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Doster, C. J.
The history of this case as shown by the record before us, and known to us through the record of other phases of it is as follows :
In May, 1885, the plaintiff in error recovered a judgment against the defendant in error for damages for wrongfully causing the death of her husband. On the trial the defendant offered evidence tending to prove that he had effected a settlement of the case with the plaintiff and had secured from her an agreement of dismissal. This evidence was rejected for the reason, as we assume, that no pleadings appropriate to the issue thus raised had been filed. Upon the rendition of judgment against him, the defendant moved for a new trial upon the ground,'among other things, that he had effected a settlement of the case, and had secured from the plaintiff an agreement of dismissal which she had violated by forcing the action to trial. This motion was overruled, and the defendant made and procured a settlement of the case for this court. This, however, was never filed.
Subsecjuently the defendant instituted proceedings under section 568 of the Civil Code, being section 601 of the Code as revised and contained in the General Statutes of 1897, to vacate the judgment which had been rendered against him. Under these provisions and in conformity to the practice in such cases, the judgment was temporarily vacated to allow the defendant to show why it should be finally set aside. From the order of temporary vacation made upon this interlocutory proceeding, the plaintiff prosecuted error to this court which held that the order of vacation was not final in its nature, and therefore error would not lie therefrom. List v. Jockheck, 45 Kan. 349, 748; 27 Pac. 184. After.the temporary vacation of the judgment, the defendant filed a supplemental answer alleging the previous settlement of the case, the agreement of .dismissal entered into by plaintiff, and her refusal to abide by its terms. To this answer the plaintiff filed ' a reply admitting the execution of the papers in settlement and dismissal of the case, and alleging that the same were procured from her by the fraud and deception of the defendant, and also pleading the former trial and proceedings in bar. Upon the issues arising upon this supplemental answer and the reply to it, the case was tried to a jury which returned a general verdict and special findings of fact in defendant’s favor. The case has been again brought to this court upon claims of error occuring upon the last mentioned trial. The principal of these claims are as follows : First, the court wrongly imposed upon the plaintiff the burden of proof, by requiring her to establish the allegations of fraud contained in her reply, and also an allegation in the reply of the agency for the defendant of a certain person who induced her to make the settlement. Second, error in holding that the defendant, having accepted the benefits of the efforts of this claimed agent, was not, because thereof, estopped to deny the agency. Third, in the rejection of certain offered testimony. Fourth, the admission in evidence of the agreement of settlement and dismissal. Fifth, refusal to give certain instructions asked by plaintiff, and the giving of certain other instructions. Sixth, in overruling plaintiff’s motion for judgment on the pleadings. Seventh, in rejecting plaintiff’s evidence of former adjudi.cation. Eighth, in overruling plaintiffs motion for new trial. Some of these claims of error are argued under sub-heads and minor divisions. We have given careful attention to all of them. None of them are tenable. The last two only need be specially noticed.
It is urged that the record shows a trial, verdict and judgment for plaintiff, motion for new trial, the overruling of the same, and the making by defendant of a case for this court, and that many years afterward the defendant, without any showing of cause filed a supplemental answer and brought on for trial the issue of the making of an agreement for the settlement and dismissal of the case, an issue’which had been litigated and determined on the motion for new trial; that the ruling upon such motion for new trial was res judicata and could not again be made a subject of controversy, and that it was error to reject the plaintiff’s offer of evidence in proof of such former adjudication.
It will be perceived that this claim of former adjudication involves a consideration of the ruling of the court below temporarily vacating the judgment by the interlocutory proceeding brought therefor. It may be admitted that the question of the defendant’s fraud in procuring the making of the agreement of settlement and dismissal of the case was involved in his motion for new trial, and that the order overruling sucji motion until vacated was res judicata, but the conclusiveness and continuation of effect of such order must give way to the subsequent order.
The interlocutory proceeding brought to temporarily vacate the judgment and to let in the defendant’s new defense under his supplemental answer, could not have been made if the order refusing a new trial was to continue in effect. The rightfulness of the order refusing the new trial was therefore involved in the interlocutory proceeding, and the question of its effect as res ju-dicata can only be determinéd by an examination of the record of that proceeding. All that was decided when that interlocutory proceeding was before this court for review, List v. Jockheck, supra, was, that the order of temporary vacation and leave1 to the defendant to open the case anew, could not be reviewed until the new issue had been tried and .the plaintiff had suffered an adverse judgment. This has now occurred, and if the case as now presented contained the record of the interlocutory proceedings, the effect of the court’s order overruling the motion for new trial could be considered, but the record of those proceedings is not before us. They were not offered in evidence by the plaintiff. We do not have for con sideration a claim of error predicated upon the rejection of this record. The claim of error that is made is predicated upon the rejection of the record of the case down to and including the order overruling the motion for new trial. We cannot determine that the order overruling the motion for new trial was rightly made and should therefore stand, because we do not have before us the record of the subsequent proceedings which resulted in the vacation of such order.
We cannot hold the order overruling the motion for new trial to be res judicata, because we know it has been vacated, and we cannot hold the order vacating it erroneous, because we do not have before us the record of the order of vacation. It is said that we do not judicially know that such order of vacation was made, because the record of such vacation is not before us. This is a mistake. While we do not have before us the record of the interlocutory proceeding containing the order of vacation, yet, the record that is before us contains two distinct rulings by the trial judge stating that such order of vacation was made. This is sufficient to impart knowledge to us judicially. Upon the trial under the supplemental answer and reply, the plaintiff offered in evidence the case made for this court by the defendant after the overruling of his motion for new trial. This offer was rejected, and rightly so. If received it would have proved nothing more than the occurrence of the proceedings prior to the temporary vacation of the judgment. It would not-have proved that the judgment should not have been vacated. The same may be said of some fragmentary portions of the record of the case-made which were also offered. Had they been received they would have proved nothing more than the occurrence of some of the former proceedings and the making of some of the former orders. They would not have proved that such orders were still in force or of binding effect. This offered evidence in connection with the record of the interlocutory proceedings, would have been admissible upon this, the final, trial of the case to show that the judgment should not have been temporarily vacated to enable the defendant to plead and prove the agreement of settlement and dismissal, because the making of such settlement and agreement of dismissal had been involved in the decision of the motion for new trial; but without the record as a whole the offer of the parts in question was rightly rejected.
The plaintiff showed upon her motion for new trial of this case that it was tried before a judge pro tern. ; that at the same time the regular judge held court in an adjacent room, and tried other cases and disposed of other proceedings on the docket; that the judge pro tern, vacated the bench after the final submission of the case to the jury, and that the regular judge, who was disqualified on account of having been a former counsel, received and announced the verdict of the jury. It is contended first that the district court is a unit, a single tribunal, and cannot divide itself into parts and simultaneously conduct proceedings in a dual capacity.
If the record showed that the plaintiff had objected to this division of judicial authority it would present a serious question, but it does not appear that such objection was made, besides the question may well arise as to which ± J of these judges was rightfully in the exercise of the authority to hold court. It would seem that, if the proceedings of either one should be declared void or even erroneous, it would be the proceedings before the regular judge. He having knowledge of his disqualification to try the case in question, and hav ing given way for its trial before a judge pro tern., should take notice of the fact that he was temporarily out of the exercise of his judicial authority, and should know that until the business which justified his temporary retirement from the exercise of his functions had been dispatched, he was disqualified from holding his court. In the interim his judicial authority would be in suspension, so that if objection had been made by the litigating parties that authority could not have been exercised.
The claim that the verdict and findings were wrongly received by the regular judge upon the retirement of the judge pro tern, cannot, under the circumstances as disclosed by the record, be entertained. No objection was made by _ _ . . , the plaintiff or her counsel to this recepx x tion of the verdict and findings, nor was any attempt made to show that she was in fact prejudiced thereby. On the contrary the record shows that upon the announcement of the findings the plaintiff’s counsel moved the court, then presided over by the regular judge, for more definite and specific answers by the jury to some of the special questions submitted. This motion was sustained. The jury were required to return corrected answers to the questions, and after the verdict and corrected -findings had been received and filed, and the judge pro tern, had resumed jurisdiction over the case, the plaintiff’s counsel moved for judgment in his client’s favor upon the findings notwithstanding the general verdict. The plaintiff for these reasons is estopped from questioning the regularity of these proceedings.
The judgment of the court below is affirmed. | [
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Doster, O. J.
This was an action to recover upon a policy of insurance against death by accident. The plaintiff claimed that the death resulted from the injuries of a mule-kick and a fall from a buggy. The defendant claimed that it resulted from causes not covered by the policy, and particularly from the inhalation of illuminating gas, and from an injury received in a railroad accident previous to the execution of the policy. The verdict and the judgment were for the defendant. The plaintiff comes to this court on claims of error occurring at the trial.
The facts as to the several injuries received by the deceased, including the inhalation of the gas, were not seriously in dispute, the medical conclusions to be drawn from the occurrence of such injuries being the matters most strenuously controverted. A very lengthy hypothetical case was stated to the principal expert witness for the defendant. Its quotation in print would cover nearly four pages such as these upon which this decision is reported. It detailed, from the defendant’s standpoint, and with great minuteness, the several injuries of the deceased, his personal and business habits, his apparent state of health, and the incidents of his comings and goings from the time of his first accident to his death, and closed with the interrogatory: “Can you tell what was the cause of his death from that history? ” Objection was made to this question, “ for the reason that the hypothetical case is not based upon the evidence.” This was overruled.
In addition to the specific objection thus made in the cqurt below, it is urged before us that the question is too long, involved, and complex to be remembered and understood by the jury; and also that it called for an opinion by the witness upon the very matter in dispute, and under submission to the jury, to wit, the cause of the man's death. Had these objections been made to the court below, so as to give it an opportunity to pass upon them before review by us, they might be found to be well taken. We know that in order to the formation of a satisfactory opinion by a medical expert all pertinent facts from which a generalization can be drawn shbuld be stated, and also that the length of a hypothetical question is very largely in the discretion of the court trying the case (Rogers on Expert Testimony [2d. ed.] § 28; People v. Brown, 53 Mich. 531); but we think it may be extended to such a great length, and be burdened with such prolixity of detail, as tobe confusing rather than enlightening, to the jurors at least, and thus obscure in their minds the essential facts upon which the diagnosis is based.
We are also aware that the rule as generally stated is that a medical witness may give his opinion as to the cause of death. The most, if not all, of the cases out of which this rule has been collected are those of homicide. In such cases an opinion by a medical witness as to the cause of death rarely, if ever, involves the principal question submitted to the jury, 'to wit, the guilt of the accused. The opinion he expresses is upon the cause of the death, and not as to who caused it. lienee in such cases the witness, though answering the same character of question that was asked in this case, passes no opinion upon the principal fact to be tried, but only gives an opinion upon a fact from which the one principally in controversy may be inferred. In this case the principal fact to be tried was the cause of death. An expert opinion as to that cause, if accepted as true, would conclude the whole case; but in cases of homicide an opinion as to the cause of death, even if accepted as true, still leaves the question as to responsibility for such cause open for determination. Let the cause of death in such cases be admitted, and the inquiry would still remain — Is the defendant guilty ? In this case, if the cause of death were proved or admitted nothing would remain for determination; the defendant would be liable or not liable according as the efficient cause of death were shown to be one thing or another. Hence, it is by no means clear that the inquiry submitted by the defendant to its medical witness, as to the cause of death, was proper to be made. Save in such rare and exceptional cases as admit of no other method of proof, it would seem that opinions, whether by experts or others, are not admissible upon the ultimate fact to be found. However, no objection raising such question having been made to the court below, we are unable to determine it.
The objection to the question because not based upon the evidence in the case must be sustained. Hypothetical questions must be based upon evidence. It does no good to theorize as to a state of facts not proved. Rogers on Expert Testimony, §27. With one exception, all the facts assumed in the hypothetical question asked of defendant’s witness had a basis in the evidence ; but, in the main, the injuries claimed by the defendant to be the cause of death were stated in an exaggerated form, and those relied upon by the plaintiff as such causes were so minimized in character and extent as to make them appear inconsequential. It would be difficult to say that these forms of statement of inju ries were so far from the facts as to be prejudicial, because the real facts of such injuries, having been testified to by witnesses, were known to the jury, and besides counsel are privileged to a great extent to state the facts as they view them. But, in one particular, the question assumed the existence of a material fact of which there was no evidence. It was in testimony that the deceased, a few nights before his death, went to bed in a hotel; that towards morning one of the other guests, being attracted by the smell of gas escaping from the room in which the deceased had retired, opened the door of his room and aroused him — speaking to him in a loud voice. The witness testified as follows :
" When I spoke to him in that loud tone of voice, he raised up in bed and spoke to me, and said : ‘ Is that you Ed?’ He seemed just like a man waking up. He seemed a little slow and hard to Avaken.”
This Avas the only testimony as to the waking up of the sleeper and to his condition on being aroused. The hypothetical case stated to the defendant’s witness assumed the condition of tho man to be a "semi-unconscious condition ’ ’ from the effect of the escaping gas. Upon this assumption the expert in great part based his diagnosis of the cause of death. In making his ansAver he first recapitulated all the previous injuries received by the deceased, as they had been stated in the hypothetical question put to him, and then said :
"All of these shocks play their part in bringing about very serious conditions, and later on, as a last feature in the case, Ave find the man at a hotel inhaling gas. We know the primary effect of gas poison is dilation of the bloodvessels, a congested condition of the brain ; and Ave already have had a weakened condition to deal Avitli from the start; and Avhat I have heard of the testimony and what is embodied in the hypothetical question I should judge that the mature cause of the man's death was apoplexy, produced by the inhalation of gas, each of these other factors playing their part in rendering the blood vessels sufficiently weak to give way under the stress of circumstances attending that inhalation of gas. That is about how I should look at a case like that if it was brought to me.”
What the testimony of this witness might have been as to the cause of death had not the incident of breathing the gas been stated to him in such highly exaggerated form, we do not know. Stated to him as it was, it formed in his judgment one of the efficient causes of death; a cause which, as is evident from his testimony, materially hastened the death. It was therefore substantial error to allow the question in the form in which asked.
Other claims of error are made, and in particular one relating to. the proper construction of the terms of the policy sued upon. We have examined these alleged errors, but do not agree with plaintiff in errólas to any of them. However, for the one pointed out, the judgment is reversed, and a new trial ordered. | [
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Allen, J.
This case presents the single question whether appraisers, summoned by the sheriff to appraise land to be sold at judicial sale, must do more, in order to comply with the requirement that the appraisement be made on actual view, than merely go on one corner of a 240 acre tract. The appraisement under consideration was made in June. It appears from the affidavits of the appraisers that they made no inspection of the buildings, orchard, or growing crops, and that they had no accurate knowledge, from previous observation, as to the size and finish of the house, and did not know the number of acres covered with growing crops. The day was windy, and they rode in company with the deputy sheriff to the corner of the land, where they stopped. They did not get out of the buggy, and made no further examination than such as could be obtained from the buggy. The house and outbuildings were half a mile away.
Such an appraisement is not a substantial compliance with the requirements of the oath taken by the appraisers that they will appraise it upon actual view. It would be difficult to announce an exact rule declaring how minute an inspection they must make, but it may be said, in general terms, that they must see the whole property, and, from actual view, obtain such knowledge as will enable them to form an independent judgment as to its value. It may not be necessary to measure each field, or to take an inventory of all that is upon the land, but they should see and observe what improvements there are, and in a general way ascertain the extent and condition of the parts covered by growing crops, and the size and character of buildings, orchards, wells, and other improvements. In brief, their view should enable them to intelligently appraise the property. Alfred v. Bank of Hazelton, 48 Kan. 124, 29 Pac. 471. The appraisers in the case under consideration did not substantially comply with the law.
The order confirming the sale is reversed, and the case remanded with directions to set it aside. | [
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Allen, J.
This action was brought against the township of Emporia, in Lyon County, on behalf of Mary E. Dougherty, by L. S.'McFarland, as her next friend, to recover damages resulting from the death of Reuben Dougherty, her father. The evidence offered by the plaintiff shows that on the tenth of January, 1894, the deceased was driving a team, hitched to a farm wagon, from Emporia towards his home, southeast from the city ; that he was going south until he came to a place in the road where it connects on one side with a road from the east and. on the west side passes along the Cottonwood River. At this point, the river bank was cut away tp such an extent as to take out one-third the width of the road. The bank near the top was very steep for some feet and then sloped down to the river. The perpendicular distance from the top of the bank to the water is variously estimated at from fifteen to thirty feet. Around this place and on top of the bank, a fence, consisting of posts and two wires, had been built. Some of the evidence tends to show that the wires were down at the time mentioned. No one was with Dougherty or saw him at the time he came to his death ; but in the morning he was found dead in the river, a short distance below this place. His horses were detached from the wagon, standing a little distance from it. The wagon was found in the river, and the tracks of it were traced back to the roadway. They indicated that the wagon had turned out from the traveled track, and gone over the bank of the river, nearly at right angles to it. Between the wagon tracks, the butt of a walnut fencepost which appeared to have been broken off between six inches and a foot above the surface of the ground was found. In order to go to his home, the deceased should have turned to the east at about the place where he in fact turned west. The record discloses no reason for his taking the wrong direction. It shows that he was a sober, industrious man, about fifty-five years of age. .
There was evidence showing that the township trustee was familiar with the road, and knew of the encroachments of the river upon it; and that he was pi’esent at a conversation between the members of the board of county commissioners when the matter of the encroachments of the river on roads at this and other points was talked of, but the matter of barriers to prevent accidents was not discussed. Harvey Wright was called as á witness for the plaintiff, and testified that he was township trustee on the tenth of January, 1894, and had been during the preceding year; that he had frequently passed along the road, and had done, so between Christmas and New Year’s preceding the accident. On cross-examination, which was objected to by the plaintiff, he testified that there was a fence around this place, made of posts, about a rod apart, with two wires on them. On re-direct examination, he testified that he thought the fence was originally built by the road overseer, but did not know certainly who built it. There was no evidence of any other notice to the trustee that the road was in a dangerous condition. The trial court sustained a demurrer to the evidence, and this ruling is complained of in this court.
It is contended that the evidence shows that the trustee knew the dangerous condition of the road at that particular place as well as any one else, and that formal notice was therefore unnecessary. The evidence in the case shows that the roadway in that vicinity was level and passable for the entire width between the fence mentioned and other fences and hedges on the east side of it. The traveled track was at least six feet from the brink of the river bank. Most witnesses place it considerably farther away. No danger was to be apprehended if the traveled way was followed. There was ample space for teams to pass. ■ There was the barrier of the fence to warn passers-by away from the river. It is well settled that the public is not bound to make the whole width of a highway passable. In many places it would be utterly impracticable to do so. The negligence charged in this case is in failing to maintain a sufficient barrier to prevent accidents of the kind that befell the deceased. There is no contention that that part of the roadway should have been maintained in a passable condition. The circumstances of the case indicate that either the team or the wagon of the deceased came in contact with a fence post of ordinary size' and strength and broke it. The real question presented by the facts of this case is-whether the township trustee was bound to take notice that the fence was an insufficient barrier.
In most cases, and under ordinary circumstances, it would seem that such a fence would be an ample warning to keep persons driving along the road from running off the bank. It would seem that horses under ordinary circumstances would be checked by it until they would see and avoid the danger. What impelled Dougherty’s horses to rush over and break down the fence is a mystery wholly unexplained by the evidence. The township trustee was not bound to guard against all possible contingencies, all improbable conduct, but only against such dangers as he was notified of. There would seem to be in reason a distinction between defects in the traveled way •itself, which must be encountered by persons traveling over it, and those dangers which arise merely from the proximity of cuts, washouts and pitfalls. Township authorities may well be held to much more strict performance of their duties in maintaining the safety of the traveled track than in providing against the more remote contingency of dangers to be encountered by those who leave it and go into unsafe places not prepared or intended for travel. The testimony in this case fails to show that the attention of the township trustee was challenged to the insuffi ciency of the fence as a barrier. We cannot say that he is chargeable with neglect in not having anticipated that such accidents might happen ; still less can we say that the township is liable under the statute. The knowledge the trustee had was not equivalent to the notice the statute contemplates. No error was committed by the trial court in sustaining the demuri’er to the evidence.
Complaint is made of the ruling of the court on the ■cross-examination of Harvey Wi’ight. The direct examination was for the purpose of showing his opportunity for knowing the condition of the road at the point under consideration, and from this the evident purpose was to draw the inference that he had such knowledge as his opportunities for obtaining it would afford. The cross-examination was for the purpose of showing, not by inferexxce, but by direct statemexit, just what he did know about it. This is just exactly what cross-examination is for, to develop more fully and definitely the truth of the matter inquired about.
Complaint is made of the ruling of the court in excluding testimony with reference to the condition of the fence at different times prior to the injury. The matter was very fully examined into and no error was committed in this respect.
The judgment of the court is affirmed. | [
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Johnston, J.
This action was brought upon the following guaranty :
“May 27, 1893, Madison, Kansas'.
“John S. Brittain Dry Goods Company, St. Joseph, Missouri: We, the undersigned, hereby agree that we will guarantee the payment of goods purchased by C. A. Yearout, manager for the Union Co-op. Exchange Ass’n. C. A. Yearout. William Barngrover.
An. Jardinier. Charles H. Day.
J. J. Dawson. W. T. Curry.”
The association was a corporation engaged,in the mercantile business at Madison, and in May, 1893, through its manager, C. A. Yearout, it negotiated a purchase of goods, on credit, from the John S. Brittain Dry Goods Company. At the time of purchase the Dry Goods Company informed Yearout that it must have the personal guaranty of at least three or four responsible farmers before it would open an account with the .Association, and the goods which were then purchased were held until the guaranty upon which this action was brought had been given. It does not appear that any notice of the acceptance of the guaranty or of the furnishing of the goods to the Association was given to the guarantors. This action is not brought to recover for the goods sold in May, 1893, but for goods sold long afterward, and for which payment has not been made. In August, 1893, a bill of merchandise was sold to the Association, and at subsequent times other bills were sold, amounting in the aggregate to $4984.03. Several payments were made by the Association, and in December, 1893, it executed to the Dry Goods Company a note for four thousand dollars, signed by the manager and three of the directors, which note was received and retained by the Dry Goods Company.
The district court held, and we think correctly, that the guaranty was not a continuing one, but that only a single transaction was in contemplation by the guarantors. A contract to pay the debt of another should not be expanded beyond the fair import of its terms. A guarantor, like a surety, is a favorite of the law, and he is not held unless an intention to bind himself is clearly manifested; and his liability is never to be extended beyond the precise terms of his obligation. Kepley v. Carter, 49 Kan. 72, 30 Pac. 182.
While a guarantor should be held to every obligation fairly embraced within the terms of the instrument, yet the language should be strong and clear to justify the court in holding it to be a guaranty of all future purchases which the other party might make, without limit either as to time Or amount. The language of the one in question does not indicate a purpose of extending credit for all future purchases for an indefinite time or that a succession of credits was to be given ; nor was there anything in the attending circumstances manifesting such an .intention. The guaranty was for the payment of “ goods purchased,” and not for the payment of future purchases or transactions which might run thi’ough aseries of years. The manager of the association had selected and purchased a stock of goods, but before the Dry Goods Company would deliver or ship the goods so purchased they required a guaranty. Under these circumstances the fair implication is that the guarantors only bound themselves for the goods already purchased, and that they did not intend to extend an indefinite and unlimited credit.
We find nothing substantial in the objections to the rulings on the findings, and seeing no error in the record the judgment of the district court will be affirmed. | [
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Johnston, J.
On August 15, 1898, the Board of Education of Emporia, a city of the second class, proposed a tax levy of fifteen mills for the support of public schools for the ensuing year, and at once transmitted the same to the City Council of Emporia and requested its approval of'the levy. At a meeting of the City Council, duly held on August 24, 1898, the proposed levy was considered, and a resolution was passed containing a statement of the revenues and expenses of the city, but which declined to approve the levy as made by the Board of Education. The City Council did offer to approve the levy to the extent of thirteen mills, but expressly disapproved of the additional two mills of the levy as made by the Board. The Board of Education, contending that the City Council had no discretion in the matter, but that it was compelled to accept the levy as made and reported to it, caused this proceeding to be brought to compel the City Council to approve the school levy of fifteen mills as made b'y the Board. We are required to determine whether it is the mandatory duty of the City Council to accept the levy proposed by the Board of Education, without exercising any judgment or discretion as to the propriety of the same; or, rather, whether the approval of the levy does not involve the intelligent assent and concurrence of the City Council. The statute prescribing how the levy shall be made, is as follows :
“The board of education shall on or before the fifteenth day of August of each year levy a tax for the support of the' schools of the city for the fiscal year next ensuing, not exceeding in any one year fifteen mills on the dollar, on all personal, mixed and real property within the district which is taxable according to the laws of this State, which levy shall be approved by the city council; and when so approved, the clerk of the board shall certify to the county clerk, who is hereby authorized and required to place the same on the tax roll of said county,” etc. (Gen. Stat. 1897, ch. 63, § 178.
What kind of approval is required of the City Council by the foregoing provision? That the approval of that body is essential to a valid levy is conceded, but in behalf of the Board it is contended that the act required of the Council is merely formal and compulsory. It is argued that this must have been the legislative view because the board and council are distinct corporate bodies, and that in all respects each acts independently of the advice, assistance or control of the other. To the Board is confided the control and management of the schools. It determines the number of school buildings necessary, the number of teachers to be employed, and has full control of the entire expenditures to be made for school purposes. No provision is made that the Board shall report to the Council the number of children of school age within the district, the number of teachers employed, the financial status of the district, nor any other facts necessary to the ascertainment of the amount necessary for the current school expenses for the ensuing year or necessary to a determination of the rate which should be levied. In the same connection it is argued that no provision is made for the determination of a dispute between the Board and the Council as to the rate of taxation, should one arise, and that if the actual approval of the council is required it would result in some instances in giving the entire control of the levy to the Council instead of to the members of the Board who have been chosen because of their peculiar fitness to manage and control the educational interests of the city.
It will be observed that these are mainly arguments ab inconvenienti, and can have little effect in interpreting a statutory requirement so plain as the one in question. We think the terms employed when given their natural and ordinary signification involve an exercise of judgment and discretion, and that the approval referred to implies the official assent and sanction of the city council. Nothing iii the consequences of the act or in the difficulties attending its operation warrants the court in eliminating one of the checks plainly placed by the Legislature upon the power of imposing a tax. Within constitutional restrictions the Legislature has full power to regulate the manner in which taxes shall be levied and collected, and the methods prescribed must be strictly pursued. It may delegate the power of determining the amount to be raised by tax and the rate of the levy upon one or more of the legislative tribunals or officers as it may deem best. It might have lodged the power of making this levy in either of these bodies, as well as in both of them, and might have required that there should be a joint concurrence of the board of education, the city council and the board of county commissioners.
It will be noticed that there is no uniformity in the methods of imposing taxes in the State and its various subdivisions. The state tax is provided for by an act passed at each regular session of the Legislature; taxes for county purposes are levied by the board of county commissioners ; township taxes are imposed by the concurrent action of the township trustee and the board of county commissioners; while taxes for city purposes are levied by city councils. The Legislature in its wisdom has provided a variety of methods for levying taxes to maintain schools. In cities of the first class taxes for that purpose, are levied by the board of education ; in cities of the second class by the concurrent action of the board of education ' and the city council; while in school districts, which include cities of the third class, the tax is voted at the annual meeting by the qualified electors.
The legislative history of school levies in cities is worthy of consideration. In 1862, the Legislature placed the government and control of city schools in a board of trustees, two to be chosen by the electors from each ward, substantially as they are elected at this time ; but the power to provide for the support of the schools by the levy of taxes was confided to the city council. (Comp. Laws, 1862, ch. 46, art. 4.) In 1868, boards of education were created in cities of the first class by the election of three members from each ward, who had full control of the schools, and were required annually to prepare an estimate of the funds required for the support of the schools for the ensuing year, and the city council was authorized and required to levy the same as a tax provided it did not exceed a specified limit.
In cities of the second class boards of education were invested with like authority, and the duty of making a levy for school purposes was imposed upon city councils, substantially in the same manner as in cities of the first class. Gen. Stat. 1868, ch. 18, § 85; ch. 19, § 67. In 1872, it was provided that boards of education in cities of the second class should levy the tax for the support of common schools, not exceeding six mills on the dollar, and the city council had no part or lot in the. matter. Laws of 1872, ch. 100, § 314. In the following year, the Legislature changed the law in this respect by requiring that the levy made by the board should have the approval of the city council, and that it should not be certified to the county clerk to be placed on the tax roll until the approval of the city council was obtained. (Laws, 1873, ch. 65, § 7.) The approval of the city council has ever since been required, and no material change has been made in this provision of the law except as to the rate of the levy.
It thus appears that part of the time in such cities, levies for school purposes have beén made by city councils alone, part of the time. by boards of education alone, and part of the time by the concurrent action of the boards of education and the city councils. In view of this history it is not easy to say that the approval referred to is a purely perfunctory act of the city council. If the approval had been required of an officer vested with authority to certify papers or authenticate proceedings, there would have been more room for the contention that is made by the board. No such duty is imposed' on the city council, and a. function of the kind suggested is not consistent with its character and organization. It is a deliberative body to which matters are submitted for consideration and decision, and in this case we think the approval required involves consideration and assent. Nothing in the language employed indicates that the approval required is merely formal and mandatory, and it occurs to us that no good purpose could be subserved by a perfunctory approval. Treated as a limitation on the power to levy, a reason for the law exists, but unless the assent and agreement of the council Avas intended it is difficult to imagine a sensible purpose in the provision.
In the earlier history of schools, the council Avas invested with the entire power to make the levy, and no good reason is seen why it may not share that poAver with the board of education, in the same way that the township officers share the power of levying taxes for township purposes with the board of county commissioners. .We cannot escape the conviction that this provision was intended as an additional limitation on the power to levy a tax. While the board employs all the teachers, makes all the contracts, furnishes all the supplies, and has exclusive control in distributing the funds derived from the tax, for some reason the Legislature deemed it wise to place another limitation on its power to impose a tax. The board it is true has better opportunities for ascertaining the needs of the schools and some very forcible objections are made against the policy of a divided authority in the making of levies, but these are matters for the Legislature to settle, and the objections are not insuperable. Although officers of distinct corporations, the territory and people represented by each body are substantially identical, and it was competent for the Legislature to confer the power of levy on one or both of them.
