courts in this state”). The new rate was to apply from the date of the district court’s order forward. Master Finance contends that this was error and resulted in the district court’s failure to give the Missouri judgment full faith and credit.
There can be little doubt that a 199.91% interest rate on a $100 payday loan would be considered usurious in Kansas, even if agreed to by the parties. See K.S.A. 16a-2-404 (limits the interest rate on payday loans for $500 or less to 15%). But unless the judgment was entered without jurisdiction, and there is no such allegation here, a judgment from a sister state cannot be impeached for irregularities in the proceedings or erroneous rulings, but must be regarded as binding. Padron, 289 Kan. at 1098. In Missouri, the judgment, including the postjudgment interest rate, would be enforceable as entered. See Mo. Rev. Stat. § 408.040 (2000); Ponca Finance Co., Inc. v. Esser, 132 S.W.3d 930, 932 (Mo. App. 2004).
Full faith and credit is not without limitation, however. It “does not mean that States must adopt the practices of other States regarding the time, manner, and mechanisms for enforcing judgments.” Baker v. General Motors Corp., 522 U.S. 222, 235, 118 S. Ct. 657, 139 L. Ed. 2d 580 (1998). “ The local law of the forum determines the methods by which a judgment of another state is enforced.’ ” 522 U.S. at 235 (quoting Restatement [Second] of Conflict of Laws § 99 [1969]). So clearly, Kansas, not Missouri, garnishment procedures apply.
Postjudgment interest is a procedural question and not a substantive question. ARY Jewelers v. Krigel, 277 Kan. 464, 479-80, 85 P.3d 1151 (2004). Thus, using tire conflict of law analysis in ARY Jewelers, when no postjudgment interest has been set forth in the contract or the judgment itself, the law of Kansas applies in determining what the postjudgment interest shall be. But Kansas law states that when a contract provides a specific interest rate, that interest rate continues “until full payment is made, and any judgment rendered on any such contract shall bear the same rate of interest or charges mentioned in the contract, which rate shall be specified in the judgment.” K.S.A. 16-205(a). The “parties can agree upon a different rate of interest from the postjudgment rate fixed by statute.” ARY Jewelers, 277 Kan. at 480. Such an agreement existed here. Accordingly, because the Missouri judgment includes the applicable interest rate in the judgment itself, there is no conflict and the judgment as a whole, including the post-judgment interest rate, must be given full faith and credit.
In his written order the district judge recognized that the court “must enforce the Missouri judgment including the contractual interest rate.” Likewise, from the bench he indicated that “under the full faith and credit, the Court has to honor the judgment that was imposed by another state court, and, as a result, I am required to enforce the judgment.” He concluded, “[I]t is outrageous; however, it’s, most unfortunately for Ms. Pollard, legal.” We agree. The facts of this case ciy out for equitable relief. But any challenge to the Missouri judgment must be raised before the Missouri courts and not in a collection action in this state. We are bound to follow the law of Kansas and the Constitution of the United States and enforce the judgment as it comes to us, without regard to whether it contravenes the public policy of Kansas or shocks our sensibilities. See Estin v. Estin, 334 U.S. 541, 544-46, 68 S. Ct. 1213, 92 L. Ed. 1561 (1948).
Reversed and remanded with directions to issue the order of garnishment as requested by Master Finance. | [
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Allen, J.
The petition filed in the trial court by Parks, as plaintiff, alleges in substance that in April, 1894, he was driving a team of horses hitched to a buggy on the highway near the town of Bellaire ; that he approached the track of the defendant railway company from the south, on a road running at right angles to the railroad track ; that there was then standing and moving over the railway crossing a train of cars attached to a locomotive ; that he stopped at a point about 150 feet south of the crossing and remained there for about five minutes ; that the locomotive was then detached from the train and moved east across the public highway to a point about thirty feet east of it; that while the engine was standing still the plaintiff drove across.the track; that when he had reached a point about forty feet north of the track and while the engine was standing still, and while he was in full view of the engineer and fireman, the engineer, then in the employ of the railway company and there in charge and control of the engine, “then and there needlessly, carelessly and with gross neglect, and with a mis chievous and malicious intent to frighten the team of horses of said plaintiff, did cause the steam whistle of said engine to be suddenly and violently blown with useless, unusual and terrifying noise and screeches,” knowing at the time that the noise would be liable to frighten his team and cause it to run away; that by reason of said misconduct of the engineer and of his gross carelessness he and the servants of the railway company caused plaintiff’s horses to become greatly frightened and unmanageable and to run away and throw the plaintiff out of his buggy causing him serious and permanent injuries. To this petition the Railway Company filed the usual answer in such cases,— a general denial, and alleging contributory negligence on the part of the plaintiff. A reply was filed containing a general denial. After the jury had been impaneled and sworn and a witness produced by the plaintiff the defendant objected to the introduction of any testimony on the ground that the petition did not state facts sufficient to constitute a cause of action. This objection was overruled, and the first error assigned is on this ruling of the court.