The council is necessarily acquainted with the auiount of taxable property, the general condition of the people and their ability to provide funds for public purposes. The books and records of the board are public and open to the council and ffi.1 others interested for information as to what is required for the maintenance of the public schools, and the board if called upon can furnish such detailed information as may be necessary. While the limitation gives great power to the city council in the matter we cannot assume that the council will abuse this power or refuse concurrence when a fair and reasonable levy is proposed.
In every case where official approval is required' to which our attention has been called it involves the exercise of discretion and judgment. The following may be mentioned as examples of what is meant by an official approval. When bills or joint resolutions are passed by the House of Representatives and the Senate, they are sent to the Governor for his approval. When certain appointments to public offices are made by the Governor, they are transmitted to the Senate for its approval. Official bonds of state officers are to "be submitted to the executive council for approval; and the bonds of district and county officers are to be submitted to other boards and officers for approval. Appeal bonds and undertakings in judicial proceedings are required to be presented to judicial officers for approval before they become effective. A considerable sum of money is appropriated for clerk hire in the Supreme Court, but the amount to be paid to each clerk is to be approved by the judges of the Supreme Court. A great many appropriations are made upon the condition that the necessity and validity of the expenditure shall receive the approval of some officer before payment can be made. In these and like cases it has always been considered that the assent and concurrence of the approving tribunal or officer were necessary, and no good reason has been shown us for making an exception of 'this case, or that the legislative intention was that a deliberative body like a city council should be required to say they approve of that which does not meet their approval.
Our attention has been called to a different ruling on a similar statute by the Supreme Court of Oklahoma, as found in the carefully prepared opinion in Board of Education v. Mayor, etc. of City of Kingfisher (48 Pac. 103). While entertaining a high opinion of the learning and ability of that court, we are unable to- follow its reasoning or concur in the conclusion which it reaches.
The writ will be denied. | [
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Dosteb, C. J.
These cases are identical in all respects, and may be considered and disposed of together. They are appeals from sentences of the district court imposing punishments for contempts of its order and process. The operation of the Leavenworth, Topeka and Southwestern Railroad was abandoned in .1894 by the corporation owning it. J. C. Stone claimed that by the terms of a right of way deed executed to the railroad company, its cessation of the operation of the line worked a forfeiture of the easement over his land, and a restoration to him of the right of way. He instituted an action to declare the forfeiture, to restore his possession, and quiet his title. To this action the railroad company and the American Loan and Trust Company, a mortgagee of the railroad, were made defendants. Service was made upon both of them by publication. The trust company made no appearance in the case. The railroad company, failing to secure its dismissal from the action upon a claim of invalidity in the service upon it, filed an answer to the plaintiff’s petition. Soon after the institution of this action one C. T. McLellan was appointed .receiver of the property and franchises of the railroad company, at the suit of the American Loan and Trust Company for the foreclosure of its mortgage. He immediately took possession and from thence on conducted the operation of the road. After taking possession he applied to the district court for leave to appear and file an answer in the suit of Stone v. the Railroad and Trust Companies. His application was denied. About two and a half years after the beginning of the action by Stone, judgment, as prayed for, was rendered against both the Railroad and Trust Companies. An execution was issued lipón this judgment commanding the sheriff to “forthwith cause restoration to be had of the above described property, and to put and maintain the plaintiff in the quiet and peaceable possession thereof.”
The sheriff went to the portion of the right of way in question and put Stone in possession, specially appointing an officer to assist him in maintaining it. They placed obstructions upon the portion of the railway track claimed by them. The appellant, Chaplin, was a minor official in the employ and acting under the instructions of McLellan, the receiver. The appellant, Atwood, was an attorney of the receiver. He advised Chaplin to disregard the claimed rights of Stone and the process under which possession of the disputed right of way had been taken. Together the appellants visited the place in question and caused the removal of the obstructions placed upon the track, whereupon trains began and continued to run over it as before. Atwood and Chaplin were thereupon attached and fined for contempt of the judgment and process of the court, and, as before stated, they have appealed from the sentences of conviction.
These sentences cannot stand, for two sufficient reasons. First, the receiver was not a party to the action and was not bound by the judgment rendered in the case, and the process issued in behalf of the plaintiff Stone was not issued against the receiver. Second, the rule of comity between courts, which is likewise a rule of law, forbids interference, even by the officers of other courts, with property in the possession of a receiver, except by leave of the court appointing and controlling him.
It will be, of course, conceded that the attorney and •agent of the receiver were bound by nothing which did not equally bind their principal. If the receiver was not bound to take notice of the writ under which the plaintiff Stone had been restored to the possession of the land, and would not be bound by it because not a Party t0 CaSe in which it WaS ÍS-sued, the appellants would not be bound by ft; or required to take notice of it. Were they bound by it or required to take notice of it? It must be observed that the appellants were not the agent and attorney of the American Loan and Trust Company. They were the agent and attorney of the receiver, and the receiver was not the agent of the Trust Company and therefore bound by the judgment against it, but he was the agent of the court appointing him. It must also be observed that the appellants did not interfere with the officer in the execution of the writ. The writ had been executed, the possession restored and the officer had gone away. The sheriff, therefore, was not obstructed in the execution of his process. It may be, for the fullest purposes of the appellee’s or respondent’s contentions, admitted that the entry of the receiver upon the premises was unlawful as against Stone. The process, however, under which Stone had been given possession was not process against the whole world. It was against the defendants in the case, and against them alone. The unlawful entry of the appellants, if it were such, was a trespass for which an action for damages would lie. The ouster effected by them might give cause for an action against the receiver, if prosecuted in the proper court, but it constituted no obstruction of the process or violation of the orders of the court, because neither they nor the receiver were parties to the action. The writ in question was possessory in its nature. It was such as is properly issued to carry into effect a judgment in ejectment. The action in reality was an action in ejectment. As to such actions— »
“The doctrine seems to be generally established that persons who were not made parties to the ejectment, and who were in possession before it was instituted, or who claim under titles distinct and independent from or paramount to the title litigated in the ejectment, cannot be evicted under the writ.” Sedgwick & Wait on Trial of Land Titles, § 562; Wilson v. The State, 115 Ala. 129.
Of course, if one not a party to an ejectment action could not be evicted under the writ of possession, because not a party to the suit in which the process was issued, he could not be a violator of the writ or in contempt of the court issuing it if after the service he interfered with the plaintiff's possession.
But it may be suggested that the command of the writ was not alone to put the plaintiff in possession, but also to maintain him in the possession, and that a deputy under the sheriff was endeavoring to enforce the command of that portion of the writ.' We pass by a question raised by appellants whether the writ in this respect conformed to the judgment of the court, and also pass by a question raised by them whether the deputization of the person put by the sheriff in charge o fthe premises was in sufficient legal form to confer upon him any authority. In the view we have taken of the case the determination of these questions is unnecessary. The court had. no power to order the sheriff to “maintain” the plaintiff in possession. Courts cannot in such cases by the mere issuance of process “maintain” successful litigants in the rights accorded to them. _ They cannot in such cases order the stationing of their sheriffs and bailiffs as guards over premises, to prevent the commission of trespass thereon. Besides, if the command to the sheriff to “maintain” the plaintiff in possession could have been legally made, it could only have been made as against the defendants in the case, and not against strangers to it. The untenability of a contrary position becomes manifest when we consider that the effective execution o'f a writ ordering a sheriff to. “ maintain ” a successful plaintiff in an ejectment suit in the possession of the premises, might require maintenance, not for a day, or a week, or a month, it might require maintenance during the life of the first writ, and if possession was thereafter menaced might require the issuance of an alias, and after that a-plwries writ; and if these writs in such a case as this are effective against strangers, any passenger who, with knowledge of the issuance and continuance of the writ of maintenance, rode over the plaintiff’s land in one of the receiver’s trains, would be equally guilty with the receiver and the receiver’s agents of a violation of the writ.
A second and equally conclusive objection to the sentences of conviction is that the act of the appellants was in law the act of the receiver, and the act of the receiver was in law the act of the court appointing him. The doctrine of comity between courts will not permit the subjection of a receiver, or his agents or subordinates act- ° ing on his behalf and in his name, to attachment and conviction for contempt of another court. If a receiver, in the execution of his trust, runs counter to the jurisdiction or claim of authority of another court, the forum to which appeal must be made for the correction of his conduct or the punishment of his offense is the court appointing and controlling him. This for the reason that a receiver is an arm of the court, exercising not his own authority, but the authority and power of the court. These principles have been so often decided that they have become settled in the law of receiverships. They were declared and enforced by this court in the recent case of The State v. Miller (54 Kan. 244, 38 Pac. 269), in which facts but slightly if at all different from those herein reviewed were under consideratiou.
The sentences of conviction of the court below are reversed, with directions to discharge the appellants. | [
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Doster, C. J.
The appellant was convicted of the crime of grand larceny. After the trial had closed, and the jury had spent some time in deliberation, they were brought again into the court-room and, upon being admonished as required by law, were by the court permitted to separate for an hour and a half to procure dinner. After reassembling and resuming their deliberations a verdict of guilty was found.
The defendant appeals to this court, alleging the separation of the jury as his principal claim of error. Madden v. The State (1 Kan. 340), is relied upon in support of the claim. In that case several members of the jury were allowed to leave the jury room and go out into the town, unattended by an officer. This was done without the order or permission of the court, and in that respect differs from the present case. This difference between the cases is vital. The Criminal Code (Gen. Stat. 1897, ch. 102, § 274) authorizes a new trial for the following cause: “When the jury has been separated without leave of the court after retiring to deliberate upon their verdict.” The neces sary implication from this language is that the court may authorize a separation of the jury after the final submission of the cause. The only statutory provision from which a contrary inference might be drawn is section 237 of the Criminal Code. This section requires the jury to “retire under the charge of an officer sworn to keep them together in some private or convenient place, without food except such as the court shall order, and not permit any person to speak or communicate with them, nor do so himself unless by order of the court, of to ask them whether they have agreed upon their verdict, and return them into court, or when ordered by the court.” It is contended that under this section the officer, being required .to keep the jury together in some private or convenient place and to neither hold nor permit communication with them, cannot discharge the obligation of his oath if the court interferes to permit a separation. This is true, and if the section quoted were the only provision upon the subject the argument would be sound, but it is not the only one upon the subject. It must be construed in connection with section 274, and so construing them, they provide for holding the jury together by the officer in charge, except as the court may otherwise order. We think that for a necessary purpose the court may order otherwise, and that'in such case it is incumbent upon the defendant to show that prejudice has resulted to him because of this separation. Prejudice was not shown in this case, nor indeed was any attempt made to show it.
Other claims of error are made. We have examined all of them. They are, however, unfounded. The judgment of the court below is affirmed. | [
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Johnston, J.
Warren Crandall, j$„, seeks release from imprisonment through the writ of habeas corpus. The history of the prosecution and the imprisonment is briefly as follows : On May 3, 1897, Lizzie Hinds filed a complaint before a justice of the peace charging that Crandall did feloniously use and cause and procure to be used, certain instruments, which were thrust in and upon the body and womb of Lizzie Hinds, a woman pregnant with a quick child, with intent to destroy such child. That the use of the instruments was not necessary to preserve the life of the mother, and was not advised by a physician to be necessary for that purpose. There were six counts in the complaint. The first five of which charged the attempt to destroy the unborn quick child, and the last charges that the attempt was successful, and that the unborn quick child was destroyed by the use of the instruments. These several offenses are alleged to have occurred in the months of April, May and June, and the last on the fifth day of July, 1895. The warrant for the defendant’s arrest was issued on May 3, 1897, under which he was arrested on July 22, 1897. In a preliminary examination held August 10, 1897, the petitioner was bound over to the district court, and required to give a bond for his appearance at the September term following.
On September 7, 1897, the petitioner appeared, but the county attorney of Coffey County declined to file an information against him, and filed his reasons in writing with the clerk of the court, why no information would be filed; and upon his motion, the district court dismissed the prosecution and discharged the petitioner. On the same day-of the dismissal, a lawyer who had been employed by the prosecuting witness, moved the court to reinstate the case against the petitioner. This motion was taken under advisement, and on September 30,1897, the motion was sustained, and an attempt was made to reinstate the case. The petitioner was again taken into custody upon a commitment issued by the clerk of the court, and failing to give bail, he was imprisoned in the jail of the county. On October 2,1897, he applied to the probate judge of Coffey County for the writ of habeas corpus, and after a trial of the issues raised by the petition and answer therein, the probate judge.discharged him from imprisonment,, On January 4, 1898, upon the order of the district court, an information was filed which charged the petitioner with the commission of an offense substantially in the language of the last count of the complaint which had been previously filed, and upon this information a bench warrant was issued, under which the petitioner was arrested. He gave bond in the sum of one thousand dollars for his appearance at the April, 1898, term of the court; but on January 31, 1898, the bondsmen surrendered the petitioner to the sheriff, and he thereupon applied to the probate judge for a discharge upon the writ of habeas corpus.
On February 10, 1898, after a trial upon the issues joined, the petitioner was again discharged by the probate court. On February 23, 1898, an amended information was filed, charging the petitioner with the same offense, in substantially the same language as that employed in the complaint. A bench warrant was issued for his arrest and his bond fixed at $2500. Having been placed under arrest, he applied to this court for release on the writ of habeas corpus.
The contention of the petitioner is that no felony was charged against him ; that the preliminary examination had and the binding over to the District Court were invalid; and that the District Court acquired no jurisdiction by reason of the proceedings before the justice of the peace; that if the filing of the information in the District Court is to be treated as the commencement of a prosecution, it was then barred by the Statute of Limitations, and further, that the order of the probate court discharging the petitioner was valid and effectually terminated the prosecution. It is manifest from the language used in the complaint and warrant, that the prosecutor intended to charge the petitioner with a violation of section 15, of the Crimes Act. Probably his attention had not been called to the fact that this section had been held to be invalid, because it attempts to make certain acts manslaughter where no one is killed, The State v. Young, 55 Kan. 349, 40 Pac. 650.
In the argument before us it is urged that it charges a violation of section 14, of the Crimes Act, which provides that ‘ ‘ the wilful killing of any unborn quick child by any injury to the mother of such child, which would be murder if it resulted in the death of such mother, shall be deemed manslaughter in the first degree.” To constitute an offense under this section it must be alleged that the acts done and the injury inflicted on the mother, were of such a character as would have been murder if the death of the mother had resulted therefrom. Even murder in the lowest degree would require that the injuries inflicted, and the attack on the life of the mother were purposely and maliciously done and made. There is nothing approaching that in the charge, and it is clear that it falls far short of alleging a violation of that section, or of charging a felony under any other section of the Crimes Act.
It is suggested, and may be conceded, that a misdemeanor was alleged under section 44, of the Crimes Act; an offense for which no preliminary . ,. , n ,, , , , * examination could be legally held. A D J complaint . charging an offense having been made before the justice of the peace, that officer had jurisdiction to try and finally determine the case, but he had no authority to hold a preliminary examination, or to bind the accused over to the district court. The jurisdiction of the justice of the peace and of the District Court, in such cases, is concurrent and equal, and when the justice of the peace became vested with jurisdiction he had no right to surrender it unless a change of venue was allowed, and no authority in any event to transfer the case to the District Court. His act in sendingit to the District Court was a nullity, and that court acquired no jurisdiction by the transfer, nor until an information was filed in that court. In re Donnelly, 30 Kan. 191, 1 Pac. 648, 778; The State v. Lund, 49 id. 209, 30 Pac. 518.
The first information was filed in the District Court on January 4, 1898, and granting that it charged a misdemeanor, it' was one that was com-mitted on July 5, 1895. It will be ob-served that more than two years had elapsed from the commission of the alleged offense, or even from the first arrest of the defendant, before the prosecution was begun. Such a prosecution must be commenced within two years after the offense is committed. And as the preliminary examination proceedings are a nullity, the time when they were had cannot be excluded from the statutory period of limitation. The bar of the statute was therefore complete before the prosecution in the District Court was begun.
Aside from the fact that the petitioner was discharged by , the District Court in September, 1895, upon the motion of the county attorney, he was twice discharged by orders of the probate court, after full hearings were had attended by all of the interested parties. That court has full authority to allow writs of habeas corpus and to inquire into the legality of proceedings upon which a person is restrained of his liberty. In that respect it has equal power with the District or the Supreme Court, and its order discharg ing a person, when made, is just as effectual and binding as one made by the higher courts. The petitioner was not discharged by the probate court on account of technical defects in the process, nor on account of any curable defects in the proceedings, but. because no offense was alleged for which the petitioner could be prosecuted. The order of discharge by the probate court, therefore, not only restored him to his liberty, but terminated the pending proceedings. The petitioner could not be arrested or held in custody, unless a new prosecution was instituted, and the District Court was not warranted in disregarding the orders of discharge, nor in holding the petitioner upon proceedings determined to be void.
Petitioner discharged. | [
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Allen, J.
The plaintiffs in error, as the widow and children of James Harrison, brought this suit on a certificate of membership in the Masonic Mutual Benefit Society issued to him on the twenty-ninth of October, 1879. It is alleged in the amended petition that all dues and assessments payable by the terms of the certificate for and including the year 1883 were duly paid; that iu the year 1883, and prior to the fifth of November, James Harrison came to his death in some manner unknown to the plaintiffs ; and that they were unable to furnish proofs of his death until the sixth of June, 1894, when such proof was duly made. It appears from the testimony that James Harrison, with his family, consisting of his wife and several children, resided on a farm near Holton, in Jackson county ; that he was a master mason in good standing ; that his domestic relations were pleasant, and that he had no serious financial embarrassments. Early in March, 1883, he left his home with a team of horses, Wagon, and harness, in search of work. He informed his family that he intended to go to work on a railroad, and that it would be about fifty miles from Topeka, but that he might have to go farther. He stated to his wife that he would write in three days. On his way, he stopped at Topeka and paid two assessments on his certificate, a current one then due and one in advance, which continued his membership until- sometime in October following. He was never seen or heard from after that. About ten days after he went away, the plaintiffs commenced to make inquiries about him, but were not able to get any trace of him, or of the team and wagon with which he started out. At the request of the plain tiffs, Mr. Nellis, the secretary of the society, made inquiries without success. The certificate of membership provides that the amount due thereunder shall be paid “within thirty days after due notice and satisfactory evidence of the death of said James Harrison.” While the secretary of the society was notified of the disappearance of Harrison, no formal proof was presented until the fifth of July, 1894. The answer denied liability, and alleged that the policy had become inoperative by reason of the failure of Harrison to pay assessments thereon and that the plaintiff’s action was barred by the Statute of Limitations. At the conclusion of the testimony in the case, the court directed a verdict for the defendant. The correctness of this ruling is now before us for determination.
It is contended .that it was impossible for the plaintiffs to furnish due proofs of the death of James Harrison until aided by the presumption arising from his unexplained absence for seven years ; and that this is a sufficient excuse for the delay of the plaintiffs in presenting their proof. It is said that the court held that the testimony established the fact of Harrison’s death in 1883, and that, while there was evidence to uphold a finding to that effect, the jury were not bound to so find, but might have fixed the time of his death at a later date. It is true that there is nothing in the testimony indicating the exact time or manner of the death of James Harrison ; but it is distinctly averred in the amended petition that he came to his death in 1883. It was essential to the plaintiffs’ case that this fact should be established; for if the death occurred at a later time, the policy became void by reason of nonpayment of assessments. The court was bound, in the absence of any amendment to the petition, to regard the death of Harrison in 1883 as an established fact.
The only remaining question, then, was and is whether the action was barred by the Statute of Limitations. Proof of death was not made until July, 1894,— more than ten years and a half after death occurred. It is well settled that, where some step must be taken by the plaintiff preliminary to his right to maintain an action, he cannot by delaying it indefinitely prolong the time for commencing his suit. Where the act to be done is wholly within his own control, he must perform it within a reasonably time ; and it has been said that a reasonable time can never exceed the period within which an action would have been barred by the Statute of Limitations in a case where no such preliminary step would be necessary. A. T. & S. F. Rld. Co. v. Burlingame Township, 36 Kan. 628, 14 Pac. 271; Rork v. Comm’rs of Douglas Co., 46 id. 175, 26 Pac. 391; Bauserman v. Charlott, 46 id. 480, 26 Pac. 1051; Kulp v. Kulp, 51 Kan. 341, 32 Pac. 1118. Even allowing to plaintiffs five years after the time they aver James Harrison came to his death to make proofs of loss, they should have been furnished to the defendant in 1889. They were not furnished for more than five years thereafter. It certainly cannot be said that proofs furnished in July, 1894, were within a reasonable time. If the plaintiffs’ cause of action should be held not to have accrued until that time, there would be a most unreasonable extension of the Statute of Limitations; for a suit might then be commenced at any time before July, 1899. It is clear that the proofs were not furnished within a reasonable time; and it must be held that whatever cause of action the plaintiffs may have had is barred by lapse of time.
The judgment is affirmed.
Johnston, J., not sitting. | [
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Johnston, J.
John C. Douglass, who owned several lots in the city of Leavenworth, brought this action to prevent the completion of a union depot building and other improvements in connection therewith, which he alleged the Leavenworth Depot and Railroad Company was erecting and had erected at a certain point within the City; and he asked to have the same abated as a nuisance. From the description given, it appears that the structure and improvements are extensive, and necessarily must have cost a large sum of money. The location of the union depot and the erection of the same was authorized by the City, through an ordinance passed for that purpose. It seems that more than a year elapsed from the time the first steps were taken toward the construction of the union depot before complaint was made or any action was begun by Douglass. In his petition he alleged that the depot building and improvements obstructed certain streets and the levee on the Missouri River, preventing him from using the streets and levee, and greatly injuring his property and buildings fronting thereon. He described several lots owned by him in different parts of the city, but all except one of them are so remote from the union depot that he cannot be said to suffer any special or particular injury beyond that suffered by the public generally. There is a serious question whether the lot referred to, to wit: Lot 3 in block 9, should be excepted from the number, or whether it can be said that the plaintiff suffers a special and peculiar injury distinct from that sustained by the public at large.
In pursuance of the ordinance, the union depot was located on a part of block 2, and on that part of Delaware Street north of block 2 and the south lot of block 3. In this way, the east end of Delaware Street, or that portion which extends from Main to Water Street, was occupied by the union depot building. In addition to this, the Company was authorized to occupy, and to lay tracks on and use portions of Water; Main, Cherokee and Choctaw streets. These privileges were granted upon the conditions that the Company should first acquire and dedicate for public, use as a street a lot in block 8, immediately north of that designated for the union depot grounds. They were also required to build a retaining-wall parallel with the river, to plank and maintain the streets, occupied by railroad tracks, in such condition that the passage of vehicles along and past them should not be obstructed, and the eastern end of Cherokee Street, which runs parallel with Delaware Street, should always be kept open and unobstructed for access to the levee and the Missouri River. There was a further provision that all the railroad companies which had roads in the city should have the use of the depot and the connecting tracks.
The improvements appear to have been made in accordance with the ordinance, and a new street was established between Main and Water Streets. Instead of Delaware Street extending between block 2 and block 3, as formerly, the new street was dedicated and established about twenty-five feet further north. In effect, the new street is an extension of Delaware street, and the only differences are that it is located about twenty-five feet further north and is only twenty-five feet wide. Lot 9 in block 3, owned by Douglass, extends from Main to Water Street, with two fronts, one on Main and the other on Water Street. It thus appears that, while a portion of Delaware Street south of block 3 was practically vacated by the City and is now occupied by the union depot building, another street has been provided, on the south end of the block, which affords access to Water Street and around to the Douglass lot on that street.
We learn from the petition and the plat attached thereto that while Water Street had been partly occupied by tracks and narrowed by the public improvements, Douglass still has ingress to and egress from his lot through the street. If Water Street had been en tirely closed, there would have still been unobstructed access to the property by Main Street; and if this were an action to recover damages, it would be an open question whether there was a liability. It has been ruled that before the owner of lots abutting on a street whereon railroad tracks have been laid and are in use by authority of the city council can recover damages, there must be such a practical obstruction of the street in front of the lots that the owner is denied ingress to and egress from them. The fact that the street or alley may be narrowed by the structure or made less convenient, or that the property may be made less attractive or desirable, will create no liability against the company, if the owner’s special use and right of entering and leaving his property has not been unreasonably abridged. A. & N. Rld. Co. v. Garside, 10 Kan. 552; C. B. U. P. Rld. Co. v. Andrews, 30 id. 590; O. O. C. & C. G. Rld. Co. v. Larson, 40 id. 301; K. N. & D. Rly. Co. v. Cuykendall, 42 id. 234; C. K. & W. Rld. Co. v. Inv. Co., 51 id. 600.
This is not an action for the recovery of damages, and we are not called upon to determine whether in eY6nt the Plaintiff below can recover damages by reason of the occupation of the streets by the Railroad Company. Instead of damages, he asks that the buildings and improvements, extensive and costly as they are, be declared a nuisance and abated. A railroad company cannot block up a street, nor deprive an owner of access to his property, without incurring liability; but even a right to damages does not necessarily entitle the party to the abatement of a structure authorized and built as was the one in question.
It appears to be the theory of the defendant in error that, because the building is over and upon Delaware Street, or on ground that formerly constituted a part of that street, it constitutes a nuisance, and may therefore be enjoined and abated. The difficulty with this contention is that the ground so occupied is not a street. The ordinance locating and authorizing the construction of the union depot and providing for the dedication of a new street, is in effect a vacation of that part of Delaware Street which is occupied by the union depot. “The Legislature, as the representative of the public, has plenary power over streets and highways, and as a general rule full discretion as to opening, improving and vacating the same.” Heller v. A. T. & S. F. Rld. Co., 28 Kan. 625. This power may be exercised directly by the Legislature, or indirectly by a municipal corporation; and the Legislature has authorized cities of the class to which Leavenworth belongs “to close and vacate any street or alley, or any portion thereof.” Gen. Stat. 1897, ch. 32, § 88, clause 42. In the twentieth clause of the same section, cities are invested with authority to regulate depots and depot-grounds and to provide for and regulate the construction and passage of railroads over the streets and public grounds of the city. Here, then, we have a public street vacated so that it may be devoted to a public improvement; and all done by express legislative authority. The location of a depot is so far a matter of public interest that private property may be condemned or appropriated therefor. Gen. Stat. 1897, ch. 32, § 102. And although the topography of the city and the routes by which the several railroads therein enter the city are not shown, it must be presumed that the Union Depot was located for the convenience and benefit of the public.
The vacation of the street and the location and construction of the Union Depot were within legislative control, and, all having been done within the authority and requirements of the law, the buildings cannot be regarded as either a public or a private nuisance. 16 Am. & Eng. Encyc. of Law, 1000. To accommodate the public the street was shifted a few feet further to the north, and, although narrowed to some extent, it affords access around the block to the property of plaintiff in error ; and even if it were a public nuisance, it is not easily seen how he suffers a special injury beyond that which is common to the public at large.
If there had been irregularities in the exercise of the authority or in carrying it out, the laches of the plaintiff below would be a strong reason for denying him the relief which he asks. From the record it appears that the ordinance was passed June 28, 1886, and the original petition in this case was not filed until June 80, 1887. From the averments of the petition it is'shown that excavations were made and large retaining-walls built, and further that the depot building was largely constructed. It thus appears that the work had been in progress for a long time, and large sums of money expended, without reference or complaint by the plaintiff below. He could have instituted a proceeding when the ordinance was passed and before the Depot Company had made great expenditures upon the improvements. To allow him to sit silent for a year, while this expensive work was going on, and then, without giving explanation or-reason, apply for and obtain injunction or abatement, would be .inequitable and unjust. Courts of equity may, and frequently do, refuse relief after undue and unexplained delay, and when injustice would be done by granting the relief asked. Abraham v. Ordway, 158. U. S. 416.
The objection that laches is not available as a defense when raised on demurrer cannot be sustained. It has been held that ‘ ‘ where it appears by the com plainant’s bill that the remedy is barred by lapse of time, or that by reason of his laches he is not entitled to relief, the defendant may by demurrer avail himself of the objection.” National Bank v. Carpenter, 101 U. S. 567; Speidel v. Henrici, 120 U. S. 387.
We think the plaintiff below failed to allege any ground for injunction or abatement, and therefore the judgment of the Court of Appeals will be reversed and the judgment of the District Court will be affirmed. | [
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Johnston, J.
This was an action of quo warranto to try the title to the office of county superintendent of public instruction of Trego county. At the general election held in that county in November, 1896, A. S. Peacock and Ira G. Balcom were opposing candidates' for the office named, and upon the face of the returns Balcom had the greater number of votes. After the votes had been canvassed and the result declared Peacock instituted a contest, alleging that votes of persons who were not electors of the county were illegally received and counted for his opponent, and also that illegal ballots were wrongfully and illegally counted for Balcom. After the filing of the verified statement for contest, and the giving of a bond, S. B. Cowick, probate judge of the county, selected W. J. Skelton and Theodore Courtney to act as associate judges of the contest, and fixed on January 5, 1897, as the time of trial. Another contest was begun in the county to determine whether John F. Barclay or Joshua Musgrave was elected as county commissioner, and Probate Judge Cowick designated other associate-judges to sit with him in the trial of that contest, and fixed January 2, 1897, as the time for the trial of the same. The contest court for the trial of the later-named contest was organized on January 2, 1897, and the trial was in progress at the time fixed for the contest between the parties to this proceeding. On January 5, the day named for the trial of the Peacock-Balcom contest, the court was organized, but it adjourned from day to day until the Barclay v. Musgrave contest was completed. When either court was in session Judge Cowick presided and continued to act as probate judge until January 11, 1897, when his term of office expired, and when he was succeeded by B. M. Tunnell. On that day the court for the trial of the PeacockBalcom contest was m session, and some time during the day Tunnell appeared and announced that he had qualified as probate judge and was ready to sit as presiding judge of the court. He testifies that no reply was made to his proposition, that the associate judges ignored him, and that one of them afterward told him privately that they would not sit with him. The associate judges, however, denied that they ever declined to sit with him in the contest, and they state that at the time of his proposition they did not know whether Cowick or Tunnell was actually the probate judge of the county, and therefore they at once adjourned the court until January 13, and that they then invited Tunnell to take his place in the court as the presiding judge. At that time Cowick, recognizing' that he was no longer probate judge, withdrew from the court, but Tunnell, although invited and requested to sit with the associate judges, refused to do so, and the trial then proceeded in the absence of the probate judge. Only preliminary motions had been heard and decided before Co wick retired from the court, and the trial upon the merits was not begun until after Tunnell became probate judge and had an opportunity to sit as a member of the court. The trial before the two associate judges resulted in a judgment that Peacock had received a majority of the legal votes cast in the county and was duly elected to the office of county superintendent of public instruction and entitled to his certificate upon qualification. It was further adjudged that the certificate of election which had been issued to Balcom should be annulled and set aside. Balcom having refused to surrender the office the present proceeding was brought in the district court, where judgment was given in favor of Peacock.