The question is raised both on the averments of the petition and on the instructions whether the misconduct charged and proven is the personal misconduct engineer> for which he alone is liable, or is to be attributed to the Railway Company as his master. It is said that the master can only be made to respond for the misconduct of a servant where that misconduct is connected with the transaction of the business of the master, or in furtherance of his interests or purposes ; that when the act is done to gratify the private malice or wanton mischievousness of the servant himself, even though an instrument belonging to the master be used, the latter is not-liable for the wrong done. We shall assume that .the rule contended for by counsel for the Railway Company is the law, yet does it avail the plaintiff in error in this case ? The petition was not attacked by demurrer but only by objection to the introduction of testimony. It is, therefore, to be liberally construed. It charges that the engineer was employed by the defendant, operating its engine; that he negligently and carelessly, with a mischievous and malicious intent to frighten the plaintiff’s team caused the whistle to be suddenly blown. Does this show that the engineer in blowing the whistle performed an act disconnected from the service of the master? He was in charge of his employer’s engine on its road, at his post of duty. Sounding the whistle for the purpose of giving signals and warnings was a part of his duty. It was his duty to give such signals to warn people of approaching danger and to refrain from so sounding it when its only purpose would be to induce danger. The use and control of the whistle was as much within the line of his duty as the use of the levers and valves of the engine. We are unable to make a distinction under such circumstances-which will disconnect the engineer from the service of the master in the performance of this single act of sounding the whistle. While the averments of the petition possibly might have been made somewhat stronger for the purpose of charging the Railway Company, they appear as definite as is usual where a master is charged with liability for the misconduct of a servant. A further criticism of the petition is made on the ground that it fails to show that the horses ran away as a result of the blowing of the whistle. We find the petition sufficient in this respect. Any one reading it would readily understand that blowing the whistle frightened the horses and caused them to run away. Rut assuming that the petition is susceptible of the construction that the engineer acted maliciously in blowing the whistle the testimony wholly fails to sustain any such charge. Taken in its strongest light it merely shows that the whistle was sounded unnecessarily and without regard for the plaintiff’s safety. The evidence of the engineer and fireman tends to show that the engine had started to back across the highway before the plaintiff drove onto the crossing; that the engineer in order to avoid injury to the plaintiff stopped his engine and sounded the whistle. All the evidence shows that after the plaintiff was thrown from his buggy the engineer and fireman went to his assistance. No act or expression is called to our attention indicating any malicious or mischievous purposes in the mind of the engineer. The case, therefore, stood before the jury on proof tending to show negligence and carelessness on the part of the engineer in the discharge of his duties.
Part of the first instruction given to the jury is excerpted by counsel and made the basis of a claim of error. It reads : ■
“If at the time plaintiff entered upon the track of the railroad the engine was standing still, and if defendant’s servants in charge of the engine knew that fact, or if they would have known such fact by the use of ordinary care and prudence, then defendant would be required to use care and prudence, and refrain from making a noise from the blowing of the whistle in a manner calculated to frighten the team driven by plaintiff or cause them to run away ; and if the said defendant’s servants did so cause the whistle to be blown, under such circumstances, while plaintiff was acting prudently in attempting to cross said railroad track, and if such noise, caused by the blowing of the whistle, was the cause of the runaway, producing the injuries complained of, or some of them, then plaintiff would be liable to the extent of the injuries caused by such wrongful conduct on the part of the defendant’s said servants.”
The principal conflict in the testimony was as to the location of the engine at the time the plaintiff crossed the track and whether the engine had been started backward before the whistle was blown, and before' the plaintiff had succeeded in crossing. It was the claim of the plaintiff that he was across the track and out of danger when the whistle was sounded, and that the engine had not then been started. On the other hand the train men testified that the engine started backward before the plaintiff reached the crossing. There was nothing in the testimony indicating any other necessity or excuse for sounding the whistle than that of giving warning to the plaintiff. Under the issues and testimony it was not an assumption of the province of the jury for the court to give this part of the instruction as a distinct proposition, but before the quoted part of the instruction we find this language :
“The defendant had a legal right to use its road, engine and cars upon its track in the usual course of business, or in any other manner,-so far as pertains to the rights of the plaintiff in this case is concerned, provided in doing so they do not negligently, needlessly and wantonly increase the danger to the plaintiff in passing from a publicly traveled highway across its track.”