As the judgment rests mainly upon the findings and determination of the contest court, the validity of its organization and proceedings becomes important. The contest court is first attacked upon the ground that another court had been organized three days before and was in existence when the one in question was organized. It is. argued that there can be but one contest court, and that the one organized for the trial of the Barclay-Musgrave case was the court for the trial of all contests during its existence, and that therefore the one organized for the Peacock-Balcom case was illegal. We cannot agree with this contention. The court to be organized for the trial of contested elections is not of a m „ , permanent character. There is no fixed tenure or term nor is it created to try all contests that may arise during the term of the probate judge, nor during any other definite period of time. It is only called into existence when a contest is instituted by the filing of the verified statement and bond at the times and in the manner provided by statute. Gen. Stat. 1897, ch. 53, §15.
When the prescribed steps are taken and .a contest is begun, a court for the trial of the same is created. It is organized by the probate judge, who selects two associate judges to sit with him in the trial except when he is interested, and then the county attorney acts in his stead. Only those who are disinterested may be members of the court, and as there might be a number of contests in a county, and judges disinterested in one case might be interested in another, the Legislature deemed it wise to provide for the organization of a court for each contest when it arises. The associates are, therefore, named with reference to and for a single contest, and when the contest is completed and the court has adjourned their authority is ended. The language of the statute providing for the organization of contest courts and proceedings in contests for county offices indicates quite clearly, we think, that an independent court is organized for each contest. Gen. Stat. 1897, ch. 53, §§ 11-31. It was, therefore, competent for the probate judge to select and nominate associate judges for each of the contests instituted in Trego County, and the fact that one of them had been organized did not prevent the organization of another upon the filing of the statutory statement and bond. The probate judge selected and nominated associate judges for this case, and so far as appears they possessed the statutory qualifications and the proper preliminary steps were taken in the organization.
The claim that they were not duly appointed because the record fails to show that formal entry by the probate judge to that- effect was made, is without force. The record shows that they were nominated by the probate judge, that notice of their selection was duly served upon the contestee, and that they subsequently and in good time organized and acted as members of the contest court. As the probate judge presided in each of the cases, the court in the Peacock-Balcom case necessarily waited for the termination of the one first organized for the trial of the Barclay-Musgrave case, and the trial of the former was postponed from time to time until the probate judge was released from the latter court.
After the court had been organized as we have seen and some preliminary motions had been made and decided in the Peacock-Balcom case, Judge Cowick’s term of office ended. Tunnell, his successor, did not sit with the associate judges, and it is contended in behalf of Bal com that the proceedings and judgment of the contest court are without force because of the absence of the probate judge. As soon as Judge Tunnell had qualified and had gained possession of his office he was entitled to sit as a member of the contest court. The probate judge is a member of the court by virtue of his office, and the change of officers did not work a dissolution of the court nor make it necessary to rehear and determine the preliminary motions which had been previously heard and determined. The trial of the merits of the controversy had not been begun, and it was therefore the duty of Judge Tunnell to unite with the two associates in hearing and determining the merits of the controversy.
There is some dispute in the testimony as to whether Tunnell was given an opportunity to participate in the trial. On one side it is claimed that his application to sit as a member, of the court was refused, and, on the other that, instead of a refusal, he was requested to become a member of the court and proceed with the trial to the end, but that he declined to do so. This dispute has been settled by the trial court in favor of the claims of Peacock, and there being sufficient evidence to sustain the same, it must be taken as a fact that Tunnell had both notice and an opportunity to become a member of the court, and that his refusal to avail himself of the opportunity was without justification. The court, however, was not dissolved by his refusal or his absence. The organization of a contest court, once effected, cannotbe destroyed and the proceedings nullified by the wilful withdrawal or absence of one member of the court. The court is composed of three members, and although the associates are nominated by the probate judge, yet when they have been appointed and the organization has been effected their powers are equal to those of the probate judge, and the judgment of a majority of the court is effectual and controlling. While there is no specific provision to this effect in the statute relating to contests, we have the general statute which provides that “words giving a joint authority to three or more public officers, or other persons, shall be construed as giving such authority to a majority of them unless it be otherwise expressed in the act giving the authority.” Gen. Stat. 1897, ch. 1, § 8. It was, therefore, competent for the associate judges to proceed with the trial of the contest, and their judgment, which appears to be regular in form, is binding upon the parties.
The jurisdiction of the court is assailed because the bond for costs in the congest runs to the State of Kansas instead of to the contestee. The statute does not declare what shall be the form of the bond nor in whose favor it shall run, but simply provides that a bond shall be given by the contestor with security to be approved by the probate judge conditioned “to pay all costs in case the election is confirmed, or the statement be dismissed, or the prosecution fails.” (Gen. Stat. 1897, ch. 53, § 15.) There is no statutory requirement that the bond shall run to the contestee, and as it is for the benefit of the officers who may perform services in the contest and witnesses who may attend the same, no reason is seen why it may not properly run to the State. The bond given was approved by the probate judge, and we think it is available to any one entitled to costs as against the contestor.
The further claim that Peacock had forfeited his office for failure to file an official bond with the county clerk within twenty days after the cornmencement of his term cannot be sustained. It appears that he executed a sufficient bond, which was approved by the board of county commissioners, or at least by a tribunal assuming to act as such. There appears to have been some controversy in that county as to who were members of the board of county commissioners, but the board which was acting and which approved the bond met in the office of the county clerk, and so far as appears it was legally constituted. They approved the bond of Peacock on January 16, 1896, and it was filed with a person appointed by the board to act as county clerk. Subsequently the bond was recorded in the office of the register of deeds. It is not clear that a mistake by the county superintendent of public instruction in filing his official bond would operate as a forfeiture of his office, but however that may be there is nothing to show that a mistake was made or that he failed to comply with the statute in the giving of a bond.
The judgment of the district court will be affirmed. | [
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Allen, J.
The plaintiff in error, Willis, sold seventy-two acres of land to the Horton Real Estate and Loan Company and took back a mortgage for a part of the purchase money. The Real Estate and Loan Company conveyed a tract of five and three-fourths acres of this land to W. W. Whitead. Prior to the execution of this conveyance a releasé of the tract sold to Whitead was executed and recorded by A. F. Moore, as attorney in fact of Willis. In October, 1890, after the execution of the last mentioned conveyance, Willis commenced an action, against the Horton Real Estate and Loan Company, W. W. Whitead and others, to foreclose his mortgage. In June, 1891, astipulation was entered into by the attorneys for the plaintiff, W. W. Whitead, and the Real Estate and Loan Company, for a continuance of' the case to the next term of the court and for six months after the first day thereof, if the Real Estate and Loan Company should pay $1500 .on the mortgage debt; and providing that in case of failure to make such payment judgment might be taken against the Real Estate and Loan Company, and that $400 thereof should be made a personal judgment against Whitead and the first lien on the tract of land conveyed to him. In November, 1893, judgment was entered in accordance with this stipulation for the balance due on the mortgage and for the sale of the tract conveyed to Whitead for the payment of $400, in case the proceeds of the sale of the balance of the property should be insufficient to satisfy the judgment against the Neal Estate and Loan Company. On this judgment an order of sale was issued, and the sheriff was proceeding to sell the tract conveyed to Whitead, when this action was commenced by Frances Whitead and her husband, W. W. Whitead, to enjoin the sale on the ground that the property was their homestead. The case was tried, and the court found that the land was occupied by the plaintiffs as a homestead, but that, being within an incorporated city, they were entitled to only one acre, to be selected by them. On the findings a judgment was entered enjoining the sale of an acre, described by metes and bounds, and taxing the costs against ' the defendant Willis. He brings the case to this court, claiming that, by the repudiation of the stipulation and the judgment entered in accordance with it, the whole tract conveyed to Whitead is rendered /subject to the whole balance of the judgment in favor of Willis, amounting to $2178.98.
It has been contended by the plaintiff in error, in all the stages of this litigation, that the release of his mortgage, executed by A. F. Moore, as his attorney in fact, was invalid, and we are asked to pass on this question. It appears unnecessary to do so, or even to state the facts on which that contention arises, for it is apparent that the plaintiff in error must, in any event, fail in his effort to reverse the judgment of the trial court in this case. Beyond doubt, the plaintiffs had a homestead interest in one acre of the land. Mrs. Whitead was not a party to the action to foreclose the mortgage. Without her presence in court no valid foreclosure could be had, and the judgment as to the homestead was a mere nullity. The sheriff was proceeding without lawful authority. to sell it, and the trial court could not do otherwise than enjoin the sale. There is no merit in the contention that the claim of homestead was not made in due time, or that by claiming the whole tract as a homestead they lost their right to one acre of it. They were entitled to select that acre, and the court, when it decided that they were not entitled to the whole tract, yery properly permitted them to designate the boundaries of the acre they would retain. Peak v. Bank, 58 Kan. 485, 49 Pac. 613.
We see no error in taxing the costs against the defendant.
The judgment is affirmed. | [
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Doster, C. J.
This was an action to quiet title to a tract of land, brought by the defendant in error Worster, as plaintiff, against C. W. Smith, the plain tiff in error, as defendant. The court below made findings of fact which summarized are, that the land was under mortgage executed by one Kennedy; that the plaintiff Worster derived title to it through successive conveyances from the mortgagor ; that in the deed to him he assumed and agreed to pay the mortgage; that on September 21, 1887 he conveyed it by warranty deed to one F. E. Smith, who assumed the payment of the mortgage, and who in turn conveyed it by warranty deed to his wife, Julia A. Smith, who, however, did not assume the mortgage, and who thereafter, on July 3, 1889, together with her husband, executed a deed of it to their son, C. W. Smith, the plaintiff in error. This deed was not filed for record until May 17, 1890, prior to which time, October 17, 1889, suit was brought to foreclose the mortgage. To this suit Worster, the defendant in error, and F. E. and Julia A. Smith were made defendants. The plaintiff in error, C. W. Smith, was not made a defendant, because of the non-record of his deed and because of the plaintiff’s lack of knowledge of his claim to the land.
Judgment of foreclosure and for the amount of the mortgage was rendered November 8, 1889, against Worster and others' liable therefor. May 9, 1890, an order of sale of the land was issued, and on June 10, following, the land was purchased at the foreclosure sale by Worster, the defendant in error, for a portion of the judgment, soon after which he paid the remainder to the judgment creditor. This sale was confirmed June 30, 1890. Although the deed to C. W. Smith, the plaintiff in error, had been recorded intermediate the issuance of the order of sale and the sale of the land, the defendant in error Worster was ignorant thereof and of the said Smith’s claim of title. C. W. Smith, however, knew of the pendency of the foreclosure proceedings as they progressed. He never was in possession of the land, either personally or by tenant. Some other facts were found by the court, but in the view we take of the case it is not necessary to advert to them. They constitute additional grounds for affirming, as we do, the judgment of the court below.
The question at issue can be shortly stated. It is this : Can the grantee in a conveyance, with knowledge of the pendency of a-suit to foreclose a prior mortgage lien upon the land, brought and maintained upon the assumption that he had no interest in the subject-matter of the action, and who never, by possession of the land or otherwise, gave notice of his claim to it, withhold his deed from record until the case has progressed ,to judgment and the issuance of an order of sale, and then by filing it in the register’s office arrest the conclusion of the case and bring to naught the efforts that far made to convert the land into money for the payment of the debt; and when sued by the purchaser, can one of the judgment debtors who was legally bound for its payment, in an action to quiet his title, successfully defend upon the ground that he, not having been made a party to the case, had an equity of redemption or other interest in the land of which he had not been foreclosed and barred ? Our very decided judgment is that he cannot do so. C. W. Smith was a grantee of mortgaged premises. He was a grantee before suit upon the mortgage, but he purchased with knowledge of the existence of the mortgage. Pie knew that without voluntary payment of the mortgage debt by those obligated to such duty the mortgage would be foreclosed as against those supposed to be interested in the land. With knowledge of this fact he neglected to put himself in the way of receiving information of the fore closure proceeding when it was instituted. He failed to record his deed and to thereby impart notice of his rights, and to put upon his adversary the obligation to inform Mm of the foreclosure action. What then results from this neglect of duty ?
Section 21 of the act concerning conveyances of real estate declares —
“No such instrument in writing shall be valid, except between the parties thereto and such as have actual notice thereof, until the same shall be deposited with the Register of Deeds'for record.” Gen. Stat. 1897, ch. 117, § 21.
This statute therefore prescribes a penalty for the neglect of duty towards others and lack of diligence to protect one’s own interests. That penalty is that the unrecorded conveyance, except as between the parties thereto and those who have actual knowledge thereof, shall be invalid as long as it remains unrecorded. If, then, the deed of plaintiff in error was invalid until recorded it was as though he had no interest in the land until record was made. If he had no such interest until record was made, his rights dated from the time of record the same as though they had not been acquired until then. That being true, he was as a purchaser pendente lite. He was as though he bought pending the suit.
It cannot be claimed that an unrecorded deed is invalid for the time being simply because unrecorded, but that when recorded it carries the grantee’s rights back in time and effect to the period of purchase, as against those who have acquired rights meanwMle. The record of a conveyance gives it no such retroactive effect. Until recorded it is invalid ; until then it has in legal contemplation no existence. Any other construction would not only nullify the intent but would change the actual letter of the statute. Had another in good faith purchased the land from O. W. Smith’s grantors, he could have held it as against Smith. If therefore title by a purchaser of the land could have been thus acquired pending Smith’s failure to give notice of his own title to it, why could not rights as a mortgagee in foreclosure be likewise acquired pending the same failure to give notice? The statute does not decíate that an unrecorded deed shall be invalid as against subsequent purchasers or other particular classes of persons. It declares generally that such deed shall be invalid; and that means invalid as against all classes of persons, with any and all kinds of rights. If rights as a mortgagee in foreclosure could be thus acquired, could Smith thereafter do anything to deprive such mortgagee of his acquired rights? The answers to all these questions seem obvious. They do not need to be stated. What were the rights which the mortgagee, and for that matter all the other parties to the foreclosure action, acquired against C. W. Smith through his failure to record his deed? They were to institute and prosecute the foreclosure action upon the assumption that title to the land remained in the grantees of the last recorded conveyance., and hence to treat all unrecorded conveyances of which they might thereafter receive information as valid only from the receipt of the information ; and that means to treat the grantees in such conveyances as purchasers pendente lite.
Before C. W. Smith placed his deed upon record — that is, before he in legal contemplation purchased the land, a judgment of mortgage foreclosure had been .rendered against his grantors and sale proceedings ihad been commenced. That j udgment was res judicata. ;and the right to institute and conduct the sale proceedings under the status fixed by the -judgment followed as a necessary consequence. The principle thus stated was declared in Utley v. Fee (33 Kan. 689, 7 Pac. 559), wherein it was remarked :
“The title and estate of a person holding an unrecorded deed is, as to third persons without notice, wholly in the grantor, and the grantee is in privity with its [his] grantor, and any decree rendered against the grantor affecting the grantor’s title is also in effect a decree rendered against the grantee, and it equally affects his title ; and the decree is res adjudicata, as to the interests of all.”
In that case it was likewise remarked : “ Where a deed is recorded a long time after its execution, it probably takes effect, as to innocent third persons without notice, at the same time that it would if it were executed and recorded on the day on which it is recorded.”
No construction can be evolved out of section 20 of the act concerning convejmnces which militates against the above views. The declaration of that section that all subsequent purchasers and mortgagees shall be deemed to purchase with notice of recorded instruments from the time of their being filed for record means no more than it says. It simply establishes a rule of constructive notice. It does not assume to define rights, but only to declare a rule of notice as to rights. It gives to notice of rights no retroactive effect. On the contrary, it expressly limits the effect of such notice to the time of filing the instrument for record. Those rights therefore date only from the time of the notice as the origin of their existence. One of them perhaps, was the right to redeem in equity, but the right to stay a foreclosure proceeding, intervene in the suit and compel the parties to litigate the case anew is not one of them.
As opposed to these views, the case of Holden v. Garrett (23 Kan. 98), is cited and much commented upon.. In that case it was held that an unrecorded mortgage,, given before the levy of an execution issued upon a general judgment, would take priority over a sale of the land made after the mortgage was recorded. The rule thus announced lends no support to the contention of the plaintiff in error. As pointed out in that case, liens of general judgments and execution levies upon land, by the very terms of the statute, can be acquired only upon the actual interest of the judgment debtor. Liens upon apparent but not actual interests cannot be obtained. The decision in the case was rested upon the further ground that a mere judgment creditor is not a bona fide purchaser and parts with nothing to acquire his lien, as does a purchaser for value ; and, as a further ground of distinction, not adverted to in the case because not necessary to the decision, it may be remarked that a case in which a general judgment only, and not a specific lien is sought, is not a Us pendens as to third parties. No one not a party to such case can be charged with notice of it until the judgment is obtained, and inasmuch as the statute rests the lien of such judgment only upon actual and not apparent interests, the judgment itself does not become Us pendens as to the actual owner of the land. If in such case a sale were made with the conveyance or mortgage still unrecorded, the purchaser would acquire the land to the exclusion of the real owner, not because the suit, or judgment, or levy, or sale, or all of them together,'Constituted a Us pendens as to the grantee or mortgagee of the unrecorded instrument, but he would acquire it as he might do by voluntary conveyance from the owner of the apparent title, that is because he would buy in ignorance of the real ownership of the land. ■ However, should the conveyance hitherto unrecorded be filed for record before his purchase, and the real owner be thus disclosed, his rights as purchaser would in consequence be affected.
The question we have determined is not a new one although it has not often been before the courts. The views we express are in accord with all the decisions save that of Grant v. Bennett (96 Ill. 513), and even in that case a most vigorous dissent to the majority opinion was entered by Mr. Justice Dickey. The rule collected out of the several cases on the subject is stated in 13 Am. & Eng. Encyc. Law, 907, and to it, as briefly stated, we likewise subscribe.
“The holder of an unrecorded deed at the time a suit is commenced and lis pendens comes in force must be placed in the category of & pendente lite purchaser. This is specially true where the recording laws declare that the instrument shall be effective as against purchasers and creditors from and after the filing for record or recording. As between the parties to the instrument it is valid without reference to its record; but under such statutes the instrument does not become effective as against purchasers and creditors until it is recorded. So, if prior to such record a suit is commenced involving the property, the lis pendens would take precedence to the rights of a grantee under an unrecorded deed or mortgage, and such grantee or mortgagee could have no better right than if the instrument had actually been made after the lis pendens had come in force, for the recording, as in favor of such persons, is one of the essentials to its validity. This is not an exception to the rule of Us pendens, but an application of the rule.itself.”
The judgment of the court below is affirmed. | [
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Allen, J.
The parties to this action are very numerous, including Jacob, Grant and Leon Leu, partners as Jacob Leu & Sons, and very many of their creditors. The questions for consideration relate to marshaling of securities given by Leu & Sons for the benefit of two sets of creditors, one the plaintiffs in error, and the other represented by Waggener, as trustee.
Jacob Leu & Sons were dealers in stoves, tin and copper ware, etc., at Atchison and other places, and were insolvent. On May 29, 1894, they executed a mortgage covering all their stock in trade, notes and accounts, to the First National Bank to secure an indebtedness to it of $21,199.56. On the same day Jacob Leu and wife also executed a mortgage on the real estate, owned by him individually, to secure the same debt. On May 29 Leu & Sons executed a chattel mortgage to the plaintiffs in error to secure their respective demands, which was recorded on May 31. On the last mentioned date they executed a mortgage on their merchandise to W. P. Waggener, as trustee, to secure the creditors represented by him. This mortgage was made subject to the prior mortgages to the bank and plaintiffs in error. At the same time Jacob Leu and wife also executed to Waggener, as trustee, a mortgage on his land to se cure the same creditors who were secured by the chattel mortgage, and some others. This mortgage was, in terms, subject to the mortgage to the Bank. There was an intermediate chattel mortgage between the one given to the Bank and that to the plaintiffs in error ; and there were also numerous mortgages and judgments subsequent to those above mentioned. But the controversy in this case is between the plaistiffs in error on one side and the creditors represented by Waggener, as trustee, on the other, and relates to the rights of the parties with reference to the marshaling of the securities obtained by their mortgages. The personal property was taken possession of by the Bank, and with the consent of all the parties was sold by order of the court for $28,254.96. It was agreed that neither of the parties to the action should be prejudiced in their rights to resort to any of the securities given, by reason of the sale of the property. The real estate covered by the mortgage to the Bank was worth, approximately, $25,800. The claims of the plaintiffs in error aggregated something over $11,000, and those represented by Waggener to more than $8,000.
The contention of the plaintiffs in error is for the application here of the equitable doctrine that, where one creditor is secured by two funds and a subsequent creditor by only one of them, the senior creditor shall be required to first exhaust that fund by which he alone is secured, before resorting to the fund by which the junior creditor is secured. It is said that in this case the Bank, which has the senior lien, was secured both by mortgage on the debtor’s personalty and real estate ; that the plaintiffs in error were secured by the personal property only, and that under this equitable doctrine the bank should be required to sell the land for the payment of its claim, and leave the personal property to the plaintiffs in error to pay their demands ; or, if the Bank be permitted to take payment out of the proceeds of the personal property, that the plaintiffs in error should be subrogated to the extent of their claims to the security the Bank held under its mortgage on the land. It is contended that when Waggener took his subsequent mortgages he took them with full knowledge of all the facts, and that this includes notice, not merely of the existence of the prior mortgages and of their terms, but also of the plaintiff’s equitable rights as above stated. On behalf of the defendants in error, it is claimed that the facts of this case do not warrant the application of the equitable rule invoked. It is said that it does not extend to a case where the two funds belong to different persons; that in this case the debts are primarily partnership debts, payable out of the partnership property ; that the lands mortgaged were the individual property of Jacob Leu, to which partnership creditors had no right to resort until after exhausting the personal property of the partnership. It is further urged that this doctrine will not operate to defeat a lien definitely created by a subsequent mortgage.
The general doctrine assertéd by the plaintiffs in error is conceded, and has been recognized by this court in various cases. Burnham v. Citizens Bank, 55 Kan. 545, 40 Pac. 912; Gore v. Royse, 56 id. 771, 44 Pac. 1053. But this has its foundation solely on equitable considerations. There is nothing in this case from which we can say that in good conscience the claim of one creditor is superior to that of another. The priorities are to be determined solely from the diligence and success of the respective parties in obtaining security for their claims. The plaintiffs in error succeeded in obtaining a specific lien only on the personal property of the firm. The creditors represented by Waggener obtained a specific lien on the real property of Jacob Leu. They might with equal show of right insist that the Bank should exhaust the personalty belonging to the firm before resorting to the indidividual estate of Jacob Leu, who has exercised his right to prefer them in the application of 'his individual estate. We perceive no ground on which it can be declared that Jacob Leu had no right to prefer one creditor over another in the application of his personal estate to the payment of the firm debts. Nor does the fact of the insolvency of the firm affect this right. What the rule might be, if no one but Jacob Leu were opposing the claim of the plaintiffs in error, we are not called on to decide. It is sufficient for the purposes of this case to hold that the lien created by the mortgage to Waggener is superior to the claimed equities of the plaintiffs in error.
The judgment of the District Court must be affirmed. | [
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Doster, C. J.
The plaintiff in error, through the negligent condition and operation of one of its engines, set fire to the property of one Daniel Lane, damaging him to the amount of $7875. The property was insured by the defend ant in error, and it and the owner adjusted its liability under the insurance contract at $4875, but it did not immediately pay the amount. The plaintiff in error and the owner of the property adjusted his loss, over and above the amount covered by the insurance, at three thousand dollars. In the settlement with the plaintiff in error, the fact of insurance upon the property and the amount at which the Insurance Company’s liability had been adjusted were taken into account. Payment of the three thousand dollars was made by the plaintiff in error, and a receipt in full and release of damages was executed to it, conditioned to take effect upon payment of the sum due from the Insurance Company. This condition was inserted in the receipt and release, and was in the following language : “ This settlement based on fact of adjustment already had by insurance company at $4875 ; company not released until adjustment is paid in full. ”
This sum was presently paid in full by the defendant in error. It thereupon brought suit against the plaintiff in error to recover the amount so paid. A verdict and findings were returned in its favor and judgment rendered thereon, from which error is prosecuted to this court.
When insured property has been destroyed or damaged by fire occasioned by the negligent act of another than the owner, and the insurer has paid to the assured the amount of the loss or damage, the former, becomes subrogated to the position of the latter, and may maintain an action to recover from the wrongdoer the amount which by his contract he was compelled to pay. This as a rule of equity is so well established that particular cases need not be cited in its support or justification. 4 Joyce on Insurance, § 3574. Wood on Fire Insurance (B. & B. ed.), § 473; Ostrander on Fire Insurance (2d ed.), § 126. When the amount of the loss does not exceed the amount of the insurance, so that satisfaction by the insurer fully compensates the assured, the right of action against the wrongdoer vests wholly in the insurer, and he may, indeed must, under our Code, as the real and only party in interest, undertake the maintenance of the action for his reimbursement. When the loss does exceed the amount of the insurance, so that payment under the insurance contract constitutes but a partial satisfaction of the damages sustained, leaving a residue to be made good by the wrongdoer, a question has arisen as to whether the action against the wrongdoer for the recovery of the portion paid by the insurer should be undertaken in the name of the insurer or of the assured. The tendency of the courts seems to be to hold the latter to be the only competent person to bring suit. This upon the theory that an action for damages for a tort is indivisible and cannot be split up. In such cases the assured sustains towards the insurer the relation of trustee, in respect of such portion of the. amount recovered as the former under his contract has been compelled to pay. Norwich Union Fire Ins. Soc. v. Standard Oil Co., 59 Fed. 984.
' Inasmuch as in this case the loss exceeded the amount of the insurance, the plaintiff in error, upon the theory of the indivisibility of actions for tort, and of the trusteeship of the assured, contends that the insurer, the defendant in error, cannot maintain its' action. We do not, however, have for determination the question which the plaintiff in error presents. There was no splitting of a cause of action. Before the insurer brought its action there was a settlement with the owner, and a partial payment to him, by the plaintiff in error, of the damages he had sustained. The owner did not split his cause of action. He brought no action at all. Without bringing an action, he accepted payment from the plaintiff in error of such an amount as reduced his damages to the sum due from the Insurance Company, the defen'dant in error. The plaintiff in error made this as a partial payment for the loss sustained, and in the settlement papers expressly allowed to the owner a reservation of his right to demand and recover the balance due. If it could be. said that by the act of the owner there was a splitting of his cause of action, it was an act to which the defendant in error expressly assented. By so assenting it waived the legal consequences which might otherwise have resulted.
If, by the terms of the settlement, a right of action for the unpaid balance of damages was reserved to the owner, that right of action, upon the principle of subrogation before adverted to, passed to the defendant in error, the Home Insurance Company, upon the payment by it of the amount of its liability. That amount had been agreed upon between the insurer and the assured. The' plaintiff in error, at the time it made its partial payment, knew of the agreement between the owner and the insurer. The plaintiff in error knew that a right of action had been reserved, not only against itself, but against the insurer, for the unpaid amount. Its settlement was predicated upon the idea, in point of fact, of a payment by it of such portion of the loss as the Insurance Company was not liable for, with a reservation to the assured of a right of action against the insurer for the balance, and also against itself if the insurer did not pay.; and was also predicated upon the idea, in point of law, of a subrogation to the insurer of the assured’s right of action against it when the insurer made good the residue of the loss. The doctrine of the indivisibility of causes of action for tort does not apply to this case, and all objections of the plaintiff in error to the maintenance of the case, based upon the idea of the splitting of the original cause of action, were rightly overruled by the court below.
Other claims of error are made. They are that the evidence failed to show responsibility in the plaintiff in error for the fire in question ; that the answers to some of the special questions were contrary to the evidence and were conflicting and inconsistent between themselves ; that, under the pleadings, the defendant in error was required to prove its authority to transact insurance business in the State and that it failed to do so ; that the court erroneously instructed the jury in several particulars, and erroneously refused to give certain instructions asked. We have carefully examined these claims of error. All of them are unfounded.
It is also said that the court ewed in the admission of evidence. Citations are made to the record where it is said this erroneous evidence can be found, but no statement is made of the character of any of it, and no attempt made to point out wherein its admission was erroneous. We are not under obligations to consider the points upon which the plaintiff in error has seen fit to furnish us with such meager information.
The judgment of the court below is affirmed. | [
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Doster, C. J.
The Woodson State Bank, of W<?odson County, failed. The defendants in error, as its officers, with knowledge of its failing condition, received or assented to the reception of deposits in it. The plaintiff in error was one of the injured depositors. He sued to recover the amount of his loss. The suit was brought under chapter 47, Laws of 1879 (Gen. Stat. 1897, ch. 18, §74). The District Court rendered judgment in his favor. Error was prosecuted to the Court of Appeals. That court reversed the judgment, upon the ground that the action was for the recovery of a penalty and was barred by the one-year Statute of Limitations. 45 Pac. 927. From the judgment of reversal error is prosecuted to this court. The sole question for decision is this : Is the action upon a “ liability created by statute” ; or, is it “ upon a statute for penalty or forfeiture” ? Does the limitation provided by the second subdivision of section 12 of the Civil Code, General Statutes 1897, or, as formerly numbered section 18, apply ; or, does that of the fourth subdivision of the section apply?