Immediately preceding the part of the instruction first quoted the following language was used :'
“If the defendant’s servants while said engine was standing still, knew, or would have known by the exercise of reasonable and ordinary care, which would ordinarily have been used by ordinarily prudent men under like circumstances, that the plaintiff was either upon the track of its railway, or just passing off the same, then the defendant had no right to uselessly or needlessly blow the whistle of the engine, or cause any other noise likely to frighten or cause plaintiff’s team to run away.”
Immediately following the first excerpt from the instructions the jury were told that if the plaintiff attempted to cross the track when the engine was moving toward the crossing it would constitute negligence on his part, and if the injury resulted wholly, or partially, by reason of his negligence he could not recover. In the third instruction the jury were pointedly told that the only negligence or fault charged against the defendant was in blowing the whistle, and that their investigation should be exclusively directed to the question whether there was negligence in doing so. There can be no question that it is as much the duty of an engineer to refrain from unnecessary acts calculated to frighten teams near his engine as from other acts tending to injure persons or property. While the law requires a whistle to be used for giving signals and expressly requires that it be blown for road crossings, like all other appliances used in the dangerous business of operating railroads it is to be used with care and regard for the rights of others. Although we are not aware that any case has ever been brought to this court before where a recovery of damages was sought for negligently blowing a whistle, the ground on which liability it claimed, is not essentially different from that on which recoveries were sustained in the cases of Water Co. v. Whiting, 58 Kan. 640 (50 Pac. 877), and Railway Co. v. Smith, ante, p. 80 (52 Pac. 102). In one case the horse was frightened by water rushing from an open hydrant. In the other the plaintiff’s horse was frightened by steam from a cylinder steam cock on a locomotive engine.
Under the testimony in the case the court did not err in refusing to give the second instruction asked by the defendant, which was to the effect that if the engineer maliciously sounded the whistle solely for the purpose of scaring plaintiff’s team the plaintiff could not recover. There is no evidence to sustain a finding of malice on the part of the engineer, therefore no basis for such an instruction. Complaint is also made of the refusal of the court to give various other instructions asked by the defendant. The instructions given fairly covered' the whole case, and included in' substance so much of the instructions asked as were correct statements of the law.
. No error being found on the record, the judgment is affirmed. | [
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Johnston, J.
This was a prosecution of Fatty Oswald and Frank Kepping for violations of the law relating to gambling. The information contained three counts, on the first and second of which the defendants were convicted, and upon the third count there' was an acquittal.
In. substance, the first count charged that the defendants set up and kept, in Reno county, a gambling device composed of dice and the throwing thereof, adapted, devised and designed for the purpose of playing games of chance commonly called "craps,” for money and property, and that they induced and permitted persons to bet money, and play with and upon this gambling device the game of "craps,” against the defendants ; and that through this gambling device, money and property were lost and won by chance. In the second count it was alleged, among other things, that the defendants set up and kept a place, on the second floor of a building situated on lot 35 North Main Street, in the City of Hutchinson, Reno County, as a common gaming room, a place to which persons ‘ ‘ were permitted by the defendants to and were accustomed to, and did resort for the purpose of gambling, and to play and bet at and upon a certain game of cards, a gambling device commonly called ‘poker,’ and at and upon a certain gambling device commonly called ‘craps,’” as well as other games of chance, with cards and dice, for money and property; and that "money and property was then and there upon said games of chance won and lost.”
An attack is made upon the first count of the information, and it is contended that it is insufficient in that it does not particularly describe the place in which the gambling device was set up and kept and the games played. In the same connection it is urged that it states two separate offenses and is therefore bad for duplicity.
The objection that the place is not particularly described is not well taken. The statute defining the offense charged in the first count does not make the keeping of the place an ingredient, and therefore it is sufficient to charge that it is committed in the county and state. Keith v. The State, 90 Ind. 89; 1 Bishop’s New Criminal Procedure, § 372. Laws of 1895, ch. 151, § 1. The keeping of a place is made an ingredient of one of the offenses prohibited by the statute, and there a particular description is necessary. The second count of the information, based on that provision, definitely describes the place, and is therefore not open to such an objection. Neither can it be held that two offenses are charged in the first count. The setting up and keeping of a gambling device and enticing and permitting persons to gamble therewith, when charged to have been perpetrated by the same persons at the same time, constitute a single offense, for which but one penalty can be inflicted. Hinkle v. Commonwealth, 4 Dana (Ky.) 518; 2 Bishop’s Criminal Procedure, § 489. The same rule applies to the averments in the second count of the information.
The claim that no offense was charged or shown to have been committed cannot be sustained. It is argued that one who had or sold dice would not be guilty of setting up or keeping a gambling device within the meaning of section 1, chapter 151, Laws of 1895 (Gen. Stat. 1897, ch. 100, § 256). While dice may be used for purposes other than gambling, they are adapted, and have always been largely used, for gaming or for determining by chance. The mere ownership and possession of a device practically adapted to gaming does not constitute an offense under the statute, but the setting up or keeping of such a gambling device is the element of criminality. The information charged the defendants with the throwing of dice, and this would seem to be fairly included in the matter of setting up or keeping to which the statute refers. We think the correct view of the offense charged in the first count was taken by the trial court. It instructed the jury that it was essential to show “that the defendants set up or kept a gambling device- composed of dice and the throwing thereof, and that such gambling device was adapted, devised and designed for the purpose of playing a game of chance for money or property, and that it was so used.” It is true, as contended, that dice and the throwing thereof in gaming, is not specifically mentioned in the statute as a gambling device ; but it is manifest from the language employed that the Legislature intended to prohibit the use of all gambling devices and gaming by which money or property is lost or won. It appears that the defendants furnished the dice, chips, and other facilities for gaming, and witnesses state that the defendants “banked the game.” There is testimony that they sold chips, and that when the players lost they lost to the defendants, and that when they won they won from the defendants. The witnesses stated that they played against the defendants ; and the testimony shows that considerable money was won and lost on the games of “craps” which were set up and managed by the defendants. We think there is abundant testimony to sustain the convictions.
It is contended that there was a variance between the description of the place in the second count of the information and the proof as to the place kept by the defendants. Some spoke of the place as Beem’s Drug-store and others as the store of the Midland Drug Company ; but the testimony shows beyond any doubt that all the winesses referred to the same place, and that it was the place described in the information.
Objections were made to rulings upon questions of testimony, but we find nothing substantial in them, nor in the questions raised upon the instructions given to the jury. We think the court fully and fairly submitted the case to the jury, and that there is no cause to complain of the instractions.
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Doster, C. J.
The Sedgwick Milling and Elevator Company and the Newton Milling and Elevator Company were corporations. B. Warkentin was a stockholder in both of them. The first-named company was indebted to the one last named in the sum of $2480, to recover which suit was brought and judgment rendered in February, 1895. Upon the recovery of judgment execution thereon was issued and returned unsatisfied. The judgment creditor thereupon instituted proceedings under the statute to secure an order for the issuance of execution against Warkentin for the payment of a balance due upon his stock subscription to the Sedgwick Company and his statutory liability in addition. Upon the hearing of the motion for execution the court made the following order :
“It is therefore considered, ordered and adjudged by the court here that the said Newton Milling and Elevator Company have judgment lien against B. Warkentin for said sum of $2480, and interest at ten per cent. That said B. Warkentin pay into this court the unpaid balance of his said stock, to wit: The sum of $800 to be applied to the satisfaction of the judgment of the plaintiff herein [Newton Milling and Elevator Company] and it is further ordered by the court that the said B. Warkentin pay into this court for the purpose of the satisfaction of the judgment the further sum of $1680, together with a sufficient amount in addition thereto to pay the costs of this action and interest on said judgment up to the time said money shall be paid at the rate of ten per cent.”
This order was complied with, the payment was made by Warkentin and the amount applied upon the judgment creditor’s claim. Several months after-wards the plaintiff in error also obtained judgment against the Sedgwick Company. Execution was is sued upon this judgment and was levied upon a number of small articles of property belonging to the judgment debtor, no one of them, however, possessing any considerable value. Upon the execution sale they realized in the aggregate forty dollars. The execution as to the remainder of the judgment was returned unsatisfied. The plaintiff in error thereupon also instituted proceedings against Warkentin for leave to issue execution against him in respect of his liability as a stockholder; in the Sedgwick Company.
These proceedings were resisted upon the ground that he had previously discharged his stockholder’s liability in the case brought against him by the Newton Company. To this it was replied that the proceedings in that case constituted no defense in this o.ne, because, first, the sheriff’s return of execution nulla bona in the first case was false, there being at that time at least forty dollars worth of property belonging to the execution debtor, as afterwards shown by the levy and sale of that amount in the second case ; and second, that the proceedings in the' case of the Newton Company against Warkentin lacked conformity to the statutory requirements, in that a judgment for money was rendered instead of an order giving leave to issue execution. The judgment of the court below was in favor of Warkentin, and from it the Sedgwick City Bank prosecutes error to this court.
In Hoyt v. Bunker (50 Kan. 574, 32 Pac. 126), it was held that as between two judgment creditors of an insolvent corporation, each of whom was pursuing a stockholder in respect of his statutory liability, the one who fully complied with the statutory requirements as to creditors obtaining leave to issue execution would be preferred, as against the other who substantially departed from the forms of the law in prosecuting his claim. This, however, is not such a case as that one. This is not a contest between rival judgment creditors each pursuing a common debtor. It is an effort by one judgment creditor to compel payment from the stockholder a second time, upon the ground that the other judgment creditor did not comply with the statutory forms in securing payment of his debt. There is such substantial difference between the two cases as to prevent the one from being a guide in the determination of the other.