We are quite clear that the action is “upon a liability created by statute,” and that the limitation of three years governs. The Court of Appeals was therefore in error. The general rule is that a statutory-obligation to pay damages which the common law does not give is “ a liability created by statute,” where the damages awarded are limited to compensation — limited to an amount which merely makes the injured person whole. The general rule also is that a statutory obligation to pay an amount beyond compensation, to submit to more than the simple redress of the wrong done, to pay not merely in respect of the deserts of the injured person but as punishment for the wrong done, is a penalty. Tested by these simple rules the case is easy of solution. The statutory obligation in question is a liability created by statute, because it is wholly limited to compensation. There is nothing of a penal character in the terms of the law which imposes the obligation. On the contrary, the statute and other enactments in pari materia clearly show that it was intended to be compensatory and not penal. Its title is as follows : “An act making officers of banking institutions responsible for the reception of deposits or the creation of debts, when such bank is insolvent or in a failing condition.” After declaring that the reception of deposits or the creation of debts by banking officers with knowledge of the actual or impending insolvency of the bank shall be unlawful, it further declares : “Every person violating the provisions of this section shall be individually responsible for such deposits so received and all such debts so contracted.” Nothing is allowed by it beyond the actual loss sustained. It is no answer to say that it may finally be that no loss has been sustained, because eventually the bank may pay in full. The loss is esteemed to be a present and entire one, because the deceit of the bank officers has involved the depositor or creditor in uncertainties and delays of repayment which constitute a violation of the contract between the parties.
At the same legislative session, another act upon the s§me specific subject, highly penal in its nature, was passed. It is chapter 48, Laws of 1879, and is entitled as follows: “An act providing for the punishment of officers of banking institutions, and private banks and their officers, for receiving deposits or creating debts when such banking institutions are insolvent or in a failing condition.” It declares that the reception or assent to the reception of deposits of money, or the creation of debts, by bank officers having knowledge of the actual or impending insolvency of their bank, shall be deemed larceny and shall be punishable as such. While, under this statute, no pecuniary fine is assessable to the injured person, it is hardly to be supposed that the Legislature intended by the two a,cts in question to provide for cumulative penalties. Rather is it to be supposed that one was intended to be penal and the other compensatory.
It is said, however, that a proceeding under the statute for the amercement of a sheriff is analogous to this case, arid that the statute authorizing amercement (Gen. Stat. 1897, Civil Code, § 478) has been held to be penal in character. Fuller v. Wells, 42 Kan. 551. That statute, however, provides for more than compensation. It declares that the derelict officer “shall on motion in court, and two days’ notice thereof in writing, be amerced in the amount of said debt, damages and costs, with ten per cent, thereon, to and for the use of said plaintiff or defendant, as the case may be.” Under this statute, not only the debt, but whatever may be legally provable as damages, and, in addition to the aggregate of these sums, ten cent, thereon, may be recovered. This goes beyond compensation. It is punitory.
It is also said that the statute giving the mortgagor of property a right of action for the recovery of one hundred dollars for failure to enter satisfaction of the mortgage upon payment of it, has been held to be penal in character, and the action thereon barred in one year. Gen. Stat. 1897, ch. 119, § 9; ch. 120, § 9; Wey v. Schofield, 53 Kan. 248, 36 Pac. 333. There is no analogy between these statutes and the one under consideration. The latter gives compensation — nothing more, and permits nothing less. The former gives a fixed sum irrespective of the damage actually sustained. Damages from failure to enter satisfaction of a mortgage may be very great. It may be that none whatever occur.. Whether great or small, or none at all, the amount recoverable is fixed arbitrarily at one hundred dollars.
Our conclusion is that the statute upon which this action was brought imposes a liability for compensation only, and in that respect is remedial of the common law. It does not declare a penalty quasi criminal in character.
The judgment of the Court of Appeals was wrong and must be reversed. | [
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Doster, C. J.
An information for grand larceny containing two counts was filed against Louis Tofte, the appellant. The first count was drawn under section 82, chapter 100, General Statutes 1897, which reads as follows :
“Every person who shall be convicted of feloniously stealing, taking and carrying away any money, goods, rights in action, or other personal property or valuable thing whatsoever, of the' value of twenty dollars, or more, or any horse, mare, gelding, colt, filly, ass, mule, neat cattle, sheep or hog, belonging to another, shall be deemed guilty of grand larceny.”
The second count was drawn under section 81 of the same chapter, which reads as follows :
“Whoever shall unlawfully pick the pockets of another, or unlawfully take from the person of another any personal property with intent to steal the same, shall upon conviction thereof be deemed guilty of felony, and be punished by imprisonment in the state penitentiary for any term not exceeding four years.”
In this connection it is important to notice that by section 82 of the chapter in question the punishment for persons convicted of grand larceny is a term of imprisonment “not exceeding five years,” and that the punishment for the offense defined by section 81 is a term of imprisonment “not exceeding four years.” It is also important to notice that sections 82 and 83 have been upon the statute books since 1868, while section 81 is an addition to the Crimes and Punishments Act made in 1886.
Upon the trial, at the close of the evidence in chief for the State, the defendant moved the court to compel the county attorney to elect upon which count of the information he would rely for conviction. He elected to stand upon the, first count. Up to that time the evidence had tended to show the defendant guilty of a larceny, as defined by section 81, from the person of the prosecuting witness, and had not tended to show him guilty of any other kind of larceny. None of tlie evidence thereafter introduced tended to show him guilty of any other kind of larceny than from the person. By appropriate motions and requests for instructions the defendant raised the question whether he could be convicted under the information as it then stood, which was a charge of grand larceny generally, and not a charge of larceny from the person. The rulings of the court upon the question thus raised were adverse to him. He was found guilty and sentenced to imprisonment for three and a half years. From this sentence he appeals and alleges here as his sole claim of error the rulings of the court upon the question stated. Our judgment is that these rulings were correct.
At the common law larceny was divided into simple, and mixed or compound. Blackstone defines simple larceny as “the felonious taking and carrying away of the personal goods of another.” Book 4, p. 229. Of mixed or compound larceny he says, “it has all the properties of the former [simple larceny] but is accompanied with either one or both of, the aggravations of taking from one’s house or person.” Book 4, p. 239. It would therefore seem that compound larceny is not in character or general definition in anywise different from simple larceny. It is different only in the aggravated circumstance of being committed in a house or from a person. Of larceny from the- house Blackstone says that although attaching to itself a higher degree of guilt than simple larceny, “yet it is not at all distinguished from the other at common law.” Book 4, p. 239. Speaking of a Statute of Elizabeth, which defined larceny from the person and attached to it the consequences of death without the benefit of clergy, the author says, “the statute creates no new offense, but only prevents the person from praying the benefit of clergy.”
Book 4, p. 242. If any views as to the nature of compound larceny and its inclusion within the general, definition of simple larceny different from those of Blackstone have ever been expressed by courts or text writers they have not been cited to us, nor are we aware of them. It follows therefore that the act of picking pockets or stealthily taking from the person, was an offense, under section 82, before the enactment in 1886 of section 81, by which it is particularly defined. Section 81 did nothing more than extend, as it were, the provisions of section 82 to cases of petty larceny from the person ; that is, it made the stealing from the person of property less than twenty dollars in value a felony which theretofore', by section 93, had been a misdemeanor only.
The purpose of statutes defining the offenses called by Blackstone mixed or compound larceny, is not to separate the interdicted acts from larceny generally, and to create of them offenses different from larceny generally, but the purpose is to attach to them consequences of guilt different from-larcenies generally. Ordinarily the punishments for these specially defined acts are severer penalties, and, such is the case under section 81, as to those larcenies of small values from the person which would otherwise be mere misdemeanors. By a strange departure from the ordinary rule in such cases, the maximum punishment for larceny from the person is, by section 81, reduced to four years, rather than extended beyond the maximum of five years prescribed for the general offense by section 82. This however does not indicate a legislative intent to create larceny from the person into an offense different in definition, character and ingredients from larceny generally, as defined by section 82. It may have been thought in the legislative judgment, that the maximum punishment for offenses of the particular kind should be reduced, rather than extended, or retained at the limit before fixed.
It is due to say, however, that the views herein expressed are apparently different from those of the Supreme Court of Georgia, which in'the case of King v. The State (54 Ga. 184), held that one indicted for simple larceny, a felony, being the offense of stealing national currency notes, could not be convicted as of felony, but only of a misdemeanor, because the evidence showed that the theft'committed was from the person, which, by other statutory provisions was made a misdemeanor only. The general line of reasoning of the court named would seem to be in opposition to that pursued by us, but considering the fact that by the Georgia code, larceny from the person was specially designated as a misdemeanor and excluded from the category of felonies, the two decisions are not necessarily at variance. .
Inasmuch as the sentence in this case, although pronounced under section 82, does not exceed the maximum prescribed by section 81 for the commission of the acts proved, no question as to its validity has been, or in law could be raised.
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Johnston, J.
Calvin Hayes was prosecuted by an information alleging that, in November, 1896, he was “ employed as the agent and bailee of Thomas W. Pelham ” ; and that “ said Calvin Hayes then and there, not being a clerk, apprentice or servant within the age of sixteen, years, did by virtue of said employment, then -and there receive and take into his possession two certain car loads of apples containing in the aggregate three hundred sixty-three barrels of apples for sale, for and in the name of and on the account of Thomas W. Pelham, his principal and bailor, and he, the said Calvin Hayes, did then and there sell said apples for the sum of $635.25, and said Calvin Hayes did make an accounting with Thomas W. Pelham in the sum of $469.73, leaving the sum of $165.52 entirely unaccounted for, though such an accounting was demanded from said Calvin Hayes by Thomas W. Pelham, and the said Calvin ITayes did then and there fraudulently, unlawfully and feloniously make way with, secrete, embezzle and convert to his own use, said sum of $165.52, without the assent of Thomas W. Pelham, contrary to the statutes in such case made and provided and against the peace and dignity of the State of Kansas.”
A motion to quash the information for insufficiency of averments was overruled ; and the defendant was found guilty of embezzlement and sentenced to confinement in the State Penitentiary for a period of two years. The principal question presented upon his appeal is as to the sufficiency of the information. It is conceded that the information was drawn and the defendant prosecuted under the latter part of section 88 of the Crimes Act, which makes the neglect or refusal of an agent to pay over or deliver to his employer or employers, upon demand, money or property which has come into his possession by virtue of his employment, embezzlement.
On the part of the defendant, it is contended that the information was fatally defective in several particulars : First, that it did not contain an averment of a demand and refusal to pay the $165.52, alleged to have been due from the defendant to Pelham ; secondly, the absence of an averment that his charges or stipulated commission had been deducted from the amount alleged to be due ; thirdly, the statement that the money had not been lost by the defendant by means beyond his control before he had an opportunity for restitution; and, fourthly, the want of an averment that Pelham did not consent to the use of the money by the defendant.
The sufficiency of the information is to be tested by the provisions-of the particular statute under which the defendant was prosecuted and convicted. He was charged, as we have seen, under the amendatory provision added to section 88 of the Crimes Act in 1873, and which was again modified in 1881. Laws 1873, ch. 83; Laws 1881, ch. 104. It in effect defines a new and distinct offense, and was aimed particularly at agents and attorneys who failed or refused to pay or deliver to their employers, on demand, money or property which came into their hands by reason of their employment. As will readily be seen, the matter of demand and refusal is an important element of the offense. The fact that the defendant may be indebted to Pelham, or did not promptly remit the amount due, does not constitute a crime; it is the failure or refusal to pay or deliver it over upon demand that is denounced by the statute ; and this being an essential ingredient of the offense, it was a necessary averment. There was. an allegation that an accounting was demanded, but none that the money due was demanded from the defendant. He might refuse to render an account or join in an adjustment of the credits and charges which should be made, and yet not be guilty of the offense charged. Until he has refused to pay or deliver, no offense has been committed.
The information should have stated that $165.52, or some other sum, was due, after deducting reasonable or lawful fees, charges or commissions for the services of the defendant, and also that his employer or principal had not given him permission to use the money demanded. These are included in the statutory definition of the offense, and as a general rule it is safe for a pleader to follow the terms or language of the statute in defining the offense. If the reasonable charges or commissions for which no credit had been given, exceeded or equaled the amount demanded, .there would be no criminal liability; nor would there be if the employer had given permission to the agent to use the money for his own purposes.
The language used in the information is perhaps sufficient to show that permission to use the money was not given, as it is averred that what was done by the defendant was without the assent of his principal.
The other exception to liability, that the money or property charged to have been unlawfully retained was not lost by means beyond the control of the agent, might properly have been alleged, but, as it is a matter peculiarly within the knowledge of the agent, proof of the same could not easily have been made by the prosecution, and therefore the failure to aver the exception can hardly be regarded as a fatal defect.'
The absence, however, of necessary averments, above referred to, required the sustaining of the motion to quash, and now compels a reversal of the judgment rendered. | [
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Johnston-, J.
This is a proceeding by S. Sleeper, a depositor and creditor, to enforce the liability of S. N. Norris as a stockholder of the Pawnee County Bank, of Larned, which failed and made a general assignment on July 3, 1893. Sleeper filed his claim with the assignee, in good time and as the law provides, and later he received and accepted from the assignee a dividend of ten per cent, upon his claim. Afterward, and while the assignment was pending, he brought an action against the bank, in the District Co'urtpand, on September 17, 1895, recovered a judgment against the bank for $2411. On September 19, 1895, an execution was duly issued upon the judgment, and the return made thereon by the sheriff was — “No goods or chattels, lands or tenements of the said defendant, the Pawnee County Bank, found whereon to levy.” Sleeper thereupon, and on November 7, 1895, brought this action in the District Court to charge the defendant as a stockholder. He-first filed a petition setting up the deposits and the original indebtedness upon which the judgment was obtained, as well as the judgment, and the issue and return of the execution. Upon a motion of the defendant, the plaintiff was compelled to state whether his cause of action was based upon the certificates of deposit or upon the judgment; and in the amended petition he set forth the judgment, omitting the original certificates of deposit. It was alleged and conceded that Norris was a stockholder in the bank, holding stock of the par value of $2500, of which the sum of $1750 remained unpaid.
In addition to the facts already stated, it was agreed that the assignee still had a portion of the corporate assets in his hands which were of less value than the total amount of the bank’s indebtedness ; and, further, that the indebtedness exceeded the value of the assets by at least the amount of the plaintiff’s judgment. There was a further stipulation that the bank had transacted no business since the date of the assignment, in July, 1893, and that the indebtedness upon which the plaintiff’s judgment against the bank is' based was a valid indebtedness.
The case was submitted upon the pleadings and agreed statement of facts, upon which the court rendered judgment in favor of the defendant. Do the facts stated warrant the enforcement of the liability of Norris as a stockholder in the insolvent bank, and were the proceedings taken sufficient for that purpose?
The contention is that the action is brought under section 50, chapter 66, General Statutes of 1897, and that it cannot be maintained, because the assets of the corporation had not been wholly exhausted before the action was begun. It is agreed that there were assets in the hands of the assignee, and, while the actual value is not shown, it must be assumed that they were of some value and were available for the purpose of paying debts. It is argued that, as the primary liability is against the corporation, corporate creditors cannot proceed against the stockholders until the property of the corporation is completely exhausted.
The nature of the liability and the time and mode of its enforcement are to be determined from the statutes, and not by the notions which particular courts might entertain as to what would be equitable and just in such cases. The provisions of the statute in question,- which fix the liability of a stockholder, are plain, and leave little room for interpretation. The remedy prescribed in said section 50 may be employed and the liability of the stockholder enforced whenever there cannot be found any property whereon to levy the execution. If there is property subject to execution, as was the case in Hoyt v. Bunker (50 Kan. 574, 32 Pac. 126), the judgment creditors cannot proceed against the stockholder under the section named. But when the property of the corporation is beyond the reach of execution, a right to enforce the stockholders’ liability is specifically given. No exceptions are made where there is property in the hands of an assignee or receiver which may ultimately be available for the payment of debts, and the court would not be warranted in interpreting such an exception into the statute. As has been said, the time and method of enforcing liability is with the Legislature. It might have provided a direct resort by creditors upon stockholders in the first instance. Instead of that, it seems to have been the legislative purpose that, while the corporation was solvent or had property subject to execution, the creditor should be required in the first instance to proceed against the corporation or its property, but when it ceased to do business, or had committed or suffered an act of insolvency by which it lost control of its own affairs and its property had been placed beyond the reach of execution, the creditors had a right to call upon the stockholders to satisfy their claims. It may seem like a hardship that stockholders should be required to pay when there is a large amount of assets in the hands of an assignee or receiver for distribution among creditors, but the settlement of such estates frequently occupies considerable time ; and should the enforcement of the liability be postponed until the final disposition of the assets? The liability of the stockholder was created for the exclusive benefit of corporate creditors ; and it was a question of policy with the Legislature, who should wait until the disposition of the assets, the stockholder or the creditor. It appears to have been determined in favor of the creditor. It may be, as contended, that the assignee can proceed against the stockholders and thus obtain a fund for 'the settlement of the corporate indebtedness; but, however that may be, the statute in plain terms confers this right upon the creditor himself, and hence the contention of the defendant that the right of action is vested exclusively in the assignee cannot be upheld.
The defendant argues that the plaintiff was mistaken in the adoption of remedies, and should have proceeded under section 49 instead of section 50. We find nothing substantial in this contention. The plaintiff had a valid judgment against the corporation and execution thereon was duly issued, and the return made shows substantially that there is no property upon which execution may be levied. From the facts disclosed by the record, it would appear that the plaintiff was authorized to proceed under either section, although the petition appears to have been drawn with special reference to section 50. The original petition set forth the character of the indebtedness upop which the judgment was based, and there is a stipulation in the agreed facts that at the time the judgment was rendered the bank was indebted to the plaintiff to the amount of the judgment and legal interest. It thus appears that, if the judgment were ignored, there is sufficient in the record to warrant a judgment against the stockholder upon the original indebtedness, under section 49. That section provides that the creditors ma7 enforce the" stockholders’ liability Up0n ^he dissolution of the corporation," and section 45 of the same chapter provides that, for the purpose of enabling creditors to enforce such liability, the corporation is deemed to be dissolved where it has suspended business for more than one year. As against the validity of the judgment, the defendant contends that, as the bank ceased to do business in July, 1893, it became dissolved and legally dead within one year thereafter ; and that when the judgment was rendered in September, 1895, the corporation was defunct and the judgment is therefore void. The provision of section 45, however, was not intended to extinguish the franchises or destroy the life of the corporation for all purposes. The cessation of business does not operate as a legal or complete dissolution of the corporation, but it is deemed to be dissolved for but a single purpose ; that of enabling creditors to enforce the individual liability of stockholders. For all other purposes the bank continued to be a corporation, in the eye of the law, and creditors had a right to sue the bank in its corporate capacity. Morawetz on Private Corporations (1st ed.), § 629. No reason is seen why the plaintiff could not obtain a judgment against the bank. The obtaining of the judgment was an attempt to enforce liability against the corporation and, not against the stockholder. For that purpose the bank was an existing corporation, subject to be sued., and when proper service of summons was had a valid judgment could be obtained against it.
The judgment obtained appears to be valid in every respect. An execution was issued thereon, which was returned nulla bona. The defendant is unquestionably liable as a stockholder, and no reason appears why the liability should not be enforced at the instance and for the benefit of the plaintiff. The proceedings had were sufficient for that purpose, and hence the judgment of the district court will be reversed and the cause remanded for further proceedings in accordance with this opinion. | [
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Allen, J.
Two cases are submitted together. Each is an action of ejectment brought by Annie P. Calloway and others to recover lands owned in his lifetime by James Calloway, under whom the plaintiffs claim the property as heirs. The defendants claim title by purchase from the executor of Calloway’s will.
Objections are made to the sufficiency of the records filed in this court and to the certificates of the clerk to the transcripts. We think, however, that as explained by the stipulations of counsel attached to the petitions in error they are sufficient. It appears from these stipulations that the certificate of the clerk, though apparently inconsistent with some of the papers included in the transcript, is really truthful; and that the cases were actually heard and determined on the pleadings appearing in the record, although some of the papers are entitled in other cases brought by the same plaintiffs against other parties.
The actions were commenced on July 21, 1888. On the twenty-eighth of June, 1894, amended and supplemental petitions were filed alleging the death of Annie P. Calloway on the tenth of October, 1890. No attempt was made to revive the action, and the fact of the death of Annie P. Calloway was first made to appear of record by the amended and' supplemental petitions. The first claim of error advanced by counsel is based on the refusal of the court to hold that the actions abated on the failure of the plaintiffs to revive the same within a year after the death of Mrs. Calloway. Section 422 of the Code of Civil Procedure (Gen. Stat. 1897, ch. 95, § 422), provides :
“Where there are several plaintiffs or defendants in an action, and one of them dies, or his powers as personal representative cease, if the right of action survive to or against the remaining parties the action may proceed, the death of the party or the cessation of his powers being stated on the record.”
Under the claim set forth in the amended petition, the interests of the parties plaintiff were severable. Annie P. Calloway, the widow, claimed one-half of the land> all(1 tlle 0ttier plaintiffs, who were children and the heirs of deceased ones, claimed the other half. It was not necessary for all of the plaintiffs to join in the action. Either of them might have brought an action to recover his separate interest. The plaintiffs other than Annie P. Calloway claimed one-half of the land in their own right, for which they might have maintained an action regardless of the wishes of Annie P. Calloway. Her death left this separable cause of action still in court, with no occasion for reviving it. After her death they succeeded by inheritance to whatever interest she had, and this gave to them an added cause of action, which they might properly set up by supplemental petition and tack to the cause of action in their favor stated in the original petition. Technical revivor was not necessary, for they did not necessarily continue to prosecute that branch of the action originally instituted by Mrs. Calloway in her own interest.
The answers to the amended and supplemental petitions allege that James Calloway, through whom both parties claimed title, died in Wilkes County, North Carolina, on the twenty-fifth of December, 1878, owning the lands in controversy, and a large amount of other lands in North Carolina and Missouri, and in Lyon, Greenwood and Coffey counties in Kansas ; that on the thirtieth day of December, 1878, his will was duly probated in the county of his residence ; that George H. Brown duly qualified as executor thereof ; that by the terms of the will bequests were given to and provisions made for his widow, Annie P. Calloway, and the executor was directed to sell the lands ; that a copy of the will was immediately delivered #to Annie P. Calloway and the personal property bequeathed to her was at once delivered to her by the executor; that on the nineteenth of February, 1879, the executor presented a duly authenticated copy of the will to the probate court of Lyon County, Kansas, where it was by order of said court duly recorded; that on the fourteenth of November, 1879, a duly authenticated copy of the will was recorded in the probate court of Coffey County, Kansas ; that on the seventeenth of October, 1879, Brown, as executor, sold to Robert Crane the lands in controversy in case No, 10524, and on the twentieth of December, 1882, said Brown, as executor, sold to Thomas T. Wallace the lands in controversy in case No. 10525, for the full value thereof at the time ; that the defendants immediately took possession, which they have held ever since ; that on the twenty-first of July, 1885, Brown, as executor, filed in the probate court of Wilkes County, North Carolina, a full report of the sale of these and other lands in Lyon and Coffey counties, Kansas ; that at the time of the sale of these lands, Annie P. Calloway, and each of the plaintiffs except the minor children, w^ere severally informed of the sales and the prices for which the real estate was sold, and that all the money arising from the sales was paid to plaintiffs, and for their use ; that the land was sold for its full, fair, cash value, and the plaintiffs received the full benefit of all moneys aris ing therefrom ; that in 1887, said Brown filed in the probate court of Wilkes County, North Carolina, his final account as executor, and instituted proceedings for a final settlement of his accounts ; that in said proceedings all heirs, devisees and legatees of said James Calloway were made parties defendant; that summons was duly issued and personally served upon each of the plaintiffs in this action ;' that L. D. Lowe, who sues as next friend of the minors named in the amended and supplemental petitions, was duly appointed guardian ad litem for all the minor defendants in such special proceedings, and in discharge of his duties as such guardian ad litem carefully examined all the reports and accounts of the executor ; that no exceptions were taken to said accounts, and on the final hearing the report of the executor was approved and he was finally discharged; that under the laws of North Carolina a widow was required to enter a dissent to the will of her husband, in the probate court, within six months after the probate of the will, otherwise she was deemed to assent to its provisions and to elect to take under it; that the widow did not enter a dissent at any time, but elected to take under the will, and did accept, receive, and retain all the benefits thereof ; and that the plaintiffs still retain all of the moneys derived from the sale of the lands by the executor.
The answers further allege the prosecution by the plaintiffs of suits against other defendants to recover the possession of other lands similarly conveyed by the executor of Calloway’s estate, and the judgments in such actions are set up as a defense and adjudication of the rights of the parties in these actions. The answers conclude with a general denial of all matters stated in the petitions not specifically admitted. To the matters set up by way of affirmative defense the plaintiffs demurred. Their demurrer was sustained, and the defendants below bring the case to this court, alleging error in this ruling.
The only material difference between the cases is that in one of them the sale was made by the executor before a copy of the will had been recorded in Coffey County, while in the other it was not made until afterward. Accepting, as we must, the truth of the averments of the'answer, it appears to us unnecessary to decide whether the subsequent recording °f the will in Coffey County gave operareiation) to the deed theretofore executed by the executor. Nor do we deem it necessary to discuss the question as to the effect of the widow's election in North Carolina ; though it would seem that in the nature of things but one election can be made, which must either accept or reject the will as a whole. It can hardly be that the widow may accept a legacy to be paid to her in North Carolina by the executor out of moneys to be derived from a sale of lands situated in Kansas, and also come into Kansas and elect to take one-half of the land itself. She cannot have the land and the money derived from its sale also. The answer states facts sufficient to equitably estop the plaintiffs from prosecuting their action. It shows that the doings of the executor were known to the plaintiffs, and that in due time he made full report of all of the sales made by him ; that he accounted for all the moneys received, and paid them directly to the plaintiffs or applied them for their benefit; that his accounts were duly presented to the probate court in the county of the domicile of Calloway; that the' plaintiffs were notified, had full opportunity of inspection, made no objections, received the money, and permitted the accounts of the executor to be allowed and his final dis charge to be granted by the probate court. We think this conduct forever estops them from claiming the lands. It is said that the moneys paid to them were the proceeds of many different tracts and that it is impossible to tender a return of the amount due each of the defendants without the taking of an account. The difficulty lies further back. The plaintiffs were called on to affirm or reject the fruits of the executor's administration of the estate, before his final discharge. It is now too late for them to disavow the validity of his acts.
The attempt is made, in the brief of counsel for defendants in error, to build something on the averments of the petition which allege collusion between the executor and the purchasers of the land. The general denial with which the answer concludes effectually disposes of this claim, and leaves the cases to be considered solely on the averments of the answer.
The plea of former adjudication contained in the third paragraph of the answer is not good, because the actions relate to other property claimed by other •defendants, and the demurrer to that part of the answer was properly sustained.
The judgments of the District Court are reversed with directions to overrule the demurrers to the second defense. | [
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Doster, C. J.
Mrs. S. E. F. Arter was the owner of a mill building, fixtures and machinery, and miller’s stock. It was insured by the plaintiff in error. The amount of the policy was payable in the event of loss to the defendant in error. The mill building, with other insured property, was destroyed by fire about 12 o’clock at night. In the application for the insurance the question was asked : “Do you agree to keep a watchman on the premises at all times when (the mill is ) not in operation? ” This question was answered, “yes.” This question and its answer, of course, formed a part of the insurance contract. Suit was brought upon the policy by the defendant in error, the assignee under the contingency of the loss which occurred. Verdict was returned and judgment rendered for him, and the defendant, the Insurance Company, prosecuted error to this court.
The testimony in behalf of the plaintiff tended to show that, in the evening preceding the fire, the mill was shut down for the night; that Mrs. Arter engaged one Randolph as watchman during the time it was shut down ; that he in turn engaged one Aldrich, the engineer of the mill, to act in his place ; that Aldrich was in and about the mill until 10 o’clock p. m., and then went to a tent about two hundred feet distant, which was used by him and his family for household purposes ; that he sat in the tent until he heard the alarm of fire ; and, going out, he discovered the mill in ñames. The special findings of the jury were in accordance with this testimony. Two questions arise. First. Was the suspension of the work of the mill over night a cessation of its operation, within the meaning of the agreement contained in the application for insurance ? Second. If so, was a watchman kept upon the premises during such non-operation of the mill ? In relation to these two questions the court below instructed the jury as follows :
“The language used in this agreement is to be taken in its ordinary sense and significance, and the agreement should be construed in the light of common observation and experience. Still some suggestions may be helpful. Thus, when a contract requires a thing to be done, but is silent as to the particular manner of performance, the law holds that it must be reasonable in this respect, having regard to the object and purpose of the stipulation, which, in this case, is the safety of the property. If it is done in the manner in which men of ordinary care and skill in similar business manage their own affairs of like kind, it is ordinarily sufficient. A mere temporary absence of the watchman from the premises in circumstances where a man of reasonable prudence would do the like, would not constitute a breach of the agreement. It does not require that the sole duty of the watchman shall be to watch, and that he shall always be present. He may perform other duties if they do not materially impair his usefulness as a watchman, and he may be temporarily or casually absent, whenever a man of reasonable skill and prudence exercising reasonable and ordinary diligence, would do the same. The functions and duties of a watchman vary in different places and circumstances, according to the danger to which the property is exposed, and the nature and value of the property. The court cannot, in the nature of things, precisely define what particular care a watchman should exercise. The jury must determine that in the particular case. The insured, however, was bound by her contract to have a watchman on the premises when the mill was not in operation and that watchman was bound to exercise reasonable care and diligence in attending to his duties, considering the situation, nature and value of the property, and the dangers that might reasonably be apprehended.
“It is proper, also, for me to say, that I do not regard the stoppage of the mill at night, while business is ordinarily and generally suspended, as ceasing to operate it, where it is regularly operated during the usual working hours each day. The words, ‘not in operation,’ refer to times when work in the mill is not carried on ; when it is lying idle, or shut down, and not in the usual nightly suspension of business. With these observations you must find as a question of fact whether the owner, Mrs. Arter, complied with her agreement respecting a watchman, you being the sole judges of the facts.”
We approve this instruction so far as it relates to the character and degree of watchfulness to be exercised under the agreement before quoted. Admitting that the shutting down of the mill for the night was a suspension of its operation within the meaning of the insurance contract, yet a watchman was kept on the premises within the terms of the agreement as defined by the court. The jury so found, and the rules laid down by them by which their conclusion was reached were correct. What we regard as a leading case, and one quite closely in point, is Hanover Fire Insurance Company v. Gustin, 40 Neb. 828. It was there held that “the statement in the application for the issuance of a policy of insurance on a planing mill, that ‘ a watchman is kept on the premises during the night and at all other times when the works are not in operation or the workmen present/ should receive a reasonable construction, and therefore the mere temporary absence'of such watchman within the time contemplated did not necessarily relieve the insurer from liability for loss caused by a fire which originated during such absence.”