In the case of Baines v. Babcock (95 Cal. 582, 27 Pac. 674) , it was held:
“ The return of the execution issued upon the judgment as unsatisfied is conclusive, in the equitable action against the stockholders, that the creditor has exhausted his legal remedy upon the judgment; and evidence offered by the defendants for the purpose of showing that the corporation was the owner and in the possession of a large amount of personal property, which might have been levied upon, is properly rejected by the trial court.”
In the case of Munger v. Jacobson (99 Ill. 849), it was held that where it was known as a fact that the assets of the insolvent corporation were not sufficient to discharge the claims of a judgment creditor, proceedings under the statute might be instituted by him without the formality of first issuing an execution and procuring its return nulla bona. Without determining the soundness of either of these decisions as general legal principles, or their applicability as abstract legal propositions to the facts of cases generally, we nevertheless deem them applicable to the facts of the case in hand. No fraudulent conspiracy between Warkentin and the Newton Company was shown. It was not shown that the stockholder for any fraudulent purpose procured a false return of execution, nor the departure by the Newton Company from the statutory forms in the prosecution of its case. Attention, how ever, is called to the fact that he was not only a stockholder in both of the milling companies, but was likewise a director in both, and' also vice-president of the Sedgwick Company and general manager of - the Newton Company,'and that by accepting service for the first-named company in the suit against it by the other and by stipulating for an early hearing he materially expedited it in the final collection of its claim, but that his course in such matter was fraudulent in fact is not claimed by counsel for plaintiff in error.
In view of the fiduciary relationship of Warkentin to the two Companies counsel for plaintiff in error cite the familiar doctrine that officers common to two corporations may not act in the interest of one as against the other. This doctrine has no applicability. Warkentin did nothing for his own company to the prejudice of the other. What he did was to the prejudice of some of the creditors of the Sedgwick Company, but not to the prejudice of the Company itself. He simply used his position as an officer of that Company to secure an advantage to another Company of which he was also an officer, not as against the one Company but as against some of its creditors. It could not be material to the Sedgwick Company that Warkentin paid the amount of his liability as a stockholder to one creditor or another. He, as a debtor, chose to pay one as against others and to that end used his power as an officer. In such case he exercised nothing but his undoubted right to prefer one creditor to the exclusion of others. No argument is made to us that the law may not permit preferences resulting in final benefit to the debtor, such, as in this case, the enhancement of the value of stock owned in a preferred creditor corporation. No argument is made to us that such inferences are invalid as upon a secret trust for the debtor. We have not therefore chosen to import the question into the case, but, as counsel also seem to have done, have viewed the Newton Company in its capacity as a corporate entity, and not Warkentin as an ultimate beneficiary of the act of preference.
There being no fraud in the conduct of Warkentin, the conclusive answer to the complaint of plaintiff in error is the fact that the stockholder voluntarily paid his liability under the statute. He did not need to await the judgment against his company nor the return of execution against it. He did not need to inquire as to the extent to which the small and almost valueless articles belonging to his company could be used towards the satisfaction of the claims of its creditors. It was insolvent, and in such case a stockholder may discharge his liability by voluntary payment without awaiting the institution of proceedings against him.
“It is a defense to the stockholder to prove that his full statutory liability has already been paid by him. A stockholder who has voluntarily paid corporate debts to the full extent of his corporate liability is entitled to set up that fact, and when such payment was hone fide it is a bar to an action to collect any further amount.” Cook on Stocks and Stockholders, § 225b.
The judgment of the court below is affirmed. | [
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Johnston, J.
This was an action by W. ,M. Mills against the city of Osawatomie to recover on a contract for the lighting of that city. The contract was made, on March 14, 1892, between C. M. Race and the City, by which Race was to erect and maintain an electric-light plant of a certain kind and furnish to the City, for eight years, fifteen arc lights at a stipulated rate ; the payments to be made monthly. In pursuance of the contract, the City enacted an ordinance confirming the contract and granting Race a franchise for eight years ; authorizing him ‘ ‘ to construct, reconstruct, maintain, repair, and operate” an electric-light plant suitable ' for the production of electricity for lighting the streets, halls, churches, hotels, and private houses, and all other places where light might be used in said city. To accom plish this purpose, the .use of the streets, alleys, and public grounds was granted to Race for a period of eight years, and the maximum rates to be charged for light furnished private parties were prescribed. It was provided that work upon the plant should be commenced within thirty days and that it should be complete and in operation within ninety days. The plant was constructed and in operation within the time provided for in the ordinance and contract, and was in operation by Race, and his successors and assigns, until February 8, 1893, when the plaintiff purchased and obtained a transfer of the same. After he became the owner thereof he continued to operate it the same as before ; and at the request of the City provided and furnished two more arc streetlights, making seventeen in all, and all these lights so furnished were paid for by the City until December 11, 1894. On that day, without any fault or negligence on the part of the plaintiff or his employees, the power-house of the electric-light plant and all the machinery therein, were totally destroyed by fire, except that some of the principal parts of the machinery was afterward found to be suitable for repairs. After the fire, and until'April 11, 1895, the plaintiff was in correspondence with manufacturers of electric-light "plants to learn whether or not he would and could rebuild, and to ascertain whether the injured machinery could be repaired, and used in rebuilding. In February, 1895, he determined to rebuild the plant; and in April shipped his damaged machinery to Kansas City, Missouri, for inspection, and in order that lie might determine whether it could be used again or whether it would be necessary to purchase new machinery. In that month, and after he had shipped the machinery to Kansas City, a committee of the city council called on him to inquire whether or not it was his intention to rebuild the plant; and he informed them -that he did intend to rebuild, and that he was already making preparations therefor. This information the committee reported to the city council. He proceeded with the rebuilding of the plant,aDd by August 1, 1895, it was so far completed as to be ready to be tested, and on August 9, 1895, it was found to be fully completed and ready for use. On June 13, 1895, the mayor and council passed an ordinance purporting to repeal the ordinance granting the franchise, and on August 2, 1895, they caused to be served on the plaintiff a notice of the attempted repeal of the ordinance, and further that the City considered the contract to be canceled. From the time of the inquiry and report by the committee of the city council, in April, 1895, until the completion and rebuilding of the plant, in August, 1895, the City and its officers had full knowledge of the fact that the plaintiff was rebuilding the plant and preparing to furnish light to the City under the contract; but no notice was given of an attempt to cancel the contract or of a refusal to pay for the lights, until August 2, 1895. Since the rebuilding of the plant the plaintiff has furnished the City seventeen arc street lights, as provided in the contract and ordinance, continuously, without interruption, since August 9, 1895, and has presented bills therefor to the city council from month to month, in accordance with the contract; but these have been rejected by the council, and the City has never paid anything thereon.
The District Court held that the legal rights of the plaintiff under the contract and ordinance'were not forfeited or relinquished by the destruction of the building and machinery, nor by the delay in rebuilding and putting the same in operation ; and further held that the action of the City in attempting to re peal the franchise ordinance and the giving of the notice of August 2, 1895, did not cancel the contract or affect the plaintiff’s legal rights. Judgment was accordingly given for the plaintiff, and the case was taken on error to the Court of Appeals where that judgment was reversed. 45 Pac. 937.
There are two good reasons why the judgment of the trial court must be upheld. The contract could not be terminated or set aside at the will of the City. It was partly performed, and required continuous acts and services, from day to day for a period of eight years, for which monthly payments were to be made. The contract was severable in its nature and objects ; and while a par^ial default might give a right to damages, it did not necessarily entitle the City to a rescission of the whole contract. On the faith of the contract a large expenditure was made for complicated machinery, which was liable to be injured or broken by use. That there might be interruptions of the plant and that repairs might become necessary, was evidently within the contemplation of the parties, as the ordinance provides for the repair and reconstruction of the appliances and machinery. All know that there are frequent interruptions in the running of such machinery, and it will hardly be contended that an interruption of a day or two would work a forfeiture of the franchise and of the rights of the plaintiff under the contract. If there was an unreasonable delay in rebuilding the plant, or an unjustifiable failure to perform, a rescission of the contract might be had, but, upon the testimony, the court has in effect found that the plaintiff’s delay in rebuilding was reasonable, and that the right to rescind was not exercised by the defendant within a reasonable time. The disabling of the plant, as we have seen, was not due to the fault or negligence of the plaintiff. The City, instead of complaining of delay or giving notice of a purpose to cancel the contract, sent an official committee, who learned from the plaintiff that he had already begun to rebuild and repair the plant in order that he might comply with the terms of the contract. This official information was communicated to the city council, and yet no notice of a purpose to cancel the contract was given until the plant had been rebuilt. It is true that an ordinance was passed which attempted to repeal the franchise ordinance, but the City could not relieve itself from the obligations of the contract in this way. The right to terminate the contract in this way was not reserved to the City in the contract. This question was before the court in City of Winfield v. Water Company (51 Kan. 70, 32 Pac. 663), where it was said : “ We do not think a repeal of the ordinance could have the effect to terminate the contract, because it is seldom possible for one party by its own action to relieve itself from liability under a contract mutually entered into, where no right to do so is reserved in the contract itself.” Under the circumstances, the City was not entitled to renounce the entire contract, but had a right to any damages sustained by reason of non-performance.