The opinion following is cogent in reasoning, is replete with citations of authorities, and fully sustains the instruction of the court so far as the one question is concerned. Whether the court erred in that part of the instruction which defined the meaning of the words “not in operation,” we need not inquire. If it did, the error was not prejudicial, because the keeping of a watchman on the premises as though the mill “ were not in operation,” fulfilled all the requirements of the definition of those words as proposed by plaintiff in error.
A question is raised as to the amount of an attorney’s fee allowed, to the defendant in error. It is Avithout merit, however.
The judgment of the court beloAV is affirmed. | [
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Johnston, J.
F. M. Davis brought an action against the City of Holton to recover for injuries alleged to have been sustained by reason of a defective sidewalk on one of the public streets of the City. At the trial, plaintiff was the first and only witness, and testified that while walking down town about the middle of the day he was tripped by a loose board of the walk, caused to fall and suffer severe injuries. He further stated that he had passed over the street from two to six times every day for considerable time, and was familiar with the street and the condition of the walk ;> that about two weeks before the accident he observed that the street was out of repair, and gave notice to the street commissioner, who informed him that he would repair the walk, and later told him that it had been repaired. He also stated that he-had frequently noticed that there were loose boards upon that walk, and knew that it was not safe, and that upon the day-lie passed over it he had a general feeling that it was not a safe walk. He, however, stated that he was sixty-three years old, somewhat stiffened with rheumatism, and is careful when he walks; that he passed over the walk at - an ordinary speed, but did so with special care. Some of his answers were somewhat confused and conflicting with reference to his knowledge of the condition of the walk and the care exercised by him on that occasion.
When he had concluded his testimony the defendant asked the court to instruct the jury to return a verdict for the City, for the reason that the plaintiff knew of the defects at and before the time of the accident and did not exercise proper care to prevent the accident. This motion the court sustained, and directed a verdict in favor of the defendant. «
The ruling cannot be sustained. The testimony does not clearly and conclusively show contributory negligence, as it must to warrant an absolute direction of a verdict for the defendant. It is true that some of he answers of the witness as to the care exercised appear.to be somewhat contradictory; but the plaintiff had not rested or submitted his case. Even if his evidence is weak and inconclusive, he might have supplemented and strengthened it by other evidence if he had had an opportunity to offer the same ; but as soon .as he left the witness stand the court arbitrarily closed the case by directing the verdict. His testimony on • direct examination was to the effect that he knew the ■walk had been out of repair, but had been informed -.that it was repaired, and that he was exercising care :at the time of the injury. He may have felt, as he stated, that even with repair it was still an old and ■unsafe walk, but it does not appear that he could have reached his destination by another or safer route.
Knowledge of a defect in a street on which, injury occurs is not always a bar to a recovery. It was held, in City of Emporia v. Schmidling (33 Kan. 485, 6 Pac. 893), that even a knowledge that it was somewhat defective would not debar one from the use of the street’, nor would such use with notice that it was unsafe or out of repair necessarily constitute contributory negligence. See, also, Langan v. City of Atchison, 35 Kan. 326, 11 Pac. 38; City of Horton v. Trompeter, 53 Kan. 150, 35 Pac. 1106.
Granting that there was a contradiction in the answers of the plaintiff, it was for the jury to determine which answers were to be believed, and whether the plaintiff in passing over the dangerous walk, knowing its condition, exercised due care. In .directing a verdict the court invaded the province of the jury, and therefore the judgment will be reversed and the cause remanded for a new trial. | [
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Doster, C. J.
This was an action to recover the amount of a promissory note and to foreclose a mortgage given to secure it, brought by plaintiff in error against Peter Busenbark, the maker of the two instruments.
To the action, Newell P. Busenbark and Alice, his wife, and A. J. Eggleston and Sarah, his wife, were made defendants, under an allegation that they “ have or claim some interest in, or title to the said real property, but the same if existing, whatever it may be, is subject and inferior to the lien of plaintiff’s said mortgage. ” The prayer for j udgment against the four last named defendants was :
'"‘That said mortgage be declared the first lien on said premises, and that the same be ordered sold af ter six months’ stay after said judgment, without appraisement, and the proceeds applied, after the costs of this action and the costs of such sale, and tax liens thereon, to the payment of plaintiff’s said mortgage lien, and the balance, if any, applied as the court may direct; and that after said sale said defendants, and all thereof, be forever barred and enjoined from setting up, or claiming any interest in, or title to said described premises, or any part thereof, with writ of possession out of the office of the clerk of this court to the purchaser at said sale, and for such other and further relief as to the court may seem equitable and just, and for costs of suit.”
To this petition, the defendants Newell P. and Alice Busenbark filed their separate answer, first denying all the allegations of the petition, except that they had and claimed an interest in the mortgaged property, and continuing as follows :
“They are and long have been'the owners in law and equity of the mortgaged property, and are and long have been in possession of the same, and were-in the open and notorious possession of the same at and before the time the said plaintiff claims to have procured his mortgage thereon, and were then the owners of said property, as plaintiff and all said co-defendants well knew at the time said mortgage is claimed to have been given and received; and that said Peter Busenbark at the date of said mortgage had no interest in said property, as he and said Egglestons and said plaintiffs well knew. Third: They deny that said plaintiff is the real party in interest hei’ein. Fourth: They allege that said mortgage was given without consideration, and the consideration tlierefor has never been paid, and that the same was givexx and received for the pux'pose of defrauding them, and is null and void. Fifth: They pray that the plaintiff take nothing by his petition, and tl\at they be allowed to go hence without day, and recover their costs herein, and fxxrther pray, that if the matters and thixxgs in issue, upon the pleadiixgs herein are tried and determined, they be decreed to be the ojwners of said real estate, and tliat plaintiff and said c'o-defendants, and any and all parties whomsoever claiming by, through, or under them be forever enjoined and barred from setting up and claiming any interest herein adverse to these defendants.”
The defendants Peter Busenbark and A. J. and Sarah Eggleston, for their separate answer, filed a general denial to both the plaintiff’s petition and the cross-petition of the defendants Newell P. and Alice Busenbark ; and the plaintiff, for reply to the separate answer and cross-petition of the defendants Newell P. and Alice Busenbark, filed a general denial.
Upon the issues thus formed, the defendants Newell P. and Alice Busenbark demanded a jury, claiming that the action against them was in reality one of ejectment to recover the land in question, and that they were not only entitled to a trial by jury, but in reality to a second trial, as a matter of statutory right, should the verdict first rendered be adverse. This demand was refused ; to which refusal exceptions were taken. The case was tried to the court, which found for the plaintiff and rendered judgment accordingly. From this judgment error was prosecuted to the Court of Appeals. That court reversed the judgment, holding with the plaintiffs in error before it, the defendants in error here, that a jury was demandable as of right, and remarking in the opinion :
.“Although the action is in form one to foreclose the mortgage and to obtain judgment upon a promissory note which the mortgage was given to secure, the ulterior purpose was to determine the right of the plaintiffs in error to the property, or, in other words,, to recover the property from them, they being in possession.” Busenbark v. Park, 6 Kan. App. 1; 49 Pac. Rep. 682.
From this order of reversal the defendant in error in the Court of Appeals, the plaintiff in the District Court, prosecutes error. >
The defendants in error in this court, Newell P. and Alice Busenbark, move to dismiss the petition in error because the case does not involve the title to real estate, and is, therefore, not appealable, as a matter of right, under section 14 of the Act of 1895 creating the Courts of Appeals. In the same breath, as it were, they contend that they are entitled to a trial by jury because the action against them in the court below-was in effect ejectment, to dispossess them of their land. The plaintiff in error in this court resists the motion to dismiss by agreeing with the defendants in error that the case does not involve the title to real estate; saying that it does not do so either as an ejectment action or otherwise, and, therefore, that the opposing party was not entitled to a jury trial; but he further says, that inasmuch as the Court of Appeals erroneously decided that the action did involve the title to real estate, such decision was for the time being the law of the case and justified an appeal to this court as a matter of right.
It will be observed that the action of plaintiff in error here, the plaintiff in the court below, was for the recovery of money and for the foreclosure of a mortgage upon the land in question, and that the defense to such action was title in the defendants and not in the mortgagor at the time the mortgage was executed. While it is true that in this State questions of land title may be litigated in actions to foreclose mortgages, yet in such cases the questions arise incidentally only, and the determination of the claim of title is not the main purpose of the action. The majority of the court do not think that cases in which assertions of land title are made merely for the purpose of defeating claims of lien, and not for the purpose of determining the rightfulness of conflicting claims to title between rivals for the ownership of land, fall within the scope of section 14 of the act cited. Unlike the Court of Appeals, they do not view the case as one the ulterior purpose of which was to recover the land from the defendants Newell P. and Alice Busenbark. Neither the petition of the plaintiff in the court below nor the answer of the Egglestons, can be assimilated to an action of ejectment. The answer of the two Busenbarks is in the nature of a cross-petition to quiet title ; but in actions to quiet title jury trials are not allowed as a matter of right, because such actions are equitable in their nature, and were not before the adoption of our Constitution cases triable by jury. The declaration of the Constitution that “the right of trial by jury shall be inviolate” applies only to such cases as were triable by jury at the time of its adoption, with, perhaps, rights of action, since then created, of a character similar to those'in which juries had theretofore been allowed as of right. The majority of the court are therefore of the opinion that, so far as the reason given by it for reversing the District Court and ordering a jury trial is concerned, the Court of Appeals was in error. The writer does not assent to the proposition that questions of title to land are not involved within the meaning of section fourteen of the act creating the Courts of Appeals in cases where defendants to mortgage foreclosure actions oppose title paramount to the lien claim.
Whether the two Busenbarks were entitled to a trial by jury upon their answer alleging lack of consideration for the plaintiff’s mortgage and attempt to defraud them by giving it, we express no opinion. Such question has not been argued before us.
The petition in error is dismissed, not being allowable to this court as a matter of right.
Doster, C. J., dissenting. | [
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Johnston, J.
The matter in controversy between the parties to this proceeding is the validity, of an attempted forfeiture of the rights obtained under a purchase .of school land. A quarter-section of school land in Logan county was sold on January 9, 1886, to W. M. Forbes, who paid one-tenth of the purchase price and obtained a certificate of purchase. The interest on the deferred payments was to be paid annually by the purchaser, as the statute requires. Shortly after the purchase, Forbes transferred his interest to The Abernathy Furniture Company and Miller Hall, and made an assignment of the certificate of purchase to them. Afterward, these joint owners paid the interest upon the unpaid purchase price, annually, for a period of about seven years, for which the county treasurer executed receipts, and these were presented to the county clerk, where proper credits were given. When the parties again tendered an annual payment, the county treasurer refused to accept the same, claiming that there had been a forfeiture of the purchasers’ rights. The proceedings in forfeiture were based upon a notice directed to the Abernathy Furniture Company alone, notifying it that there was $51.84 annual interest due, and that if it failed to pay that amount, together with the costs of the proceeding, withiü sixty days from the time of service, that the purchasers would absolutely forfeit all right and interest in the land. An attempt was made by the sheriff to serve this notice, and the following is'the return which he made: “Received this notice this 10th day of June, 1895 ; served the same by going upon the within described land and finding no one in possession — the within named Abernathy Furniture Company not found in my county — I therefore posted a copy of the within notice in the county clerk’s office of Logan County, Kansas, June 13, 1895. T. J. Healey, Sheriff.” No other or different notice was issued, nor was there any other or better service than the one above described.
The forfeiture cannot be sustained. There was no attempt to give notice to Miller Hall, an assignee of the original purchaser. It appearg t]ia^ assignment of the rights of the original purchaser to the plaintiffs herein had been brought to the notice of the officers, and therefore the assignees are to be treated as the purchasers, and notice to them of the proposed forfeiture was essential. Oberlin L. T. & B. Co. v. Flinn, 58 Kan. 83; 48 Pac. 560. In this case no notice was given to the original purchaser, and that attempted on the Abernathy Furniture Company does not comply with the statutory requirements.
As will be observed, the return of the sheriff states that the company was not found in his county, and that therefore he posted a copy of the notice in the office of the county clerk. Notice by posting is only warranted where the “purchaser cannot be found, and no person is in possession of said lands.” Gen. Stat. 1897, ch. 65, § 27. The statement in the return that the purchaser was “not found” is not the equivalent of the statutory requirement that he “cannot be found.” It is apparent from the language of the statute that the Legislature intended that every reasonable means should be employed to find the party in the county, and make personal service on him ; it therefore became the duty of the sheriff to make diligent search and inquiry, so that he could truthfully say and return that the purchaser “cannot be found.” Until this is done constructive service is not justified.
It is also insufficient in respect to the possession of the land. The return states that when he went upon the land he found no one in possession ; but the fact that no one actually resided thereon or was actually present there at the time of the sheriff's visit, does not prove that there was no possession. In oi’der to be in posses-session, a person is not required to be personally present on the land all the time, and the return of the sheriff does not negative the fact that some one was in possession of the land at the time of the attempted forfeiture.
The return also fails to show that the notice was posted in the manner required by the statute. It is required that it shall be posted “in a x conspicuous place' ’ in the office of the eoun^y clerk, and a return is insufficient which merely states that it was posted in the county clerk's office. Knott v. Tade, 58 Kan. 94, 48 Pac. 561.
To effect a forfeiture there must be a strict compliance with the statutory requirements. Unless notice is given to the purchaser as the statute provides, there is no jurisdiction to declare a forfeiture, and any proceeding based on insufficient notice is without force.
The facts set forth by the plaintiffs entitled them to the relief which they ask, and, as the case was finally submitted on the averments of the alternative writ, it follows that the peremptory writ must be allowed. | [
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Johnston, J.
The Rock Island Lumber & Manufacturing Company brought this action to recover from the Board of Education of the City of Wellington $2,596.38. In its petition the Company alleged in substance that, on August 21, 1890, A. R. Elliott entered into a contract with the Board to furnish the material and erect a school house on 'ground owned by the Board ; that Elliott purchased from the Com pany lumber and building material to be used in the erection of the school building, and which were so used, of the price and value of $6,049.93 ; that Elliott paid to the Company on this account $3,453.55, and that there remained due on November 18, 1891, for lumber and building material so purchased and used, $2,596.38. It was alleged that in contracting with Elliott the Board had wholly failed to take from him the bond provided for in paragraph 4747 of the General Statutes of 3889 (Gen. Stat. 1897, ch. 96, § 35), and that Elliott became wholly insolvent, a fact not known to the Company until the material had been furnished. It was also alleged that the Board had not paid Elliott the full value of the labor performed and the materials furnished and used by him in the construction of the school building, and, further, that but for the neglect of the Board to take the bond from Elliott, the Company could have recovered payment of its entire bill against him, and that the failure and neglect of the school officers to take the bond had created a liability against the Board of Education to the full amount that remained unpaid on plaintiff's account. The District Court sustained a demurrer to the petition, and no amendment being made, gave judgment in favor of the defendant. Of this ruling the plaintiff complains.
The only question we have for consideration is whether the petition states facts sufficient to constitute a cause of action against the Board of Education.
There is no averment that the Board had failed to pay the contract price of the building, nor that it had ever agreed to pay plaintiff for the material furnished to the contractor. No steps appear to have been taken in order to secure a lien upon the building, but the plaintiff relies for a recovery against the Board upon its failure to require the contractor to give the statu tory bond provided for in paragraph 4747 of the General Statutes of 1889. It jirovides ;
“Whenever any public officer shall, under the laws of the state, enter into contract in any sum exceeding one hundred dollars, with any person or persons, for purpose of making any public improvements, or constructing any public building or making repairs on the same, such officer shall take from the party contracted with a bond with good and sufficient sureties to the state-of Kansas, in a sum not less than the sum total in the contract, conditioned that such contractor or contractors shall pay all indebtedness incurred for labor or material furnished in the construction of said public building or in making said public improvements.”
There is a further provision that the bond shall be filed in the office of the clerk of the district court, and that it shall be available to persons who furnish the labor or material, or their assigns ; but that no action can be brought upon the bond after six months from the completion of the improvements or buildings.
While the statute specifically requires a public officer to take the bond, it does not provide that the negíect of an officer to perform the duty enjoined raises a liability against the public corporation for which he acts. A ^imsi-municipal corporation, like a school board, is never liable for the consequences of a breach of public duty or the neglect or wrong of its officers unless there is an express statute imposing the liability. Eikenberry v. Twp. of Bazaar, 22 Kan. 556; Comm’rs of Marion Co. v. Riggs, 24 id. 255; 1 Beach on Public Corporations, § 739. No language in the statute imposes such liability or indicates a legislative purpose that public corporations shall suffer a penalty for the neglect of their officers. Whatever liability may be incurred by the officers themselves for a breach of public duty, it is certain that in the absence of an express statute im posing such liability the municipalities cannot be held liable for their neglect. We have a statute, affecting private persons, which provides that the giving of a bond by a contractor will change the liability of parties in such a way that no lien will attach under the act. Gen. Stat. 1889, ¶ 4745; 1897, ch. 96, § 34. It has beeu held, however, that the statute under consideration does not supersede the mechanics’ lien law, but, rather, that it gives an additional remedy to laborers and material-men. Comm’rs of Jewell Co. v. Manufacturing Co., 52 Kan. 253, 34 Pac. 741. It was doubtless intended, too, as an additional protection to municipalities against liability for liens and claims which might develop after the contract price for buildings or improvements had been paid. But, clearly, it neither took away any existing remedies from parties furnishing labor or material, nor created any new liability against public corporations.
There is no reason why the plaintiff should have been misled or prejudiced by the failure of the officers to require a bond from the contractor. It is required to be taken when the contract is entered into, and when taken is placed on file in a public office. An inquiry by the plaintiff at that office would have disclosed the fact that no bond had been taken, and the Company might then have protected itself by claiming a lien as the statute provides.
There is no averment in the petition upon which a liability against the Board can be based. As has been stated, the Board does not appear to have assumed this indebtedness of the contractor in anyway, nor is there anything showing that it has failed to pay the contractor the agreed price for the structure. There is an averment that it had not paid the full value of the labor and material used in the construction of the building, but that is not the measure of its liability. It cannot in any event be held liable for an amount in excess of the contract price.
We think the court ruled correctly in sustaining the demui'rer to the petitioxx, and its judgment will therefore be affirmed. | [
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Leben, J.:
The sentence for theft may be enhanced to presumed prison — rather than probation — if the defendant has three or more prior felony-theft convictions. But a prior conviction used to enhance a penalty can’t be counted in the criminal-history score, which affects the length of imprisonment.
When the district court sentenced Brian Williams for theft, Williams had four prior felony-theft convictions. The district court used three of the convictions for the sentence enhancement to prison and counted the fourth in determining Williams’ criminal-history score. Williams argues that because the statute providing for sentence enhancement applies when there are “three or more” convictions, all of his past convictions are used to enhance his penalty and thus can’t be counted for criminal-history purposes. Essentially, he argues that all of the convictions have been “used up” in enhancing his penalty.
But similar Kansas sentencing statutes have been interpreted to “use up” in sentence enhancement only the minimum number of past convictions required to trigger the enhancement, while counting any remaining past convictions in the defendant’s criminal history. We find no meaningful difference between the statutes at issue in these past cases and the ones at issue in Williams’ case, and we therefore conclude that the district court correctly sentenced Williams.
With that overview of the legal issues, let’s briefly review the specific facts and rulings that have brought the case to our court. Williams pled guilty in 2010 to 15 counts of theft by deception, and he had four prior theft convictions. The presentence-investigation report allocated three of the prior convictions for the purpose of enhancing Williams’ penalty from presumed probation to presumed imprisonment. The report allocated the fourth prior theft conviction to Williams’ criminal-history score. With one prior nonperson felony, his criminal-history score was G (one prior nonperson felony) rather than the lowest score, I (no prior felonies and no more than one prior misdemeanor). The district court accepted the method for considering the prior convictions suggested by the presentence-investigation report, which calculated Williams’ criminal-history score as G for the base-offense sentence.
This change in the criminal-history score from I to G increased Williams’ presumptive prison term for the base offense from one ranging from 5 months to 7 months to one ranging from 7 months to 9 months. The Kansas sentencing statutes use the defendant’s full criminal history when calculating the base sentence. (Here, since all of Williams’ crimes were the same, the base sentence is simply applied to one of the 15 theft convictions.) Then the other crimes of conviction are sentenced based on a criminal-history score of I. The judge has the discretion to make the sentences concurrent, in which case they all run at the same time, or consecutive, in which they are added together. K.S.A. 21-4720(b).
On July 7, 2010, the district court sentenced Williams to 18 months in prison. That was the maximum allowable sentence, even with consecutive sentences, because his sentence could be no longer than double the sentence on the base offense, which was 9 months. See K.S.A. 21-4720(b)(4). Williams appealed, challenging the length of his sentence based on the way the district court used the past convictions both to enhance his sentence and, for the fourth prior conviction, to affect his criminal-history score.
We turn next to the statutes at issue. We will discuss the statutes as they stood at the time Williams committed his offenses, February and March 2010. See State v. Denney, 278 Kan. 643, 646, 101 P.3d 1257 (2004) (holding that the criminal statutes in effect at the time of the offense are controlling). As part of the recodification of the Kansas criminal code, effective July 1, 2011, these statutes have since been repealed and reenacted under new numbers, but the substantive provisions have not been changed.
Two statutes are directly involved here, K.S.A. 2009 Supp. 21-4704(p) and K.S.A. 21-4710(d). (K.S.A. 2009 Supp. 21-4704(p) has been recodified as K.S.A. 21-6804(p), and K.S.A. 21-4710(d) has been recodified as K.S.A. 21-6810(d)(9), effective July 1,2011. See L. 2011, ch. 100, sec. 21; L. 2011, ch. 30, sec. 78.) K.S.A. 2009 Supp. 21-4704(p) provides that the sentence for felony theft shall be presumed imprisonment when the person “has any combination of three or more prior felony convictions” for theft. K.S.A. 21-4710(d)(ll) provides that all prior convictions will be considered and scored for criminal-history purposes except for offenses that “enhance the severity level or applicable penalties” for, or “are elements of,” the present crime of conviction.
The question before us is one of statutory interpretation, so we must review the matter independently, without any required deference to the district court. See State v. Jolly, 291 Kan. 842, 845-46, 249 P.3d 421 (2011). As a general rule, criminal statutes are interpreted strictly in favor of the defendant, meaning that we construe any ambiguity in the statute’s language in the defendant’s favor. But this rule of strict construction is subject to the qualification that our ultimate interpretation of the statute must be reasonable so as to carry out the intent of the legislature. See State v. Jackson, 291 Kan. 34, 40, 238 P.3d 246 (2010).
Williams was convicted of felony theft in violation of K.S.A. 21-3701. At the time of his offenses, K.S.A. 2009 Supp. 21-4704(p) provided that “[t]he sentence for a felony violation of K.S.A. 21-3701, . . . when such person . . . has any combination of three or more prior felony convictions for [theft], . . . shall be presumed imprisonment . . . Meanwhile, K.S.A. 21-4710(d)(ll) provided rules for considering prior convictions for the purpose of criminal-history scores, precluding the use in scoring of convictions that have been already used to enhance the sentence but otherwise requiring the consideration of “all” past convictions for scoring purposes:
“Prior convictions of any crime shall not be counted in determining the criminal history category if they enhance the severity level or applicable penalties, elevate the classification from misdemeanor to felony, or are elements of the present crime of conviction. Except as otherwise provided, all other prior convictions will be considered and scored.” K.S.A. 21-4710(d)(ll).
In addition, K.S.A. 21-4710(d)(2) separately provided that “[a]ll prior adult felony convictions, including expungements, will be considered and scored.”
A similar question regarding the consideration of past convictions has been answered regarding the Kansas statutes for sentencing persistent sex offenders. Sentences are enhanced — by doubling — when a defendant being sentenced for a sex crime with presumptive imprisonment has “at least one [prior] conviction for a sexually violent crime.” (Emphasis added.) See K.S.A. 2009 Supp. 21-4704(j). The Kansas Supreme Court addressed the interpretation of K.S.A. 21-4704(j), along with K.S.A. 21-4710(d)(ll), in State v. Zabrinas, 271 Kan. 422, 442-44, 24 P.3d 77 (2001). The Zabrinas court concluded that even though K.S.A. 21-4710(d)(ll), calls for scoring all crimes, it also “prevents . . . the counting of a prior conviction that was used to double the sentence.” 271 Kan. at 443. The defendant in Zabrinas had two prior, qualifying sex offenses, and the court ordered resentencing counting only one of the sentences toward the criminal-history score. Although the court did not make this point explicidy, it apparently considered only one of the prior convictions to have been used to double the sentence, and the statutoiy language at issue (“at least one conviction”) provided for sentence enhancement whether the defendant had one, two, or many prior qualifying convictions. 271 Kan. at 442-44.
Our court has rulings to the same effect in State v. Armstrong, 29 Kan. App. 2d 822, 33 P.3d 246, rev. denied 272 Kan. 1420 (2001), and State v. Deist, 44 Kan. App. 2d 655, 239 P.3d 896 (2010). In Armstrong, a defendant with seven prior sex-offense convictions argued that the district court could not use any of the seven prior convictions to increase his criminal history score because his prior convictions had been used to classify him as a persistent sex offender. This court affirmed the district court’s use of six of the prior convictions in calculating the criminal-history score:
“By the plain terms of the statute, only one prior conviction of a sexually violent crime is necessary to support an enhanced sentence as a persistent sex offender. When read in conjunction with K.S.A. 21-4710(c) and K.S.A. 21-4710(d)(ll), the trial court is required to include in the criminal history any other convictions beyond that necessary to trigger the enhancement.” 29 Kan. App. 2d at 825.
Deist followed the reasoning of Armstrong, using one prior conviction to trigger the duty to register as a sex offender and the other in calculating the defendant’s criminal-history score. Deist, 44 Kan. App. 2d at 660.
The Kansas forgery statute offers another similar use of prior convictions. The forgery statute has an enhanced sentence — a minimum of 45 days in prison — on a “third or subsequent conviction” of forgery. K.S.A. 21-3710(b)(4). Relying on the implied statutory mandate that “ ‘all other prior convictions [not used to enhance severity level or applicable sentencing penalties] will be considered and scored’ for criminal history purposes,” the Kansas Supreme Court recently held that all forgery convictions beyond three are available to be counted in the criminal history score. See State v. Arnett, 290 Kan. 41, 50, 223 P.3d 780 (2010) (citing K.S.A. 21-4710[d][ll]); State v. Gilley, 290 Kan. 31, 39-40, 223 P.3d 774 (2010) (same).
These precedents strongly suggest that only three of Williams’ past convictions were “used up” to enhance his sentence and that the fourth must be scored for criminal-history pur-poses. There is a slight difference in statutory language between the persistent-sex-offender statute (“at least one” prior conviction) and the statute targeting persistent thieves (“three or more” prior convictions). But we find no meaningful difference there. See SuperGuide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 886 (Fed. Cir. 2004) (“We conclude that the plain and ordinary meaning of the disputed language supports the district court’s construction and that die phrase 'at least one of means 'one or more.’ ”); Rhine v. Casio, Inc., 183 F.3d 1342, 1345 (Fed. Cir. 1999) (“Use of the phrase ‘at least one’ means that there could be only one or more than one.”).
This too seems a reasonable statutory interpretation that preserves the legislative intent. K.S.A. 21-4710(d)(2) and (d)(ll) make clear the general design that all past convictions be used to determine the defendant’s criminal-history score. The precedents we’ve discussed, including the recent decisions in Arnett and Gilley, underscore this point.
Williams argues that if the legislature intended that only three prior convictions be used to enhance the sentence, it could have used that language. This argument has some force, especially given the rule of lenity, which holds that an ambiguous criminal statute will generally be construed in favor of the defendant. See State v. Knight, 44 Kan. App. 2d 666, Syl. ¶ 8, 241 P.3d 120, rev. denied 292 Kan. 967 (2011). But one counterargument is that if the statute had simply stated that any combination of three prior felony convictions triggered presumptive prison, then it would leave open the argument that the plain meaning of the statute says that three and only three convictions trigger presumptive prison. A defendant then might argue that someone with four prior convictions would be included in a statute requiring “three or more” prior convictions but excluded from one that required specifically “three” prior convictions. We do not suggest that such an argument would prevail; we note it only because it provides a plausible explanation for the drafting technique chosen for use in K.S.A. 2009 Supp. 21-4704(p).
We note too that the rationale for applying the rule of lenity in this case is not particularly strong. The rule of lenity is most commonly justified under concepts of fair notice, i.e., that statutes defining criminal conduct must be clearly set forth so that citizens can act accordingly. See Knight, 44 Kan. App. 2d at 681; State v. Edwards, 39 Kan. App. 2d 300, Syl. ¶ 1, 179 P.3d 472, rev. denied 286 Kan. 1181 (2008). Here, the issue involves consideration not of the statute defining the offense but of the ones directing the appropriate penalty. It would be a stretch to say that a persistent thief would act differently depending upon how K.S.A. 2009 Supp. 21-4704(p) is interpreted. So the rule of lenity is sometimes con sidered less strongly applicable when interpreting a penalty provision than when interpreting the provisions defining lawful conduct. See Phillip M. Spector, The Sentencing Rule of Lenity, 33 U. Toledo L. Rev. 511 (2002). We do not suggest that the rule of lenity is not applied in Kansas to sentencing statutes; it is. E.g., State v. Malmstrom, 291 Kan. 876, Syl. ¶ 2, 249 P.3d 1 (2011) (applying rule of lenity when defendant could be sentenced under either of two provisions). We merely note that the rationale for doing so in our case is relatively weak, especially in light of the overriding way in which the statutory scheme deals with a defendant’s criminal-history score by making sure that all past convictions are counted. Our Supreme Court has recently emphasized that the rule of lenity is applied only where we are left with reasonable doubt about the meaning of the statute, State v. Cash, 293 Kan. 326, 328, 329, 263 P.3d 786 (2011), and this is not such a case.
The Kansas sentencing statutes show an overall purpose to count all convictions when determining criminal-history scores, subject to the exception that convictions used in some other way — such as by enhancing the sentence — are “used up” and may not be counted again. We interpret K.S.A. 2009 Supp. 21-4704(p) in this way too, and only three of Williams’ prior convictions were used up to enhance his sentence. The other one was properly used to determine his criminal-history score.
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Buser, J.:
Bradley James Graves pled guilty to criminal threat, in violation of K.S.A. 21-3419. The district court sentenced Graves to 12 months’ probation with an underlying prison term of 7 months. Graves appeals the district court’s denial of his request for jail time credit for the 93 days he spent on bond while a resident at the Johnson County Community Corrections Residential Center (Residential Center) prior to sentencing. We affirm the district court.
Factual and Procedural Background
On December 30, 2010, Graves telephoned his mother, Maiy Cast, and threatened to murder her. According to Cast, Graves said, “ 1 am going to murder you.’ ... 1 am just up the street. They aren’t going to be there before I am able to bash your head in.’ ” As a result, Cast was fearful for her safety.
The next day, Cast received another telephone call from Graves. During that call, Graves again threatened to murder Cast and commit acts of physical violence against her. Graves also made threats against Tom Patel, Cast’s ex-husband, with whom she had maintained a cordial relationship. Once again, Cast was afraid for her physical well being.
On January 1, 2011, Cast and Patel observed Graves drive by Cast’s home and park on an adjacent street. Patel reported that he received seven telephone calls from Graves, and Cast received four calls. Police subsequently contacted Graves, and he admitted making several threatening telephone calls to his mother.
Graves was charged with criminal threat, in violation of K.S.A. 21-3419, stalking, in violation of K.S.A. 21-3438, and two counts of harassment by telephone, in violation of K.S.A. 21-4113.
Upon his arrest, Graves was incarcerated at the Johnson County Adult Detention Center (Detention Center). The district court initially set a cash or surety bond in the amount of $7,500. Graves was unable to post the bond, however, and filed a motion for modification. On January 13, 2011, the district court granted Graves’ motion and allowed him to post a $5,000 personal recognizance bond with the condition that Graves reside at the Residential Center. The Residential Center is operated by the Johnson County Department of Corrections. Additional bond conditions required that Graves abstain from alcohol, illegal drugs, and controlled substances; submit to drug testing when directed; possess no firearms; have no contact with victims or witnesses; have no violent contact with Patel; and submit to a mental health evaluation prior to being released on bond.
On January 17, 2011, Graves signed the appearance bond. The next day, he was released from the Detention Center and transported to the Residential Center by personnel from that facility. Graves remained at the Residential Center on bond throughout the rest of the court proceedings.
On February 11, 2011, Graves pled guilty to one count of criminal threat, and the State dismissed the remaining charges. Subsequently, on April 20, 2011, the district court sentenced Graves to 12 months’ probation, under the supervision of the Residential Center, with an underlying prison term of 7 months. In summary, Graves resided at the Residential Center before the disposition of his case, as a condition of his bond. He continued to reside at the Residential Center after the disposition of his case, as a condition of his probation.
Graves’ presentence investigation report indicated that he was entitled to 17 days of jail time credit for time spent in the Detention Center prior to sentencing. The district court continued sentencing, however, to allow the parties to brief whether Graves was also entitled to credit for the 93 days he spent while on bond at the Residential Center pending the disposition of his case.
In his motion, Graves contended the legislature intended the phrase “ Time spent incarcerated’ ” as found in K.S.A. 21-4614 to include time spent at the Residential Center. Graves noted the Residential Center is a locked facility where residents must obtain approval to leave and return at the end of every day. Additionally, Graves cited K.S.A. 21-4614a (a companion statute to K.S.A. 21-4614) as indicative of the legislature’s intent to consider community corrections residential living as a form of incarceration.
The State countered that Graves was not entitled to jail time credit because he was released from jail on a personal recognizance bond with the condition that he reside at the Residential Center. According to the State, although the Residential Center is controlled by the Department of Corrections, Graves was not under “ ‘actual constructive control of jail or prison officials,’ ” and as a result, he was not incarcerated for purposes of jail time credit.
On May 18, 2011, the district court held an evidentiary hearing to consider Graves’ motion for jail time credit. Amy Rozzell, an employee of the Johnson County Department of Corrections, testified that she supervises admissions and programs for the Residential Center. According to Rozzell, defendants on bond are required to follow the same rules, regulations, and policies, as individuals on probation.
Rozzell testified that all individuals at the Residential Center are prohibited from leaving the facility at will. Residents with verified employment, however, are permitted to leave the facility to work during tire day. Moreover, the Residential Center provides individuals with passes to leave the facility to attend medical, dental, and mental health appointments, or visits with family members. When residents are allowed to leave the facility, they are required to sign out before leaving and sign back in upon their return. Residents are also required to return to the facility at the end of the day and to remain there during the night.
Although residents are not authorized to leave the facility without permission, the Residential Center does not have armed guards or barbed wire, and staff members do not physically restrain residents who leave the facility without permission. In fact, Rozzell testified the Residential Center s policy when a resident attempts to leave without authority is to try and persuade the resident to return. If the resident refuses to comply, the Residential Center does not take steps to forcibly prevent the individual from simply walking away from the facility.
The Residential Center serves defendants on bond and on probation. The only difference between the Residential Center s bond program and probation program is the resident’s potential to progress through the Residential Center’s incentive system. The Residential Center utilizes a “level system,” which for probationers was described by Rozzell as follows:
“We start out on level zero. It’s orientation they have to go through. 0 classes, positive classes. They can start job seeking. All of our levels are approximately two weeks long. Level 1, same tiling; they hopefully find employment on level 1. They start doing their evaluations, start treatment recommended. To get to level 2 they have to be employed. And that’s when the passes to go home for visitation can occur as a privilege. Level 3, kind of same thing, still work on their goals.”
Unlike a probationer, however, a defendant on bond may not progress past level 2. Rozzell testified that the main difference between level 2 and 3 is that a probationer on level 3 can earn more incentives, such as longer leave passes or the ability to participate in activities at the Residential Center. According to Rozzell, after sentencing and while on probation, Graves continued on the same program track he had been on while he was on bond.
After hearing arguments and Rozzell’s testimony, the district court denied Graves’ motion and found that he was not entitled to jail time credit for the 93 days he spent on bond at the Residential Center pending the disposition of his case.
Graves timely appealed the district court’s denial of jail time credit.
May a Defendant at the Residential Center Earn Jail Time Credit While on Bond?
On appeal, Graves contends he is entitled to jail time credit under K.S.A. 21-4614 for the 93 days he spent on bond at the Residential Center pending the disposition of his case.
A defendant’s right to jail time credit is statutory. State v. Theis, 262 Kan. 4, 7, 936 P.2d 710 (1997). Because resolution of this issue necessitates an analysis of K.S.A. 21-4614, our standard of review is de novo. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010); State v. Guzman, 279 Kan. 812, 813, 112 P.3d 120 (2005).
K.S.A. 21-4614 provides in pertinent part:
“In any criminal action in which the defendant is convicted upon a plea of guilty or no contest or trial by court or jury or upon completion of an appeal, the judge, if the judge sentences the defendant to confinement, shall direct that for die purpose of computing defendant’s sentence and parole eligibility and conditional release dates thereunder, that such sentence is to be computed from a date, to be specifically designated by the court in the sentencing order of die journal entry of judgment or die judgment form, whichever is delivered with the defendant to the correctional institution, such date shall be established to reflect and shall be computed as an allowance for the time which the defendant has spent incarcerated pending the disposition of the defendant’s case.” (Emphasis added.)
In short, the determination of whether a defendant is entitled to jail time credit depends on if the defendant was “incarcerated” pending the disposition of the case. See State v. Palmer, 262 Kan. 745, 749, 942 P.2d 19 (1997).
On appeal, Graves argues that he is entitled to jail time credit under K.S.A. 21-4614 because he was “incarcerated” at the Residential Center. Specifically, Graves contends the time he spent at the Residential Center qualifies as incarceration because he was under “the 'constructive control of the courts, corrections officials, or law enforcement agencies’ [citation omitted,]” since the facility was controlled by the Department of Corrections and he was prohibited from leaving tire facility.
The district court found that although an individual released on bond to the community corrections residential facility may not be granted total freedom, the Residential Center is not a jail because “[restrictions on freedom at the center are far less than what exists at the Johnson County Adult Detention Center.”
Kansas caselaw, while not directly on point, provides important guidance to resolve this issue. In Palmer, our Kansas Supreme Court reviewed K.S.A. 21-4614 in the context of a defendant who was granted an appearance bond with the special condition that he reside at a private community residential facility under house arrest. In his motion for jail time credit, Palmer referred to the community residential facility as a “ ‘halfway house,’ ” and at a hearing on the motion, Palmer’s counsel referred to the facility as “an alternative program”:
“ ‘[It is a] residential facility much like community corrections. It’s the same type of program. He has to be there at a certain time each night, he’s locked in all night, and during the day he is free to go just as they are at the residential community corrections center.’ ” 262 Kan. at 746.
The prosecutor described the facility as follows:
“ ‘[The facility was] not under the auspices of the state, it’s not part of the community corrections program, it’s just a private organization with no guidelines by the courts or the state. So it can be called residential, but in reality we don’t know what it was. I think the intent was that halfway houses were not to be included [in the statute], and I would liken this non-state sanctioned program to a hallway house.’ ” 262 Kan. at 746-47.
The district court denied Palmer’s request for jail time credit for the time he spent at the facility on bond pending the resolution of his case. On appeal, Palmer argued that die term “ ‘incarcerated’ ” included the time he spent in the residential facility while on bond because he could not leave the facility at will; thus, the restrictions of his appearance bond were “tantamount to incarceration.” 262 Kan. at 748. The State countered that the facility was not akin to “ ‘incarceration’ ” because Palmer was free to leave the facility during the day to work. 262 Kan. at 749.
On appeal, our Supreme Court explained that the critical inquiiy is whether the defendant was “under actual or constructive control of jail or prison officials.” 262 Kan. at 753. The court explained that in making this determination, particular attention should be given to the “ ‘circumstances of placement of the person in the facility’ rather than ‘the nature of the facility itself.’ [Citation omitted.]” (Emphasis added.) 262 Kan. at 753.
The Supreme Court held: “K.S.A. 21-4614 does not authorize or require that time an individual resides in a private residential facility as a condition of a preconviction appearance bond be credited as time spent ‘incarcerated’ pending disposition of a case.” 262 Kan. at 754. The court explained that the only restriction on Palmer’s liberty was “the requirement that he be in the facility at night, a restriction which would have been imposed upon any individual in residence,” but during the day, the defendant was “free to come and go as he wished.” 262 Kan. at 754. According to tire Supreme Court, these circumstances did not qualify as “tire constructive control of the courts, corrections officials, or law enforcement agencies.” 262 Kan. at 754.
Three years after Palmer, our court in State v. Parks, 27 Kan. App. 2d 544, 544-47, 6 P.3d 444 (2000), addressed whether Parks was entitled to jail time credit under K.S.A. 21-4614 for time spent under house arrest with electronic monitoring as a condition of his appeal bond. Following Palmer, our court concluded that Parks was not entitled to jail time credit for the time he spent under house arrest while on appeal bond because the conditions of his bond were not sufficient to constitute incarceration. Parks, 27 Kan. App. 2d at 547-48.
Five years later, our Supreme Court decided Guzman, 279 Kan. 812, which is that court’s latest exposition on this issue. In Guzman, the defendant was released on bond with the condition that he be held under 24-hour-a-day house arrest with electronic monitoring. After conviction and sentencing, the district court denied Guzman’s motion for jail time credit for the time he spent on house arrest prior to the disposition of his case.
On appeal, Guzman argued he was entitled to jail time credit under K.S.A. 21-4614 because house arrest was the equivalent of incarceration and “he was not free to come and go as he wished and that this degree of restriction on his freedom was virtually the same as confinement in a jail.” 279 Kan. at 814. The State countered that if house arrest and incarceration are the same, “then posting a bond to obtain release from jail for the purpose of en tering house arrest is meaningless, i.e., no advantage has been gained by Guzman.” 279 Kan. at 814.
Our Supreme Court reasoned that the critical factor in the case was that Guzman had been released on bond. See 279 Kan. at 814-15. The court explained:
“In both Palmer and Paries, jail time credit was denied when defendants’ entry into a facility after release from an actual jail was a condition of the bond which they posted. Guzman’s situation, entiy into house arrest after release from jail, clearly falls within this category.
“. . . Guzman was free on bail, i.e., he had control over his place of custody inasmuch as he had a choice between (1) being released on bond to be in his own home under house arrest and (2) remaining in jail.” Guzman, 279 Kan. at 814-15.
The Supreme Court held that Guzman was not entitled to jail time credit because he chose to be released on bond, and as a result, he accepted house arrest with electronic monitoring as a condition of his release. 279 Kan. at 815. In other words, the time Guzman spent under house arrest was “not time that he spent incarcerated pending the disposition of his case.” 279 Kan. at 815-16.
As mentioned earlier, both Palmer and Parks considered whether the defendant was “under actual or constructive control of jail or prison officials,” with particular attention given to the “ ‘circumstances of placement of the person in the facility’ rather than ‘the nature of the facility itself.’ [Citation omitted.]” See Palmer, 262 Kan. at 753; Parks, 27 Kan. App. 2d at 547-48. In keeping with this precedent, in Guzman, the “circumstances of placement” at the Detention Center included that Guzman requested release from jail and accepted placement at the Residential Center as a condition of bond. Guzman, 279 Kan. at 814-15.
After Guzman, the Court of Appeals in a juvenile case considered the propriety of awarding jail time credit under K.S.A. 38-16,133 for time the juvenile spent at the Marillac Center, a residential treatment facility for juveniles. See In re T.G., 35 Kan. App. 2d 216, 220-21, 133 P.3d 1279 (2005), rev. denied 280 Kan. 983 (2006). Our court applied Guzman, interpreting its holding to be that “once a defendant or respondent accepts [bond] restrictions as preferable to incarceration, that individual may not claim those restrictions rendered his or her situation equivalent to incarceration.” In re T.G., 35 Kan. App. 2d at 221.
Guzman is dispositive of the present case. Graves had control over his place of custody because he sought release on bond rather than remaining in jail. Graves accepted tire bond conditions mandated by the district court as preferable to jail, and the record establishes the benefits which accrued to Graves as a result of his choice. Unlike the Detention Center, in the Residential Cénter Graves was not kept in a secured facility under lock and key. Importantly, he was free to leave the facility to maintain employment during the day and only required to return at night. He was privileged to leave the facility for various appointments and visits with his family. Should Graves have attempted to leave the Residential Center without authorization, the staff would have employed persuasion rather thán force in an effort to prevent his departure. In short, there is no equivalency between incarceration and the residential living provided by Johnson County Community Corrections. See Guzman, 279 Kan. at 815-16; In re T.G., 35 Kan. App. 2d at 220-21.
On appeal, Graves also reprises an argument he raised in the district court. Graves cites to K.S.A. 21-4614a to support his statutory interpretation of K.S.A. 21-4614 that, for purposes of assessing jail time credit, the legislature intended incarceration to include community corrections residential living.
K.S.A. 21-4614a entitles a defendant whose probation, assignment to a conservation camp, or assignment to community corrections is revoked to jail time credit for time spent in a residential facility while on probation, assignment to a conservation camp, or assignment to a community correctional residential services program. See Palmer, 262 Kan. at 753.
K.S.A. 21-4614a(a) provides in pertinent part:
“In any criminal action in which probation, assignment to a conservation camp or assignment to community,corrections is revoked and the defendant is sentenced to confinement, for the purpose of computing the defendant’s sentence and parole eligibility and conditional release dates, the defendant’s sentence is to be com puted from a date, hereafter to be specifically designated in the sentencing order of the journal entry of judgment or the judgment form delivered with the defendant to the correctional institution. Such date shall be established to reflect and, shall be computed as an allowance for the time which the defendant has spent in a residential facility while on probation, assignment to a conservation camp or assignment to community correctional residential services program." (Emphasis added.)
Graves argues that because this companion statute allows jail time credit for time spent in community corrections facilities subsequent to the disposition of the case, that time spent at such facilities prior to the disposition of the case while the defendant is on bond should also be credited under K.S.A. 21-4614.
The district court commented that Graves’ argument was “at first blush very persuasive”: “[T]he defendant argues that [it is] counter intuitive to say that identical confinement prior to sentencing should not be given jail credit when it is given jail credit post-sentencing pending a revocation. And that certainly is troubling to contemplate.” The district court concluded, however, that the existence of K.S.A. 21-4614 and K.S.A. 21-4614a indicated the legislature intended to treat the computation of jail time credit differently in each of these contexts, especially since both statutes have been amended several times without reconciliation. The district court explained:
“This Court must assume that the legislature meant to draw a distinction between jail credit awarded presentencing, and jail credit award post-sentencing, given the fact that diese two statutes sit literally side-by-side in die statute book, and have co-existed for about 20 years. Even the descriptive names given to the two statutes seem to indicate that the legislature intends to draw a distinction between the two types of confinement. [K.S.A. 21-]4614 is described as, quote, ‘deduction of time spent in confinement,’ end quote. [K.S.A. 21-]4614(a) [sic] is described as, quote, ‘deduction of time spent in residential facility, conservation camp, or community correctional residential services program,’ end quote.”
On appeal, the State endorses tire district court’s interpretation of the dichotomy between K.S.A. 21-4614 and K.S.A. 21-4614a: “The legislature demonstrated through K.S.A. 21-4614a that it knew how to construct a statute which allows for jail time credit for time spent in a residential facility. The legislature decided to not include that language in K.S.A. 21-4614. The difference was intentional.”
The most fundamental rule of statutory construction is the legislature’s intent governs if that intent can be ascertained. Arnett, 290 Kan. at 47. When construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia with a view towards reconciling and bringing the provisions into workable harmony if possible. State v. Raschke, 289 Kan. 911, 914, 219 P.3d 481 (2009).
Although “incarceration” is not specifically defined in K.S.A. 21-4614, the fact that K.S.A. 21-4614 excludes time spent at residential facilities for jail time credit and K.S.A. 21-4614a includes such facilities for jail time credit demonstrates the legislature intended to treat predisposition and postdisposition jail time credit differently. Had the legislature intended defendants to receive jail time credit for time spent in tire facilities listed in K.S.A. 21-4614a prior to disposition of the case, it could have simply included these facilities in K.S.A. 21-4614 or it could have simply combined the two jail time credit statutes. Moreover, appellate courts may not delete or supply vital provisions in a statute; “[n]o matter what the legislature may have really intended to do, if it did not in fact do it, under any reasonable interpretation of the language used, the defect is one that the legislature alone can correct. [Citation omitted.]” State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010).
Finally, in Urban, our Supreme Court held that under K.S.A. 21-3809(b)(l), when a defendant released to a community corrections facility on bond “leaves or is absent from the facility without authorization, an aggravated escape charge cannot be pursued because the statutoiy definition of‘custody’ cannot be met.” 291 Kan. 214, Syl. ¶ 2. Although in Urban the Supreme Court did not comment on the propriety of awarding jail time credit for time spent in a community corrections facility prior to disposition, the Supreme Court’s interpretation of “custody” in K.S.A. 21-3809(b)(l) seems consonant with the district court’s interpretation of “incarcerated” in K.S.A. 21-4614 in this case. See 291 Kan. at 221. If a defendant residing in a community corrections facility while on bond prior to tire disposition of tire case is not in “custody” for purposes of the aggravated escape statute, it is doubtful the legislature intended a defendant on bond residing at such a facility to be “incarcerated” for jail time credit purposes.
We hold that a defendant released on an appearance bond while awaiting the disposition of a criminal case may not receive jail time credit under K.S.A. 21-4614 for time spent in a community correctional residential services program.
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McAnany, J.:
This appeal arises out of Antonio Jones’ conviction of dealing in pirated recordings of recently released movies. The events leading to his conviction began when Sergeant Colin Gallagher of the Wichita Police Department received a tip that Tonya Edwards was illegally distributing pirated DVDs at her place of employment. When Gallagher interviewed Edwards, she denied selling any DVDs but informed Gallagher that she had purchased pirated DVDs from her coworker, Serena Stone. Edwards stated that Stone told her that her boyfriend, Antonio Jones, made the DVDs. Edwards told Gallagher that two other coworkers, Kathleen Badders and her daughter Ashley Badders, also bought DVDs from Stone.
Gallagher questioned Stone along with Kathleen and Ashley Badders. Ashley and Kathleen told Gallagher that they had also purchased DVDs from Stone. Stone said that the DVDs were given to her by Jones, who created them by downloading movies off of the Internet. Stone said she gave the money from the DVD sales to Jones and did not keep any of the money herself.
Both Jones and Stone were charged with dealing in pirated recordings. Stone entered into a diversion agreement with the State in advance of Jones’ trial.
At trial, Edwards and the Badders testified that they bought several pirated DVDs from Stone over a 3-week period. None of them had any contact with Jones, but they understood from Stone that the DVDs came from Stone’s “baby’s daddy,” who was Jones. The DVDs were delivered to them within a flay after they ordered them from Stone. Ashley testified that the quality of the DVDs was “horrible.” She told Sergeaqt Gallagher that one of the DVDs appeared to have been taken in a movie theater and another one had subtitles in some Asian language.
Gary Kissinger, a regional director of investigations for the Motion Picture Association of America (MPAA), testified that about 90 percent of the world’s pirated movips are obtained by the illicit recording of movies using a handheld camcorder while the movie is being played in a movie theater. DVDs sold by Stone of the movies Mall Cop, Hotel for Dogs, Notorious, Taken, Marley & Me, and Bride Wars were introduced into evidence at trial as examples of camcorder movies Stone obtained from Jones.
Camcorder recordings in movie theaters are then uploaded onto an Internet site and ultimately downloaded onto a computer from which the movie is recorded onto a DVD for distribution. Here, the lead-in on the DVD of the movie Mall Cop consisted of a menu that is not found on any movie studio-distributed DVD. The DVD of Hotel for Dogs contained the same nonstandard menu. The DVD of Notorious contained a personal menu someone added. The pirated version of the movie Taken contained Japanese or Korean subtitles. Further, the framing of the picture in each movie was cropped so that some of the titles and lettering had been cut out of the picture. The DVD of Bride Wars contained the same cropping. The back of someone’s head in the theater appeared in the camcorder recording of Hotel for Dogs. The back of a theater chair appeared in the camcorder recording of Marley & Me.
The other 10 percent of pirated movies, such as the DVDs of the movies Grand Torino and The Curious Case of Benjamin Button introduced into evidence at trial, were copies of DVDs distributed by movie studios to members of the Motion Picture Academy for viewing in advance of voting for the Academy Awards. The DVD of the movie The Curious Case of Benjamin Button contained the notice that it is a screener copy to be used only for Academy Awards consideration. The notice stated that the disc is the property of Paramount Pictures and Universal Entertainment. These DVDs, which are of higher quality and resolution than the DVDs of camcorder recorded movies, included an advisory that the disc is intended for the Academy member only and may not be duplicated, distributed, or sold in any format. The disc also contained an FBI anti-piracy warning advising that its content is copyrighted and any violation of the copyright subjects the violator to certain penalties.
Kissinger testified that a DVD can be determined to be pirated merely by examining the disc itself. Properly issued DVDs are manufactured at a factory where they are stamped from a mold onto a silver disc. Pirated DVDs are individually “burned” on a computer and have a purplish or rainbow color rather than silver.
According to Kissinger, movie studios usually do not release the DVD of a movie until 3 or 4 months after the movie has been exhibited in theaters. The DVDs at issue in this case were sold to Edwards and the Badders between January 5 and January 26,2009. The movies contained in the pirated recordings had the following dates for their theatrical release:
Seven Pounds December 19, 2008
The Curious Case of Benjamin Button December 25, 2008
Marley & Me December 25, 2008
Grand Torino January 9, 2009
Notorious January 16, 2009
Mall Cop January 16, 2009
Hotel for Dogs January 16, 2009
Bride Wars January 19, 2009
Taken January 30, 2009
A pirated DVD of the movie 100 Feet also was introduced into evidence. All of the movies at issue in this case were legitimately available only in theaters during tire period in which the DVDs were purchased from Stone. Kissinger testified that none of the studios that produced these movies gave Jones or anyone else permission to copy them. According to Kissinger, all the discs introduced into evidence at trial were pirated.
Sergeant Gallager testified regarding the statements Stone and the other women gave to him in the course of his investigation. He testified that Stone did not identify any source for the DVDs other than Jones.
Stone testified that Jones was the father of her 9-year-old daughter. Stone regularly saw Jones several times a week for parenting visits. She last saw Jones the day before she testified at trial. She testified that she had a great relationship with Jones, who was a “great father” and provided both financial and emotional support.
Stone admitted that she requested and got the pirated DVDs from Jones. She told Jones she wanted the DVDs in order to sell them to her coworkers, but in later testimony she claimed Jones did not know of this in advance of the sales, though she was ordering multiple copies of the same movies from Jones. She testified that she offered to give Jones the money from the sales but “[h]e was like, no. You keep it.” She admitted that she initially told Sergeant Gallagher that she gave the money to Jones but claimed she did so because she was afraid of going to jail.
The jury convicted Jones as charged, and Jones was placed on probation. At the time of sentencing the State submitted a letter from the MPAA requesting restitution of $1,057.41, the wholesale value of the DVDs, and $913.11 in investigative costs. Because the investigative costs were not itemized, the district court left the issue of restitution open for 30 days to allow the parties either to agree on a restitution amount or to schedule another hearing. The parties reached an agreement on the wholesale value of the DVDs but not on the amount of the investigative costs. Two months later, the district court entered its final restitution order of $1,057.41. Jones appeals.
Closing Argument
Jones first argues that the district court violated his constitutional right to present a full and complete defense by not permitting him to argue in closing that he was not aware of the law and therefore did not know that the DVDs were produced in violation of law.
We have unlimited review over Jones’ claim that the district court improperly limited his constitutional right to present a defense. State v. Carter, 284 Kan. 312, 318-19, 160 P.3d 457 (2007).
The State argues that Jones should be precluded from raising this constitutional issue for the first time on appeal. See State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010) (constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review); State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008) (issues not raised before the district court cannot be raised on appeal).
The issue arose during the discussion of Instructions Nos. 2 and 3 at the instructions conference. We take from the exchange that it is Jones’ position that he was aware of the federal prohibition against the unauthorized distribution of copyrighted movies, but he was not aware of any Kansas prohibition and wanted to argue the distinction in closing. The prosecutor countered:
“I don’t think it would be appropriate for defense counsel to argue in closing . . . that ... it is against federal law, but he had no way of knowing that it was against state law. That would be a misstatement of the law, and I think that would be . . . outside of the wide latitude that is given the closing.”
The district court agreed that Jones was presumed to know state law. The district court did not set a specific limitation on what defense counsel was allowed to argue in closing, simply noting:
“Whether he had read — [defendant] had read [K.S.A.] 21-3748, whether he had memorized it, whether he had committed it to memory, or whether he had never heard of it before is irrelevant. The law existed. People are presumed to know the law. And it doesn’t fit in one of the exceptions for ignorance of the law can be a defense.”
It is true that Jones' counsel’s long, rambling, and confusing colloquy with the court at the instruction conference does not clearly stake out his objection. But while this is a close call, we conclude that Jones has preserved the issue for our review.
Moving to the merits of Jones’ argument on this issue, a district court ruling which limits the scope of oral argument generally lies within the court’s sound discretion. State v. Francis, 282 Kan. 120, 143, 145 P.3d 48 (2006); see State v. Kuone, 243 Kan. 218, 234, 757 P.2d 289 (1988) (district court did not abuse its discretion by placing limitations on statements made by defense counsel during closing arguments).
Jones was charged with violating K.S.A. 21-3749(a), which defines the crime of dealing in pirated recordings:
“Dealing in pirated recordings is selling or offering for sale or distributing or possessing for the purpose of sale or distribution, any article produced in violation of K.S.A. 21-3748 and amendments thereto, knowing or having reasonable grounds to know that such article was produced in violation of law.”
K.S.A. 21-3748, which is referred to in the statute under which Jones was charged, defines piracy of recordings. The applicable portion is as follows:
“(a) Piracy of recordings is knowingly, and without tire consent of the owner, duplicating or causing to be duplicated any sounds recorded on a phonograph record, disc, wire, tape, film or other article on which sounds are recorded . . . with tire intent to sell, rent or cause to be sold or rented, any such duplicated sounds.” K.S.A. 21-3748(a).
In Instruction No. 2, and consistent with K.S.A. 21-3749, the statute under which Jones was charged, the jury was instructed that the State must prove that Jones “knew or had reasonable grounds to know that such recording was produced in violation of law, as set forth in Instruction Number 3.”
In Instruction No. 3, and consistent with K.S.A. 21-3748, which is referred to in K.S.A. 21-3749, the jury was instructed: “Kansas law provides that it is illegal for any person knowingly and without the consent of the owner to duplicate or cause to be duplicated any sounds recorded on a disc, tape, film or other article with the intent to sell, rent or cause to be sold or rented.”
Jones does not find any fault with the district court giving Instructions Nos. 2 and 3. Nor does he argue that tire evidence was insufficient to convict him of the crime. Pie complains that the court limited his ability to refute the knowledge element of K.S.A. 21-3749(a). Jones argues that he “elicited testimony that although . .. each of the recordings referenced federal law, none referenced Kansas law. Thus, a jury could reasonably have found that Mr. Jones may have known that the recordings might violate federal law, while at the same time have had no knowledge that they violated Kansas law.”
Jones readily admits that he was allowed to elicit testimony refuting the knowledge element of K.S.A. 21-3749(a). There is no claim that the district court excluded evidence on this issue. The issue is the claimed limitation on his closing argument.
Under the state and federal Constitutions, few rights are more fundamental than that of an accused to present his or her own theory of defense. State v. Gonzales, 245 Kan. 691, 699, 783 P.2d 1239 (1989) (quoting Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297 [1973]). The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires a criminal defendant to be afforded a “meaningful opportunity to present a complete defense.” California v. Trombetta, 467 U.S. 479, 485, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984); see State v. Irons, 250 Kan. 302, 309, 827 P.2d 722 (1992).