Again, if the delay of the plaintiff was unreasonable and his failure to perform unjustifiable, so that the City had a right to rescind, it was essential to tlie exercise oi that right ° that it should have taken prompt and reasonable action on the discovery of the breach. The city authorities inquired, and learned that it was the plaintiff’s purpose to rebuild the plant and to carry out the contract. They allowed him to proceed with the reconstruction of the plant without objection or any intimation that advantage would be taken of the temporary default. Instead of claiming a right to rescind, they remained quiet, and permitted him to expend a large amount of money with the view of carrying out the contract. The rebuilding of' the plant, as they well knew, was upon the basis of a subsisting contract, and their conduct would necessarily indicate to the plaintiff that they regarded and. treated the contract as a subsisting one. The plant was of little value or use except to furnish light to the City, and the plaintiff would necessarily lose largely if the City were permitted to sit quiet while the reconstruction was in progress and then repudiate the contract after the expenditure was made. If a party has a right to rescind such a contract, he must exercise the right within a reasonable time, and not wait until a rescission will work a great injury to the opposite party. If he deals with the other party, and permits large expenditures to be' made, on the theory that there is a subsisting con- . , . ., . „ . tract, he waives the right of rescission-. Unreasonable delay on the part of him to whom the right to rescind belongs is generally deemed to .be a waiver thereof.
The judgment of the Court of Appeals will be reversed, and the judgment of the District Court affirmed. | [
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Doster, C. J.
The plaintiff in error"is the executor of the last will of Parthenia J. Keith, deceased. The estate in the hands of the executor consisted of money exclusively. Of this, the husband of the deceased, one Fordyce M. Keith, was entitled under the Statute to one-half. He assigned his distributive portion to one Uri S. Keith, who in turn assigned it to the defendant in error, W. W. Guthrie. At the time these assignments were made, the assignor, Fordyce M. Keith, was indebted to the plaintiff in error; not, however, as executor, but in his own right. The defendant in error, W. W. Guthrie, as assignee of For dyce M. Keith, applied to the probate court for an order upon the plaintiff in error as executor to pay to him the distributive share of said Keith.
The plaintiff in error resisted the application, upon the ground that Fordyce M. Keith was indebted to him, and that, under the provisions- of section 100 of the Civil Code, he was entitled to set off the indebtedness due him against the distributive share of said Keith, notwithstanding the assignment to the defendant in error. The probate court ruled otherwise, and ordered payment made to the defendant in error. No appeal was taken from this order. Instead of appealing, the plaintiff in error brought proceedings in the District Court to restrain the defendant in error from enforcing the order of payment, and for an order decreeing the offset or compensation of the claims of himself and Keith. A permanent injunction was refused, and the temporary injunction granted at the institution of the proceeding was dissolved. The plaintiff brings the case to this court. It can be shortly disposed of.
The probate court is a court of exclusive jurisdiction over the distribution of the estates of deceased persons, subject to appeal to the district court. Its orders made in the exercise of its jurisdiction cannot be collaterally attacked and their effect frustrated by proceedings in other courts. Even if the district court was a court of concurrent jurisdiction, the injunction proceeding brought by plaintiff in error would not lie; because it is a general principle that, where two courts have equal jurisdiction over a subject-matter of dispute and the parties to it, the one which first obtains jurisdiction is entitled to continue in its exercise to the end. While probate courts are in a sense courts of inferior jurisdiction, they are not inferior in the sense that the superior courts will ignore their judgments and orders, or undertake their correction otherwise than upon appeal or by other modes provided by statute. Woerner on Administration, vol. 1, § 145. The principle involved in this case is the same as that which was applied in Proctor v. Dicklow, 57 Kan. 119, 45 Pac. 86. In that case it was said:
“In this state probate courts are given complete jurisdiction of all matters connected with the settlement of the estates of deceased persons, and specific authority is conferred upon them to settle the accounts of administrators and to order the distribution of estates. Provision is also made for taking an appeal from an order of the court making distribution of an estate. The court having jurisdiction to make distribution of an estate, it follows as a necessary incident to the jurisdiction that it can determine who is entitled to the funds, and all questions necessary to a proper distribution of the estate. The jurisdiction being ample, it must be held that Joseph Dicklow has had his day in court, and that the adjudication there made is binding upon him as against a collateral attack.”
The judgment of the court below is affirmed. | [
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Per. Curiam.
We think the main facts in the case are fairly stated by the learned trial judge in the foregoing opinion, and that the law was correctly applied.
The sufficiency of the testimony to sustain the findings of fact made by the trial court is challenged. The testimony was voluminous and largely oral, and we think it fairly sustains the material findings made by the court. The rule here is that, “ where there is some evidence fairly supporting all the material conclusions of fact, and the motion for a new trial has been overruled, such conclusions will not be disturbed by the Supreme Court, alohough apparently against the weight of evidence.” Cheney v.Hóvey, 56 Kan. 637, 44 Pac. 605.
After a careful examination of the record and of the various points made by the plaintiff in error, we are satisfied that a correct and just result was reached; and therefore the j udgment of the District Court will be affirmed. | [
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Johnston, J.
J. F. McMullen was elected secretary of the Winfield Building and Loan Association, and for the faithful performance of his duties he executed a bond in the sum of two thousand dollars, which was signed by J. C. McMullen as surety. It was claimed that the secretary misappropriated $2,201.75 of the' money of the Association, and an action was commenced on the bond. Among other defenses alleged, J. C. McMullen, the surety, denied the execution of the bond; and, upon testimony offered, the jury in answer to a special question found that he did not execute it, and a general verdict was returned and judgment rendered in his favor. Afterward, the Association filed its petition, under the statute, asking the court to set aside the verdict and judgment on the ground of newly-discovered evidence. The bond had been lost and was therefore not produced at the trial. It was afterward found, and it constituted the newly-discovered evidence upon which a new trial was asked. On the application, testimony was offered as to the loss of the bond and the diligence exercised to secure it before the trial was had. After a full hearing, the District Court granted a new trial and set aside the verdict and judgment theretofore rendered. This order was reversed by the Court of Appeals (46 Pac. 410), and its ruling is here for review.
The Court of Appeals held that the testimony was newly-discovered evidence, that it was material, and that due diligence had been used to obtain it, but that it was cumulative in character; and on this ground the reversal was based.
That the bond was newly-discovered evidence is clear. It was lost and is found. It was very material, from the fact that its execution was denied. When produced, and submitted to the inspection of the jury, they could determine for themselves, from it and from the testimony offered in connection with it, as to the genuineness of the defendant’s signature thereon. Whether the surety signed the bond was the principal fact to be investigated ; and when the jury found that he did not sign it, they were not required, under the instructions of the court, to pursue their investigations further, nor to determine anything as to the other defenses which were set up. It was therefore a controlling issue in the case ; and with respect to it, the new testimony was of the utjnost importance. The District Court and the Court of Appeals therefore correctly ruled that the evidence was newly discovered, that it was material, and further that due diligence had been used to obtain and produce it at the trial. Was it cumulative, and did the trial court err in granting a new trial?
The general rule is that newly-discovered evidence which is merely cumulative is not sufficient ground for a'new trial; but we are clearly of the opinion that the proposed testimony cannot be re-garded as cumulative merely. “Cumulative evidence is evidence of the same kind to the same point.” 1 Greenleaf on Evidence, § 2. The fact that the testimony may tend to prove the same issue upon which proof was offered on the trial, is not enough to make it cumulative ; and whether or not it is cumulative is to be determined from its kind and character, rather than from its effect. On the trial, testimony was offered that a bond was executed, and that one of .the signatures thereon was that of the surety. This was merely the opinion of experts, which, in character, is distinctly different from the instrument itself upon which the action was brought. Instead of taking the judgment or relying on the opinion of others, the jury can inspect the bond, and, from the inspection and by comparison of the signatures thereon with other signatures admitted or proved to be genuine, determine for themselves the point in controversy. It is a very material item of evidence, on the turning-point in the case, wholly dissimilar in character from that produced on the trial; and therefore cannot be classed as cumulative. The State v. Tyson, 56 Kan. 686, 44 Pac. 609; Cairns v. Keith, 50 Minn. 32; Knowles v. Northrop, 4 Atl. 269; Protection Life Ins. Co. v. Dill, 91 Ill. 174; Wilday v. McConnell, 63 Ill. 278; Guyot v. Butts, 4 Wend. 581; Platt v. Munroe, 34 Barb. 291; Wayt v. B. C. R. & N. R. Co., 45 Ia. 218.
The ruling of the District Court afforded the parties another opportunity for a fair and impartial trial, wherein all the material testimony might be produced and the truth ascertained. The court was invested with considerable discretion in the matter, and a reviewing court is slow to reverse an order which grants a new trial. And so it has been held that a much stronger case for reversal must be made where the new trial is granted than where it is refused. City of Sedan v. Church, 29 Kan. 190; Sanders v. Wakefield, 41 Kan. 11, 20 Pac. 518.
The judgment of the Court of Appeals will be reversed and the judgment of the District Court will be affirmed. | [
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