Not every unfavorable ruling rises to the level of interference with a defendant’s constitutional right to present a defense. State v. Huntley, 39 Kan. App. 2d 180, 186, 177 P.3d 1001 (2008). The right to present a defense is subject to statutory rules and caselaw interpreting the rules of evidence and procedure. State v. Wells, 289 Kan. 1219, 1235, 221 P.3d 561 (2009). Jones’ counsel was required to operate under the same constraints that limit all counsel in closing argument.
Jones was charged with violating K.S.A. 21-3749, dealing in pirated recordings. The statute does not define a general intent crime; that is, one in which intentionally doing the prohibited act is sufficient to constitute the crime. See State v. Diaz, 44 Kan. App. 2d 870, 873, 241 P.3d 1018 (2010), rev. denied 291 Kan. 913 (2011). Here, the State had to prove that Jones dealt in pirated recordings “knowing or having reasonable grounds to know that such article was produced in violation of law.” The jury was instructed in Instruction No. 2 that the State had to prove this. The defense was entitled to address in closing argument each element of the charged crime and whether the State has met its burden of proving each element beyond a l'easonable doubt. We have read and reread several times the exchange between court and counsel at tire instruction conference and do not find any clear expression from the district court that Jones’ counsel was not permitted to address in closing argument each element of the charged crime, including the element of knowledge. But if the court’s comments are construed as limiting Jones’ ability to address tire element of knowledge in his closing argument, we conclude any error was harmless.
A violation of a defendant’s constitutional right to present a complete defense is subject to a harmless error analysis. See K.S.A. GO-261; State v. King, 293 Kan. 1057, 1068, 274 P.3d 599 (2012). As stated in State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011):
“If the fundamental failure does infringe upon a right guaranteed by the United States Constitution, the trial court should apply the constitutional harmless error analysis defined in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967), in which case die error maybe declared harmless where the party benefitting from the error proves beyond a reasonable doubt that die error complained of will not or did not affect die outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that die error affected die verdict.”
To begin with, Jones was not restricted in the presentation of any testimony on the issue of knowledge. At closing argument, all the evidence was before the jury, and the role of counsel was simply to comment on the significance or inadequacy of that evidence and how it fit into each party’s theory of the case. In closing argument counsel is confined to commenting on the facts in evidence and the reasonable inferences that can be drawn from those facts, as well as how those facts are to be applied under the court’s instructions. See State v. Heath, 264 Kan. 557, 583, 957 P.2d 449 (1998).
Examining the evidence from every possible angle, we are unable to determine how any limitation on the closing argument of Jones’ counsel possibly could have changed the outcome of the trial. It is important to recall that Jones does not challenge the sufficiency of the evidence to support his conviction under K.S.A. 21-3749. Thus, he concedes that there was ample evidence that he knew or had reason to know that the DVDs he gave Stone were produced in violation of law.
Generally, citizens of a state are presumed to know that the legislature has made certain conduct illegal. State v. Cook, 286 Kan. 766, 775, 187 P.3d 1283 (2008) (citing Cheek v. United States, 498 U.S. 192, 199, 111 S. Ct. 604,112 L. Ed. 2d 617 [1991]); see State ex rel. Murray v. Palmgren, 231 Kan. 524, 536, 646 P.2d 1091 (1982) (ignorance of the law is no excuse for violation); State v. Young, 228 Kan. 355, 360, 614 P.2d 441 (1980) (all persons are presumed to know general public laws of the state where they reside, as well as the legal effects of their acts).
Jones has no burden to show that any error in limiting closing argument affected the outcome of the trial. The burden rests with the State to show that the error did not affect the trial’s outcome. But the State raised the harmless error argument in its brief, and we have nothing from Jones in reply suggesting how the outcome could have been different.
The State had the burden of proving that Jones knew or had reason to know that the discs he gave Stone were produced in violation of law. Based on our examination of the evidence on this point and the reasonable inferences that can be drawn from the evidence, all as recounted above from the trial testimony, we find the evidence on this point to be overwhelmingly against Jones. We are confident that the outcome of the trial was not affected by any limitation on Jones’ closing argument.
Jury Instructions
Jones argues that his conviction must be reversed because Instruction No. 7 directed a verdict on the knowledge element of K.S.A. 21-3749(a).
“When a party has objected to an instruction at trial, the instruction will be examined on appeal to determine if it properly and fairly states the law as applied to the facts of the case and could not have reasonably misled the juiy. In making this determination an appellate court is required to consider the instructions as a whole and not isolate any one instruction. [Citations omitted.]” State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 (2009).
Over Jones’ objection, the district court provided the juiy with Instruction No. 7, which states: “Proof of criminal intent does not require proof of knowledge of the existence or constitutionality of the statute under which the accused is prosecuted, or the scope or meaning of the terms used in that statute.” This instruction mirrors the language of K.S.A. 21-3202(1).
Jones was charged under K.S.A. 21-3749(a) with dealing in pirated recordings “knowing or having reasonable grounds to know that such article was produced in violation of law.” Jones argues that Instruction No. 7 relieved the State of having to prove beyond a reasonable doubt the knowledge element of K.S.A. 21-3749(a) and essentially directed a verdict on that element. Jones argues the erroneous instruction violated his right to have the jury determine guilt beyond a reasonable doubt on every element of the charged offense.
We agree that the State was required to prove that Jones had actual knowledge or reasonable grounds to know that the DVDs he gave Stone were produced in violation of law. However, K.S.A. 21-3749(a) does not contain an element requiring the State to prove that Jones had knowledge of the existence of that particular statute. Jones need only have a generalized knowledge or reason to believe that what he was doing was against the law. Instruction No. 7 accurately states the law and does not obviate the State’s need to establish the knowledge element of K.S.A. 21-3749(a).
Jones compares this case to State v. Brice, 276 Kan. 758, 80 P.3d 1113 (2003). In Brice, the victim received a “through and through” bullet wound. To sustain a conviction, the State was required to prove that the defendant intentionally caused great bodily harm to the victim. The district court instructed die jury that the term “great bodily harm” meant a “through and through” bullet wound. See 276 Kan. at 760, 771. Our Supreme Court determined that the district court erred in instructing the jury that tire fact of great bodily harm, which was essential to support a conviction, had been established as a matter of law by the evidence of the “through and through” bullet wound. 276 Kan. at 773-74.
Unlike in Brice, the district court here did not identify specific evidence and instruct the jury that such evidence satisfied the State’s burden regarding an element of the offense. Instruction No. 7 did not invade the jury’s role as factfinder. Taking the instructions as a whole, as we are required to do, we do not find that the jury was misled by Instruction No. 7. The jury still had the task of determining whether Jones knew or had reason to know that his dealing in pirated DVDs was against the law. Instruction No. 7 did not relieve the State of its obligation to prove each and every element of the charge offense.
Claimed Prosecutorial Misconduct
Jones claims that the State committed prosecutorial misconduct and violated his right to a fair trial when it went beyond tire scope of the direct examination of Gallagher and pursued a line of questioning dealing with domestic violence.
The State called Stone to testify on the first day of its case-in-chief. In its direct examination the State elicited testimony from Stone that Jones was the father of her 9-year-old daughter. Stone saw Jones several times a week, including the day before she testified, for parenting visits. She testified that she had a great relationship with Jones, who was a “great father” and provided both financial and emotional support.
On the second day of trial the State called Sergeant Gallagher to testify regarding the statements Stone and the other women gave at the time of the original investigation. The following exchange occurred on the State’s redirect examination of Gallagher:
“Q: In terms of the second interview with Ms. Stone, in your opinion was she in favor of law enforcement getting involved in this matter against [defendant]?
“A: No, she was not.
“Q: In your years as a law enforcement officer, have you ever been engaged in — in cases of domestic dispute or domestic violence?
“A: Absolutely.
“[DEFENSE COUNSEL]: Objection, Your Honor. This is outside the realm.
“THE COURT: Counsel, approach.
(At this time, a bench conference was held out of the hearing of the court reporter, after which continued the proceedings as follows:)
“THE COURT: I will sustain the objection. Rephrase it, please.
“Q: [By the prosecutor] Have you ever been involved in any sort of domestic disputes during domestic cases?
“A: Have I been involved personally?
“Q: Yes.
“A: No.
“THE COURT: Counsel approach.
(At this time, a bench conference was held out of tire hearing of the court reporter, after which continued the proceedings as follows:)
“Q: [By the prosecutor] My apologies, Lieutenant — or, Sergeant, I think I poorly phrased it. Not you personally, but professionally, have you ever been as a law enforcement officer involved in investigating or participating in the investigation of a domestic dispute or domestic violence?
“A: Absolutely.
“Q: In that regard, in such cases, is it your experience, your professional opinion, have you experienced that there are mood shifts or mood swings in such cases?
“A: Absolutely.
“Q: And is there shifts in cooperation by witnesses in those kind of cases?
“A: Absolutely.”
The following exchange occurred on Jones’ recross-examination of Gallagher:
“Q: Okay. You also had some questions regards to your experience of domestic violence. Was there any allegation of domestic violence in this case?
“A: No, sir.
“Q: Any evidence that it had occurred?
“A: No, sir.
“Q: Was occurring?
“A: No, sir.
“Q: Was an issue?
“A: No, sir.”
Finally, during the State’s closing argument the prosecutor stated:
“Second, let’s talk about what we’re doing here. We’re prosecuting [Stone’s] child’s father. Somebody, you know, we talked about, I asked you about domestic issues. I never suggested or implied that there was any land of domestic disturbance. To the contrary, I think they have a great relationship. They told you back then they saw each other virtually every day. That there is financial support in terms of the child. There is logistical support in terms of he helps her do all these tilings. In terms of picking up the children and dropping them off. To some degree she even said, at least if nothing else for the child’s sake, the emotional connection there. She keeps that because she thinks that is important to have that connection with the dad.
“So now you have her not being pretty much pro-prosecution in this case, coupled with the fact the person we’re prosecuting is somebody she’s close to. In fact when asked back then, she said I see him almost virtually every day. And when asked Monday, when was the last time you saw him, she said Sunday, the day before. So, yeah, I bet they have a great relationship. You think that has an impact again with what I said earlier in terms of how she’s going to testify?”
Jones claims he was denied a fair trial because the State interjected a nonissue of domestic violence for which there was no evidentiary basis, all in the hopes of discrediting Stone’s testimony about Jones not knowing that she was selling the DVDs and Jones refusing to take money for them.
The State argues that this issue has not been properly preserved for appellate review due to Jones’ failure to make a specific contemporaneous objection to the State’s questions as required by K.S.A. 60-404 and State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009). The requirement of a specific contemporaneous objection applies to prosecutorial misconduct claims arising from the improper introduction of evidence. State v. Shadden, 290 Kan. 803, 835, 235 P.3d 436 (2010).
Here, we construe defense counsel’s objection to be that the question was beyond the scope of cross-examination. We do not know if any other objection was raised at the bench conference because the court sustained the objection and allowed counsel to rephrase the question, indicating that the objection was simply to the form of the question, an objection inconsistent with the claim now being made on appeal. Whatever other objection Jones raised at the bench conference has not been preserved for our review, and Jones has the burden of providing a record of the proceedings demonstrating the error he now claims. See State v. Moncla, 262 Kan. 58, 68, 936 P.2d 727 (1997) (defendant has burden to invite court reporter to record substance of sidebar conference).
In any event, after the question was rephrased the court called counsel to the bench a second time, after which the prosecutor rephrased the question again, apparently at the court’s direction. This seems to confirm that Jones’ prior objection had not been substantive but rather merely to the form of the question. Jones’ counsel made no further objection to the testimony.
K.S.A. 60-404 and King, 288 Kan. at 349, require a timely and specific objection to evidence. The only objection Jones raised at trial was not specific to the issue he now raises, and he made no objection whatsoever to the rephrased questions. Jones has failed to properly preserve this issue for appeal.
Even if the issue had been properly preserved, we are satisfied that the prosecutor’s questions did not affect the outcome of the trial. The State characterizes the prosecutor’s questions as inartful. We characterize them as improper. But defendants are not entitled to a perfect trial. (Every practitioner at the bar will agree that such an event is rare indeed.) Defendants are entitled to a fair trial. Here, the prosecutor’s questions did not so taint the trial as to require us to set aside the juiy’s verdict.
In making this determination we examine tire prosecutor’s questions in light of the record as a whole. State v. Garcia, 282 Kan. 252, 270, 144 P.3d 684 (2006). There was evidence of Stone’s good relationship with Jones, the father of her 9-year-old child. Jones reiterated the point in the recross questioning that immediately followed the prosecutor’s questions. The prosecutor then emphasized Stone’s close relationship with Jones in closing argument and made it clear that there was no violent relationship between Stone and Jones. To the contrary, the prosecutor asked the jury to consider Stone’s close relationship to Jones in weighing her credibility with respect to her testimony given at trial that varied from the statement she gave the police. Further, there is no evidence of ill will in the prosecutor’s questions. He asked the question once, drew an objection apparently to the form of the question, rephrased the question at the court’s direction, and proceeded accordingly without any further objection. We are satisfied this ill- conceived but isolated inquiry into the issue of domestic violence had no likelihood of altering the outcome of the trial. See State v. Boggs, 287 Kan. 298, 319, 197 P.3d 441 (2008).
Alternative Means
Jones claims the district court instructed the juiy on various alternative means by which the law was violated when producing the recordings. Jones argues that his right to a unanimous verdict was not protected because the State failed to present evidence to support each of the alternative means upon which the district court instructed the jury.
Jury unanimity on guilt is statutorily required. K.S.A. 22-3421. In an alternative means case, the juiy must be unanimous as to guilt for the single crime charged but need not be unanimous as to the particular means by which the crime was committed, so long as substantial evidence supports each alternative means. State v. Wright, 290 Kan. 194, 201-02, 224 P.3d 1159 (2010).
Jones’ argument is based on tire alternative means of committing the crime of piracy of recordings, K.S.A. 21-3748. But Jones was charged, instructed, and convicted of dealing in pirated recordings in violation of K.S.A. 21-3749(a). The jury was instructed in Instruction No. 9 that its verdict must be unanimous. We presume that the juiy followed this instruction. See State v. Becker, 290 Kan. 842, 856, 235 P.3d 424 (2010). Because the jury was instructed as to one means of dealing in pirated recordings, we have no doubt that the jury’s verdict was unanimous.
Cumulative Error
It is a close call whether Jones properly preserved his claim of error in limiting closing argument. We resolved that question in his favor but had difficulty finding any clear expression of the court which limited Jones’ closing argument. We concluded, however, that if Jones was so limited, it was error, albeit harmless, to do so.
With respect to the claimed prosecutorial misconduct, Jones did not properly preserve that issue for appeal. Nevertheless, we concluded that Jones was not harmed by the prosecutor’s brief but ill-conceived questions about domestic violence.
The issue is whether the cumulative effect of what are at most harmless errors was so great as to require reversal. The test is “whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant. [Citation omitted.]” State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010).
Our examination of the record as a whole leads us to conclude that these two incidents during the course of the trial did not deprive Jones of a fair trial. Jones is not entitled to relief under the cumulative error doctrine.
Restitution
Finally, Jones argues the district court did not have jurisdiction to order restitution after the date of sentencing. He contends that restitution is a part of the sentence and cannot be ordered or modified after the district court has imposed a lawful sentence.
The district court stated that it would leave the matter of restitution open for 30 days. A journal entry reflecting the final amount of restitution was filed 2 months after the sentence was imposed. Therefore, Jones argues in the alternative that the district court lost jurisdiction 30 days after sentencing.
The sentencing court is allowed to reserve restitution issues for a later determination after sentence has been imposed. State v. McDaniel, 292 Kan. 443, 447-48, 254 P.3d 534 (2011); State v. Cooper, 267 Kan. 15, 18, 977 P.2d 960 (1999); State v. Bryant, 37 Kan. App. 2d 924, Syl. ¶ 4, 163 P.3d 325, rev. denied 285 Kan. 1175 (2007). In both Cooper and Bryant, the district courts left the matter of restitution open for 30 days, but restitution was not imposed until approximately 6 months later. In both cases, the award of restitution was upheld. We are duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Merrills, 37 Kan. App. 2d 81, 83, 149 P.3d 869, rev. denied 284 Kan. 949 (2007). Based on controlling precedent, this claim of error fails.
Affirmed.
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Standridge, J.:
Rodney Coleman appeals from two separate forgeiy convictions, one for forgery as defined by K.S.A. 21-3710(a)(2) and the other for forgery as defined by K.S.A. 21-3710(a)(3). Relevant to both convictions, Coleman argues the State failed to present sufficient evidence to establish that he issued and delivered — or possessed and intended to issue and deliver — a fraudulent check, each of which are alternative means of committing forgeiy based on the juiy instructions at trial. Also relevant to both convictions, Coleman argues the State failed to present sufficient evidence to establish that he knew the check at issue had been fraudulently made, altered, and endorsed, each of which— again — are alternative means of committing forgery based on the jury instructions at trial. In the event we are not persuaded to overturn his convictions based on these alternative means arguments, Coleman also argues the two convictions for forgeiy are multiplicitous and, as a result, one of die convictions must be vacated.
For the reasons stated below, we are not persuaded that the phrases “issuing or delivering” and “issue or deliver” as used in the forgery statute and the jury instructions create two alternative means of committing forgeiy. Neither are we persuaded that the phrase “made, altered or endorsed” in the forgery statute and the juiy instructions creates three alternative means of committing forgery. Nevertheless, we are persuaded that Coleman’s convictions for forgery are multiplicitous and that remand is necessaiy so the district court can vacate one of the convictions. Because Coleman received concurrent sentences for his two convictions, however, there is no need for him to be resentenced.
Facts
On April 9, 2010, Coleman walked into a Dillon’s grocery store in Wichita and attempted to cash a check at the store’s customer service counter. The check was drawn on the account of Estes Enterprises (Estes) and made payable to Coleman for $640.37. Due to unusual features on the check, Johnnie Webb, the Dillon’s employee working behind the counter, had concerns about whether the check was legitimate. While talking with Coleman, Webb signaled to another employee to call 911, . Coleman waited at the counter as Webb stalled the check cashing process. Officer Eric Noack of the Wichita Police Department eventually arrived and arrested Coleman. Noack then escorted Coleman to a security office inside the store where Coleman, after being informed of his Miranda rights, agreed to speak with Noack.
Coleman told Noack that he cleaned buildings for Estes and that the check was payment for his work. Coleman told Noack that his boss was a woman named Marie Osby. Noack asked how he could contact Osby, and Coleman said he did not have her phone number. He told Noack that whenever he wanted to work, he would show up at an intersection in Wichita at 10:30 p.m. and Osby would pick him up in a white van and take him to various buildings to clean. Coleman said that he received the check from Osby that morning after he met her at a Wal-Mart in Wichita. When Noack asked Coleman how he knew to meet Osby at that particular WalMart, Coleman said-that he had just seen her there and received the check.
Noack searched Coleman and found a check stub, which Coleman claimed was once attached to the check from Estes. Although the $640.37 in net pay identified on the check stub matched the amount on the check from Estes, the check stub identified “Lil Le’s Childcare Center” as Coleman’s employer and not Estes.
Noack eventually transported Coleman to the city building where Bradley Tuzicka, a detective with the financial crimes section of the Wichita Police Department, interviewed him. During the interview, Coleman again explained that the check he attempted to cash was his paycheck from Estes for cleaning buildings and that his boss at Estes, Osby, had given him the check. Coleman explained that Osby was the supervisor of his particular cleaning crew. Coleman said that during the previous evening and into the early morning hours, the crew had cleaned a Ryan’s Steakhouse and an International House of Pancakes (IHOP) restaurant located in the area of K-96 and Rock Road in Wichita. Coleman explained that while at Ryan’s, they had vacuumed and mopped the inside of the restaurant and picked up trash around the outside of the building. At IHOP, Coleman said that they had power washed the restaurant’s hood vents.
Tuzicka pointed out to Coleman that the name of the payor on the check (Estes) did not match the name of Coleman’s employer on the paystub (Lil Le’s Childcare Center). In response, Coleman stated that he had not noticed the discrepancy before Tuzicka pointed it out.
Tuzicka eventually left the interview room and called David Christman, the general manager of the Ryan’s Steakhouse identified by Coleman as the one they cleaned. Tuzicka asked Christman whether he had hired any outside contractors to clean the restaurant the previous evening. Christman said he had not and explained that the restaurant’s employees did most of the cleaning. Christ-man specifically denied hiring Estes to perform any cleaning of the restaurant.
Tuzicka returned to the interview room and told Coleman that he did not believe his story and that based on his previous experience with investigating check forgery cases, Tuzicka believed Coleman was being exploited by someone who had made a deal with him to cash the check in exchange for a share of the proceeds. Tuzicka also suggested that he knew Coleman was not “trying to hurt anybody like a robber would with a gun.” In response, Coleman told Tuzicka that he was right and admitted to receiving the check from a woman named Marie who Coleman had met on a street in Wichita. Coleman told Tuzicka that Marie had made the check and told him what to say if he was caught, but they never reached a final agreement on how they would split the proceeds if Coleman was able to cash the check.
A few days later, Tuzicka contacted Mohamad Issa, the general manager of IHOP, who confirmed that the restaurant’s hood vents were not cleaned on or around April 8 by an outside cleaning crew. Like Christman, Issa specifically denied hiring Estes to perform any cleaning of the restaurant.
The State charged Coleman with two counts of forgery under K.S.A. 21-3710(a)(2) and (a)(3) based on his attempt to cash the forged check at Dillon’s. Coleman’s case proceeded to a jury trial where, in addition to the facts above, the State presented tire testimony of Jeanette Garretson, an accountant with Estes. Garretson testified that, although the check looked similar to the ones Estes used, the signature on the check did not belong to any of the three people authorized to sign checks for Estes. Garreston also said that the check was missing a memo line and that the six-digit account number that appeared on the check, while correct, was missing a space between the third and fourth digits of the account number. Finally, the accountant testified that Coleman was never an employee or vendor of Estes, Estes had never issued a check to him, and Coleman never had authority from Estes to cash the check.
Coleman’s girlfriend, Lola Ross, testified on Coleman’s behalf at trial, stating that Coleman began working for Osby a few days before he was arrested on April 9, 2010. Ross stated that she did not know what type of work Coleman performed for Osby, but she knew that he only worked for Osby during tire day and that he received the $640.37 check as a result of his employment with her.
Coleman testified at trial that he began working for Osby in late March and continued working for her until he was arrested on April 9 when he tried to cash the first paycheck he received from her. Coleman said that during his employment with Osby, he worked on a crew that cleaned various buildings and restaurants located in Wichita, Newton, and Andover. He said that whenever he worked for Osby, she would either pick him up at home or would let him know that she would be picking him up at a specific intersection in Wichita. She would then proceed to take Coleman and die rest of the cleaning crew members to various work sites to clean.
Coleman said that the night before he was arrested, he spent several hours cleaning a building in Newton and did not get off work until the next morning. After he got off work, Coleman went to a Wal-Mart in Wichita where Osby had told him to meet her so she could give him his paycheck. At 9:30 a.m., Coleman met Osby at the Wal-Mart and she gave him the $640.37 check. Coleman went to Dillon’s to cash the check and thereafter was arrested.
Coleman denied telling Detective Tuzicka that he had cleaned the IHOP or Ryan’s Steakhouse located in the area of K-96 and Rock Road during the late evening and early morning hours of April 8 and 9. He also denied admitting to Tuzicka that he knew the check was forged, claiming instead that he received the check as payment for work he performed for Osby and that he believed the check was legitimate when he went to Dillon’s to cash it. He specifically denied entering into an agreement to cash a check that he knew was forged in exchange for a share of the proceeds. Coleman claimed he told Tuzicka that he could contact Osby by going to the intersection where she picked Coleman up for work and waiting there for her to arrive. Finally, Coleman acknowledged his signature on the back of the check but claimed that none of the writing on the front of the check was his.
The jury ultimately found Coleman guilty of both counts of forgery. The district court imposed concurrent prison sentences, which resulted in a controlling sentence of 21 months.
Analysis
I. Alternative Means
Coleman argues his forgeiy convictions must be overturned because there was insufficient evidence presented at trial to support the alternative means of issuing and delivering a check that he knew had been fraudulently made, altered, and endorsed, which necessarily malees it impossible to determine whether tire jury was unanimous in deciding the means by which he committed both of the crimes charged. Coleman concedes there was evidence presented at the trial to prove that he delivered the check knowing that it had been fraudulently made and endorsed, but he asserts there was no evidence presented to prove that he issued the check or that the check had been altered.
As Coleman notes, the jury in a criminal case is required to arrive at a unanimous verdict. When the jury is presented with alternative means by which the crime can be committed, it is possible for some jurors to arrive at one alternative means to support a conviction and other jurors to settle on the other alternative means. Notably, our Supreme Court has held that the defendant’s right to a unan imous verdict is not undermined when this happens so long as there was sufficient evidence presented at trial to support each alternative means for committing the crime. See State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010); State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994).
In order to resolve the sufficiency of tire evidence issues presented by Coleman, we must decide whether the legislature intended K.S.A. 21-3710(a)(2) and K.S.A. 21-3710(a)(3) to provide alternative means of committing the crime of forgery within each of these subsections. If the legislature did not so intend, our analysis ends. If we determine that the legislature did intend to provide alternative means of committing forgery within these individual subsections of the statute, then we conduct a second analysis to determine whether there was sufficient evidence presented at trial to support a finding by the jury that Coleman issued or possessed and intended to issue the check knowing that it had been fraudulently altered.
A. Legislative Intent
Interpretation of a statute is a question of law over which an appellate court has unlimited review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). As a general rule, criminal statutes must be strictly construed in favor of the accused. Any reasonable doubt as to the meaning of the statute is decided in favor of the accused. This rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to achieve legislative design and intent. State v. Trautloff, 289 Kan. 793, 796-97, 217 P.3d 15 (2009).
We begin our analysis with K.S.A. 21-3710(a), which defines the crime of forgery as knowingly and with the intent to defraud:
“(1) Making, altering or endorsing any written instrument in such manner that it purports to have been, made, altered or endorsed by another person, either real or fictitious, and if a real person without the authority of such person; or altering any written instrument in such manner that it purports to have been made at another time or with different provisions without the authority of the maker thereof; or making, altering or endorsing any written instrument in such manner that it purports to have been made, altered or endorsed with the authority of one who did not give such authority;
“(2) issuing or delivering such written instrument knowing it to have been thus made, altered or endorsed; or
“(3) possessing, with intent to issue or deliver, any such written instrument knowing it to have been thus made, altered or endorsed.” (Emphasis added.)
The first count of forgery against Coleman charged him with violating subsection (a)(3). Accordingly, the jury was instructed that in order to find Coleman guilty on Count 1, it had to find:
“1. That [Coleman] possessed a check which he knew had been made, altered or endorsed so that it appeared to have been made at another time, with different provisions by the authority of the maker; to wit: an illegible signature, wbo did not give such authority;
“2. That [Coleman] intended to issue or deliver the check;
“3. That [Coleman] did so with die intent to defraud; and
“4. That this act occurred on or about the 9th day of April, 2010, in Wichita, Sedgwick County, Kansas.” (Emphasis added.)
The second count of forgery charged a violation of subsection (a)(2). Consistent with this charge, the jury was instructed that in order to find Coleman guilty on Count 2, it had to find:
“1. That [Coleman] issued or delivered a check which he knew had been made, altered or endorsed so that it appeared to have been made by the authority of the maker, to wit: an illegible signature, who did not give such authority;
“2. That [Coleman] did this act with the intent to defraud; and
“3. That this act occurred on or about the 9th day of April, 2010, in Wichita, Sedgwick County, Kansas.” (Emphasis added.)
Based on the language used in both the statute and the jury instructions, Coleman contends the words made, altered, and endorsed establish three alternative means of committing forgery and that the words issued and delivered establish two alternative means of committing forgery. For the reasons stated in State v. Foster, 46 Kan. App. 2d 233, Syl. ¶¶ 1-3, 264 P.3d 116 (2011), rev. granted 293 Kan. 1109 (February 17, 2012), we are not persuaded by Coleman’s argument. We find it worth mentioning that two of the three judges who participated in the Foster decision currently sit on this panel.
The Foster court began its analysis of this issue by noting that the Kansas Criminal Code did not provide a definition for the words making, altering, or endorsing or for the words issuing or delivering. Because the conduct prohibited by K.S.A. 21-3710(a) relates to negotiable instruments, the Foster court turned to the definitions in the Kansas Uniform Commercial Code (UCC). With regard to the phrase “making, altering, or endorsing,” the court concluded that the UCC definitions demonstrate that each act related to “the creation of an instrument for the purpose of negotiating it, whether it is the first or a subsequent negotiation.” 46 Kan. App. 2d at 240. With regard to the phrase “issuing or delivering,” the court concluded that the UCC definitions demonstrate that each act related “to transferring possession of a negotiable instrument that already has been created, whether it is the first or a subsequent transfer.” 46 Kan. App. 2d at 240-41. Considering these conclusions in a context consistent with the overall language and structure of K.S.A. 21-3710(a), the court held only one means of committing forgery exists within each of the statute’s three separate subsections: (1) creating a fraudulent instrument (subsection [a][1]); (2) transferring a fraudulent instrument (subsection [a][2]); and (3) possessing a fraudulent instrument (subsection [a] [3]). 46 Kan. App. 2d at 241.
The Foster court acknowledged that its construction of K.S.A. 21-3710(a) was at odds with an earlier decision from diis court in State v. Owen, No. 102,814, 2011 WL 2039738 (Kan. App. 2011) (unpublished opinion), rev. granted 293 Kan. 1112 (2012). The panel in Owens concluded that the terms “made, altered, or endorsed” represented three alternative means of committing forgery. 2011 WL 2039738, at *5; see Foster, 46 Kan. App. 2d at 243. In reaching this conclusion, the Owen panel did not attempt to define the terms “made” and “altered,” but instead made its decision solely on the meaning of the word “endorsed” as set forth in Black’s Law Dictionary 843 (9th ed. 2009), which limits the definition to the act of signing the back of a check. See Owen, 2011 WL 2039738, at °5. Unpersuaded by this analysis, the court in Foster found that its construction of K.S.A. 21-3710(a) — incorporating the definitions found in the UCC and construing the statute as a whole — provided the more consistent, harmonious, and sensible conclusion. 46 Kan. App. 2d at 243.
Based on the analysis in Foster, we conclude that the legislature intended “issuing or delivering” a written instrument knowing it to have been fraudulently “made, altered or endorsed” as set forth in K.S.A. 21-3710(a)(2) to prohibit the act of transferring a written instrument knowing it to have been fraudulently created and to constitute one means of forgery. Similarly, we conclude that the legislature intended possessing, with intent to “issue or deliver,” a written instrument knowing it to have been fraudulently “made, altered or endorsed” as set forth in K.S.A. 21-3710(a)(3) to prohibit the act of possessing, with the intent to transfer, a written instrument knowing it to have been fraudulently created and to constitute one means of committing forgery. Given these conclusions, we now need to decide whether the State presented sufficient evidence to convict Coleman of both counts of forgery under each subsection.
B. Sufficiency of the Evidence
“ ‘ “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” ’ [Citation omitted.]” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). In determining whether there is sufficient evidence to support a conviction, an appellate court cannot reweigh the evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. State v. Swanigan, 279 Kan. 18, 23, 106 P.3d 39 (2005). Furthermore, circumstantial evidence is sufficient to support a criminal conviction and to establish the requisite bad intent. State v. Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009).
As noted above, Coleman’s first conviction was grounded in K.S.A. 21-3710(a)(3), which required the State to provide evidence that Coleman knowingly, and with the intent to defraud, possessed a fraudulent check with the intent to transfer (i.e., issue or deliver) possession of the check to another. Coleman’s second conviction was grounded in K.S.A. 21-3710(a)(2), which required the State to provide evidence that Coleman knowingly, and with the intent to defraud, actually did transfer (i.e., issue or deliver) possession of a fraudulent check to another. Coleman does not dispute there was evidence presented at trial that he possessed and subsequently delivered the check to Dillon’s with the intent to cash it. Neither does Coleman dispute that there was evidence at trial that the check at issue was fraudulently created to appear as if an authorized person from Estes made out a check dated April 9, 2010, made payable to Coleman for a sum of $640.37.
Coleman does, however, dispute that there was sufficient evidence at trial to establish that he knew the check was fraudulent. But the record contains sufficient evidence to support such a finding. Detective Tuzicka testified at trial that Coleman initially told him during the interview that he worked for Estes cleaning buildings and that the check he attempted to cash was his paycheck from Estes. But testimony from Estes’ accountant at trial established that Colman had never worked for Estes. Coleman also told Tuzicka that during the previous night, the cleaning crew he worked on had cleaned a Ryan’s Steakhouse and IHOP located in the area of K-96 and Rock Road in Wichita. But after Tuzicka spoke with the manager of Ryan’s and confirmed that no outside contractors had cleaned the restaurant the previous night, he suggested to Coleman that his story was false and that he had made a deal with someone to cash the check. According to Tuzicka, at this point, Coleman admitted to receiving the check from a woman named Marie who had told him what to say if he was caught. From this evidence, the jury could properly infer that Coleman knew that the check was fraudulent before he attempted to cash it at Dillon’s.
Admittedly, Coleman denied at trial telling Tuzicka that he had cleaned the IHOP or Ryan’s Steakhouse located in the area of K-96 and Rock Road the previous evening. He also denied telling Tuzicka that he knew the check was forged, maintaining at trial that he received the check as payment for work he performed for Osby and believed the check was legitimate when he went to Dillon’s to cash it. He specifically denied entering into an agreement to cash a check that he knew was forged in exchange for a share of the proceeds. But this court cannot reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. Swanigan, 279 Kan. at 23. Ample evidence supports the jury’s verdicts finding Coleman guilty of both counts of forgery.
II. Multiplicity
Coleman argues his two convictions for forgery are multiplicitous. As noted above, Coleman was convicted under K.S.A. 21-3710(a)(2) for transferring a fraudulent check and was convicted under K.S.A. 21-3710(a)(3) for possessing the same check with the intent to transfer it. Although Coleman did not raise a multiplicity argument before the district court, appellate courts have addressed such an issue for the first time on appeal in order to serve the ends of justice and prevent the denial of a fundamental right. See, e.g., State v. Colston, 290 Kan. 952, 971, 235 P.3d 1234 (2010). Coleman’s multiplicity argument raises a question of law over which this court exercises unlimited review. See State v. Conway, 284 Kan. 37, 54, 159 P.3d 917 (2007).
Multiplicity is the charging of a single offense in several counts of a complaint or information. State v. Scott, 286 Kan. 54, Syl. ¶ 4, 183 P.3d 801 (2008). The principal danger of multiplicity is that it creates the potential for multiple punishments for a single offense, which is prohibited by the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. State v. Fisher, 283 Kan. 272, 312, 154 P.3d 455 (2007).
In State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006), our Supreme Court announced an analytical framework for determining whether multiple convictions subject a defendant to double jeopardy. The overarching inquiry in this analysis is whether the convictions are for the same offense. This inquiry is broken into two prongs, both of which must be satisfied before a double jeopardy violation can be declared. First, do the convictions arise from tire same conduct, and second, if the convictions do arise from the same conduct, are there two offenses or only one by statutory definition? 281 Kan. at 496.
A. Do the convictions arise from the same conduct?
Our Supreme Court in Schoonover set forth some factors to consider in determining whether the conduct is the same or unitary under the first prong of the double jeopardy analysis: (1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct. If the convictions do not arise from the same conduct, then the analysis ends. 281 Kan. at 496-97.
Applying the Schoonover factors to the facts in this case, we find Coleman’s acts of possessing the forged check — and then transferring the check to a Dillon’s employee so it could be cashed — arose from the same criminal conduct. The acts occurred at the same time and in the same location. Coleman walked into Dillon’s possessing the check and shortly thereafter handed the check over to the Dillon’s employee to be cashed. No identifiable intervening event occurred between these two acts. Nor is there an identifiable fresh impulse between the two acts — Coleman walked into Dillon’s for the purpose of cashing the check he possessed. The same impulse that caused Coleman to possess the check also caused him to attempt to cash the check at Dillon’s. Cf. State v. Wilson, No. 97,451, 2008 WL 2422840, at N (Kan. App. 2008) (unpublished opinion) (holding that defendant’s two convictions for forgery-based on making a forged check and then delivering that same check to a bank to be cashed — were not multiplicitous because the acts occurred on two different days, at two different locations, and the decision to take the check to the bank to cash it was motivated by “a fresh criminal impulse beyond the initial manufacture of the check”), rev. denied 287 Kan. 769 (2009).
Because the facts presented at trial showed that Coleman’s possession of the check and his later delivery of the check to Dillon’s occurred during the same course of conduct, we proceed to the second prong of the double jeopardy analysis.
B. Are there two offenses or only one by statutory definition?
To determine whether the applicable statutory provisions provide for two offenses or only one, the test to be applied depends on whether the convictions arise from multiple statutes or from a single statute. Schoonover, 281 Kan. at 497-98. When, as here, the convictions arise from the same statute, a court applies the “unit of prosecution” test. 281 Kan. at 471-72. Under this test, the court looks at the language of the statute to determine whether the legislature intended the unitaiy conduct at issue to “constitute ‘only one violation of the statute or to satisfy the definition of the statute several times over.’ [Citation omitted.]” State v. Thompson, 287 Kan. 238, 246, 200 P.3d 22 (2009). If tire language fails to clearly and unambiguously show that multiple convictions for unitary conduct are allowed for under the statute, the rule of lenity is applied and only one conviction will stand. Schoonover, 281 Kan. at 472.
Upon review of the statute at issue here, we find no language— let alone clear and unambiguous language — from which to conclude that the legislature intended to permit multiple forgery convictions based on the exact same criminal conduct. In the absence of such language, we must apply the rule of lenity and permit only one conviction to stand. See Schoonover, 281 Kan. at 472.
When convictions are multiplicitous, “a defendant should be sentenced only on the more severe offense.” State v. Gomez, 36 Kan. App. 2d 664, 673, 143 P.3d 92 (2006). In this case, Coleman’s conviction under K.S.A. 21-3710(a)(3) served as the primary crime for establishing his base sentence of 21 months’ imprisonment. Therefore, Coleman’s conviction under K.S.A. 21-3710(a)(2) must be reversed. Because Coleman received concurrent sentences for these two convictions, however, there is no need for him to be resentenced.
Affirmed in part, reversed in part, and remanded with directions. | [
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Marquardt, J.:
Topeka Investment Group, LLC, appeals the judgment granted to First Management, Inc. for plumbing services First Management provided on a Holiday Inn Express owned by Topeka Investment. We affirm.
First Management substantially completed plumbing related work at a Holiday Inn Express for Topeka Investment on June 14, 2010. On September 23, 2010, First Management demanded payment from Topeka Investment. Topeka Investment then requested some minor “punch list” work. First Management completed the “punch list” work and again demanded payment on October 13, 2010. Topeka Investment refused to pay First Management.
On December 6,2010, First Management filed a petition against Topeka Investment for “$22,583.67 together with pre- and post- judgment interest, costs; and for such further additional relief as the Court deems just and proper,” claiming unjust enrichment and promissory estoppel. A process server appointed by the district court served the desk clerk at the Holiday Inn Express with the summons and petition on December 11,2010. Topeka Investment did not file an answer to the petition, and on January 7, 2011, First Management filed a motion for default judgment. A copy of the motion was mailed to Topeka Investment’s registered agent, Madan Rattan, at the Holiday Inn Express address of 601 NW Highway 24, Topeka, Kansas, 66608.
On February 9, 2011, the district court granted judgment to First Management for the principal amount requested of $22,583.67, plus $319.38 prejudgment interest.
On March 15, 2011, Topeka Investment filed a motion to set aside the judgment, claiming that the service of process was not proper, and thus, the district court did not have jurisdiction to enter a judgment against it. The district court denied the motion, determining that service was proper. Topeka Investment timely appeals.
Service of Process
Topeka Investment argues the district court erred when it determined that service was proper under K.S.A. 2010 Supp. 60-304(e). The interpretation of a statute is a question of law over which this court has unlimited review. Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915, 157 P.3d 1109 (2007).
When interpreting a statute, this court must “ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). The 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). When a statute is plain and unambiguous, the court will not read into the statute something not readily found in it. Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271, 202 P.3d 7 (2009).
Proper service of process is an essential before a court may exert personal jurisdiction over a litigant in a lawsuit. In re Estate of Pritchard, 37 Kan. App. 2d 260, 270, 154 P.3d 24 (2007). “Service of process is a method of formally commencing an action by giving the defendant notice of the action. The person named as defendant normally does not become a party to the action until served with the summons. . . . The court obtains jurisdiction of the defendant through service of process.” In re Marriage of Welliver, 254 Kan. 801, 803, 869 P.2d 653 (1994).
Service of process provides notice of the lawsuit. Notice satisfies the constitutional considerations of due process. Procedural due process requires “notice and an opportunity to be heard at a meaningful time and in a meaningful manner.” Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 1275, 136 P.3d 457 (2006).
Jurisdiction over the defendant is acquired by issuance and service of process in the manner prescribed by statute. Kansas Bd. of Regents v. Skinner, 267 Kan. 808, 812, 987 P.2d 1096 (1999). Both personal and subject matter jurisdiction must be present to establish jurisdiction. Davila v. Vanderberg, 4 Kan. App. 2d 586, 588, 608 P.2d 1388 (1980).
If a district court lacks jurisdiction, an appellate court does not acquire jurisdiction on appeal. Harsch v. Miller, 288 Kan. 280, 200 P.3d 467 (2009). Without jurisdiction, a default judgment is void. “A void judgment is one rendered by a court which lacked personal or subject matter jurisdiction or acted in a manner inconsistent with due process. [Citations omitted.] ... A void judgment is a nullity and may be vacated at any time. [Citation omitted.].” In re Marriage of Hampshire, 261 Kan. 854, 862, 934 P.2d 58 (1997).
Under K.S.A. 2010 Supp. 60-304(e), services of process on a domestic limited liability company, like Topeka Investment, can be made by:
“(1) Serving an officer, manager, partner or a resident, managing or general agent;
“(2) leaving a copy of the summons and petition or other document at any of its business offices loith the person having charge thereof or
“(3) serving any agent authorized by appointment or by law to receive service of process, and if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant.” (Emphasis added.)
“Substantial compliance with any method of serving process effects valid service of process if the court finds that, notwithstanding some irregularity or omission, die party served was made aware that an action or proceeding was pending in a specified court that might affect tire party or the party’s status or property.” K.S.A. 2010 Supp. 60-204.
A panel of this court has held that substantial compliance means compliance with respect to the essential matters necessary to assure every reasonable objective of the statute. Fisher v. DeCarvalho, 45 Kan. App. 2d 1133, 1147, 260 P.3d 1218 (2011). Under Kansas law, both substantial compliance with the statutory requirements of service and awareness of the pending action are all that is required. Sellens v. Telephone Credit Union, 189 F.R.D. 461, 464 (D. Kan. 1999).
On appeal, Topeka Investment argues that First Management did not properly serve it with the summons and petition. First Management argues, and the district court agreed, that Topeka Investment was properly served through K.S.A. 2010 Supp. 60-304(e)(2), by leaving a copy at any of Topeka Investment’s business offices “with the person having charge thereof.”
On December 11, 2010, First Management, through Hatfield Process Service, served the petition and summons on Laura Petrie, front desk clerk at the Holiday Inn Express at 601 NW Highway 24, Topeka, Kansas, 66608. Holiday Inn Express is located at this address; its business is legally classified as “Topeka Investment Group, LLC, doing business as Holiday Inn Express & Suites.” Topeka Investment owns the real property and the Holiday Inn Express franchise license for the hotel operating at this address. In Rattan’s supplemental affidavit, he states: “The correct legal classification of the Holiday Inn Express located at 601 NW Hwy. 24, Topeka, Kansas 66608 is Topeka Investment Group, LLC, doing business as Holiday Inn Express & Suites.’ ”
According to Rattan, Mycose Entrepreneur, Inc., and ARK Partners, LLC, share ownership of Topeka Investment, but Mycose manages the Holiday Inn. Because Mycose manages the Holiday Inn, Topeka Investment argues that First Management served an employee of Mycose, not of Topeka Investment.
Topeka Investment admits that “it is clear that where a corporate employee is personally served and it appears that the corporate employee is in charge of the business office, service is sufficient under K.S.A. [] 60-304(e)(2).” While this issue has not been raised in our courts, federal courts have applied the statute. In Sellens, a secretary was served at the front desk of the office. Even though she was not in charge of tire building, she signed for the service. The service was in substantial compliance with K.S.A. 60-304(e). 189 F.R.D. at 465. The court determined that where a corporate employee is in charge of an office at tire time of the service, even if not a manager or officer, personal service can be proper. We find that this also applies to a limited liability company.
Here, Petrie was in charge of the Holiday Inn front desk on December 11, 2010, at 7:03 a.m. when the process server served the petition and summons on Topeka Investment. Topeka Investment claims that Petrie was not authorized to receive service of process on its behalf. However, this is not necessary for effective service of process. See Sellens, 189 F.R.D. at 465. Petrie was the person in charge of the front desk at the Holiday Inn at the time. First Management complied with K.S.A. 2010 Supp. 60-304(e)(2).
Also, Topeka Investment was mailed a copy of the motion for default judgment on January 7, 2011, in care of Rattan at the Holiday Inn address. That motion was never returned to First Management, yet Topeka Investment claims that it did not learn of the lawsuit until March 9, 2011, when Kaw Valley Bank notified it of the request for garnishment. Topeka Investment took no action in response to the petition or motion for default judgment. It further claims that “[t]he only logical conclusion to draw from this fact is either: (1) Topeka Investment Group had no knowledge that a lawsuit was pending against it, or (2) Topeka Investment Group chose to ignore the lawsuit.”
Although Petrie remembered working at the time when the process server served the petition and summons, she did not “personally remember being served” or “what happened to the documents.” This does not lead us to the conclusion that Topeka Investment was not aware of the pending litigation as it claims. We find that where an employee of a limited liability company is in charge of one of its business offices at the time of the service of process, even if not an officer of that company, personal service on that employee is effective under K.S.A. 2010 Supp. 60-304(e)(2); therefore, service on Topeka Investment was effected by serving Petrie at the Holiday Inn.
Default Judgment
A decision to set aside a default judgment rests within the discretion of tire district court. This decision is subject to review under an abuse of discretion standard. See K.S.A. 2010 Supp. 60-255(b); First Nat'l Bank v. Sankey Motors, Inc., 41 Kan. App. 2d 629, 634, 204 P.3d 1167 (2009). “Generally, the trial court’s decision is protected if reasonable persons could differ upon the propriety of the decision as long as the discretionary decision is made within and takes into account the applicable legal standards.” State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006). Judicial discretion is abused when no reasonable person would agree with the decision of the trial court. Hoffman v. Haug, 242 Kan. 867, 873, 752 P.2d 124 (1988).
Default judgments are not favored by the law but are necessary when the inaction of one party frustrates the administration of justice. Jenkins v. Arnold, 223 Kan. 298, 299, 573 P.2d 1013 (1978). The court may set aside a default judgment for good cause. Reliance Insurance Companies v. Thompson-Hayward Chemical Co., 214 Kan. 110, 116, 519 P.2d 730 (1974). A motion to set aside a default judgment will only be granted if the movant has proven by clear and convincing evidence “(1) that the nondefaulting party will not be prejudiced by the reopening, (2) that the defaulting party has a meritorious defense, and (3) that tire default was not the result of inexcusable neglect or a willful act.” Montez v. Tonkawa Village Apartments, 215 Kan. 59, 64, 523 P.2d 351 (1974).
On appeal, Topeka Investment argues that First Management will not be harmed by reopening this suit because First Management will merely have to prove its case. This general statement, however, does not prove any lack of prejudice by clear and convincing evidence. See Montez, 215 Kan. at 64.
Next, to show that it has a meritorious defense, Topeka Investment restates the argument that the district court abused its discretion in failing to set aside tire default judgment because it was not properly served. However, as previously discussed, First Man agement properly served Topeka Investment. “[W]hen a defaulting party has shown no meritorious defense, a trial court is precluded from granting relief.” Midland Bank of Overland Park v. Rieke, 18 Kan. App. 2d 830, 835, 861 P.2d 129 (1993).
Topeka Investment concludes by arguing that its lack of response to the lawsuit was excusable. Generally, “a litigant should not be unnecessarily penalized for the simple neglect of [its] agent.” Montez, 215 Kan. at 64. The burden to show excusable neglect is on tire party seeking an extension of the time limitation. Excusable neglect has no clear definition and must be determined on a case by case basis. Jenkins, 223 Kan. at 299.
Topeka Investment argues that this case “mirrors the facts in Montez,” where an apartment manager misplaced the petition and did not notify the owners. Here, Topeka Investment ignored First Management’s multiple demands for payment. First Management properly served Topeka Investment as required by K.S.A. 2010 Supp. 60-304(e)(2). First Management further notified Topeka Investment of the motion for default judgment. These facts do not illustrate excusable neglect. Further, this case is unlike Montez, where our Supreme Court readily found the other elements in favor of setting aside a default judgment. 215 Kan. at 65-66.
Even if Topeka Investment was able to prove by clear and convincing evidence that its failure to respond was based on excusable neglect, it has not set forth any factual basis regarding the first two Montez requirements. Topeka Investment alleged at oral argument that it claimed a meritorious defense to the lawsuit in its motion to set aside the default judgment; however, the motion only stated that it “has a meritorious defense.” Notwithstanding Topeka Investment’s attorney’s assertion, it provided no facts to support its broad allegation. In order to prevail, it must prove all three elements for this court to reverse the district court’s denial of the motion to set aside the default judgment. We find no merit in Topeka Investment’s appeal.
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Allen, J.
The Consolidated Cattle Company sold P. Millheiser 320 head of three and four-year-old steers, to be delivered at Virgil, Kansas. The sale was made at Clarendon, Texas. Thomas Carson, the general manager of the Cattle Company, made a written contract with the Fort Worth & Denver City Railway Company for the transportation of the cattle to the place of delivery. The line of road of that company connects with the Atchison, Topeka & Santa Fe at Pan Handle City. The cattle were loaded at Clarendon in twelve cars, and transported to Pan Handle. At that place they were delivered to the Santa Fe Company under the written contract, which was ratified by its agent. The train proceeded at an ordinary rate of speed, with only one delay of about half an hour, to within a short distance of Kiowa, Kansas. There the engineer cut the engine off the train, and ran ahead to Kiowa for water. The engine was detached from the train between four and five o’clock on the morning of December 7. It had been snowing during the night and sometime in the morning the wind commenced to blow and the snow to drift. It continued to blow with increased violence through the day, and the engine did not reach the train uhtil about eleven o’clock on the morning of the eighth, when it was again coupled to the train, and proceeded without further delay to Wellington, where the cattle were unloaded and sold.
This action was brought by the Cattle Company against the Railroad Company, to recover damages-for the injuries sustained by the cattle through the delay in transportation. It is alleged in the petition that the engine used was old and unfit for use ; that by reason of its condition, a sufficient quantity of water and coal could not be carried to supply it from one station to another ; that the engine was detached from the train at the point where it was delayed near Kiowa, because the supply of coal and water had been so nearly exhausted that it could not draw the train ; that the defendant’s servants after having coaled and watered the engine negligently delayed returning to the train until the snow drifts prevented them from doing so, and that the defendant was negligent in failing to provide and use proper appliances to enable the train to proceed within a reasonable time. At the trial a large amount of conflicting testimony was taken, on which the jury found for the plaintiff, and assessed its damages at $2575. Answers to special questions submitted were also returned. The defendant moved for a judgment in its favor on the special findings notwithstanding the general verdict. It also moved for a new trial on all the statutory grounds. When these motions were called, counsel for the defendant, asked to be heard in argument on both motions. The court refused to hear him, and rendered judgment in favor of the plaintiff on the verdict. This refusal is assigned as error.
The parties to a cause pending in a court have an absolute right tó be heard, not only at the trial oj the issue °f fact but also on the motions addressed to the court involving the merits of the controversy. While this exact question has perhaps never been presented to this court, the principle is declared in many cases. Douglass v. Hill, 29 Kan. 527; The State v. Bridges, 29 id. 138; K. C. W. & N. W. Rld. Co. v. Ryan, 49 id. 1, 30 Pac. 108; Larabee v. Hall, 50 id. 311, 31 Pac. 1062, and cases cited. No court is ever warranted in assuming that it fully understands the merits of a cause until it has heard the parties to it. It is always permissible to limit arguments of counsel to such reasonable time as may be necessary for the presentation of the matter under consideration. If the judge already has a well-defined opinion concerning the matter upon which he is about to pass, he may decline to hear the party in whose favor he intends to decide, but he should never refuse the other party a fair chance to convince him that he is about to commit an error. Possibly it might be held that the error in refusing to hear an argument on the motion for judgment on the special findings is not sufficient to warrant a reversal of the judgment when this court is. satisfied that the question was correctly decided by the trial court. But the motion for a new trial involved not merely the rulings of the court during the progress of the trial, the instructions to the jux'y, and other questions of law affecting the result, but also the merits of the whole case on the testimon}^. It was incumbent on the trial court to review" the whole case, and to pass his judgment on the justice of the verdict.
This court, it has been said in numberless cases, can never be in as favorable a position to weigh conflicting testimony and determine questions of fact from, oral evidence as the trial court. On a motion for a new trial the attention of the court is for the first time challenged to the questions of fact in the case. It is at the same time challenged to all matters involved in its final detex’mination. We cannot give any sanction to the denial to a party of all opportunity to be heard on a matter of such importance. The refusal of the court to hear argument on these motions is exceedingly unfortunate. We have before us a record of more than eight hundred pages. A re-trial will be tx’oublesome and expexxsive to the parties. It is very probable that an argument, no matter how extended, would have failed to induce the court to rule differently on the motion. A little time devoted to the hearing might have avoided all this unnecessary trouble. Yet we see no ground on which we can sustain a decision following an absolute denial of all right to be heard on the matter under consideration.
While our reversal of the case will rest mainly on' this error, some other questions likely to recur at another trial require attention. Witnesses were permitted to testify to the statements made by the trainmen with reference to the ^ cause of delay while the train was standing near Kiowa. These declarations were admitted as res gestae. It is contended that some of them were, in fact, nothing but statements concerning past occur:' rences, that they were in the nature of admissions, and as such not binding on the Railroad Company, It is often a matter of much difficulty to determine just what declarations are so connected with the transaction under consideration as to be properly admissible in evidence. The train with the plaintiff's cattle. on board was at a standstill from early in the morning of the seventh till nearly noon of the eighth. During that time conversations were had between those in charge of the stock and the trainmen. Such statements as were made by the engineer and conductor, as reasons why they did - not then proceed on the journey with the cattle, were admissible as a part of the res gestae. So, also, communications made by the brakemen to the conductor with reference to the performance of their duties and the existing condition of the train were proper. But such statements as were mex-e naxTations of past events, not explanatory of the existing condition of the train, should have been excluded. In Coal Co. v. Dickson (55 Kan. 62) it was said :
“ The general rxxle is, that admissions of an agent, in ox’der to bind the principal, must be made in the course of his employment and in connection with and as explanatory of something that he does by authority of his employer. Mere narrations of past occurrences, or admissions disconnected from any service for his employer, are subject to the objections which exclude hearsay testimony.”
The trainmen were charged with the duty of transporting the cattle to their destination. They were the representatives of the Railroad Company in the performance of that service. Their conduct and declarations explanatory of their conduct were binding on the defendant.
We do not deem it necessary to pass on each of the questions objected to. None of the objectionable testimony appears to us of such importance as to compel a' reversal of the case, but on a re-trial the court should enforce the rules governing the admission of such testimony with a little more care and strictness. ‘
There is no merit in the claim that the plaintiff had not sufficient interest in the cattle to maintain this action. Though a sale to Millheiser had been agreed on, the cattle were to be delivered by the plaintiff at Virgil, Kan. Millheiser saw the cattle at Wellington, and refused to receive them in their damaged condition. The title to the property had not passed. They were in course of transportation, under a contract made by the plaintiff with the defendant, and it is clear that the plaintiff had a right to maintain an action on it. Nor does there appear any difficulty with reference to the service of the notice required by the shipping contract, of the plaintiff’s claim of damages. The defendant was informed both by verbal and by written notice of the plaintiff’s claim, and had ample opportunity to inquire into the circumstances. The motion for judgment in favor of the defendant on the special findings is without merit, but for the reasons already-stated the judgment must be reversed and a new • trial ordered. | [
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Doster, C. J.
This was an action by plaintiffs in error to recover damages caused by the escape of fire from one of the locomotives of defendant in error. A general verdict was returned in favor of the plaintiffs, and certain findings of fact were also made by the jury. Judgment was rendered upon the verdict and findings in favor of the plaintiffs. Upon proceedings in error to the Court of Appeals, the decision of the District Court was reversed, with directions to enter judgment for the defendant upon the findings of the jury notwithstanding the general verdict. 44 Pac. 904. From this order of reversal, error is prosecuted to this court. The allegations of negligence in the petition of plaintiff were that the defendant
“ — managed its train carelessly and negligently, and failed to employ suitable means to prevent the escape of fire from the engine that was attached to and drawing said train, and also carelessly and negligently permitted dead and dry grass, weeds, stubble and other combustible materials to remain on the right of way of said defendant Company, and within two hundred feet adjacent to its said track, so that by reason of its carelessness and negligence as aforesaid, and without the fault of these plaintiffs, fire escaped from said engine of said company and set fire to the dead and dry grass, weeds and stubble and other combustible materials on its right of way, . . . and by reason of a continuous body of dead and dry grass, weeds, and other combustible materials, and without the fault of these plaintiffs, said fire was communicated to the premises of these plaintiffs.”
The special findings of the jury fully acquit the Railway Company of negligence in failing to supply its locomotives with the best and most approved appliances to prevent the escape of fire, and also acquit it of negligence in failing to employ careful and competent employees to manage its locomotive; and the jury also specially found that the locomotive had been carefully inspected at the last opportunity preceding the time of the fire, and also that at the time the fire escaped the locomotive was managed in a skilful and proper manner. No special findings were made as to whether combustible material had been allowed to accumulate on the right of way. It was found, however, that the defendant had burned a strip of ground, extending from its track, one hundred and forty feet wide at the point where the fire escaped. The right of way of the defendant in error, unlike those of other railroad companies in the State, is four hundred feet wide, at the point where the fire occurred. The general verdict being in favor of the plaintiff, the accumulation of combustible'material, outside the burned strip and inside the limits of the right of way, is therefore to be inferred, under the rule that a general finding is inclusive of all the special matters necessary to uphold it. We do not have the evidence before us, but the case was discussed by the Court of Appeals, and by counsel for both parties in this court, upon the assumption that the fire which escaped from the locomotive blew across the fire-guard of one hundred and forty feet, and communicated to the dry grass and other combustible material, between the fire-guard and the outer edge of the right of way. We shall, in consequence, so treat .the case.
We agree with the Court of Appeals that the findings show that the escape of the fire from the engine was accidental. However, a railroad company must do more than provide its locomotives with proper appliances to prevent th'e escape of fire and keep them in proper repair. It must do more than employ skilful and careful employees in the management of its locomotives ; and must do more than require of such employees skilfulness and diligence in the performance of their duties. It must keep its right of way clear of combustible material, so as to prevent damage from fires accidentally escaping, or, must keep such portions of its right of way clear as in the light of reason and experience should be done. It is known that fires do escape accidentally from locomotives, however well constructed and managed ; therefore, precautions to prevent the spread of such accidental fires should be taken. Keeping the right of way or a necessary part of it reasonably free from combustible material, is the chief, if not the only, precaution that can be taken to prevent the occurrence of such fires.
The defendant in error and likewise the Court of Appeals say this precaution was taken in this case. However, the claim, as made, is one of law and not of fact. It is said that in law the burning of a fire-guard one hundred and forty feet wide is a sufficient precaution. This assertion is based upon the claim,.first, that reason and experience so teach, and, second, that the Legislature has impliedly so declared, by limiting the width of a right of way to one hundred feet in most cases. Neither of these claims is tenable. No court can say, as matter of law, that a fire-guard one hundred and forty feet wide constitutes a reasonably secure ' protection against the escape of sparks from locomotives. It has no judicial knowledge upon the subject, and is not permitted to reason about it. The question is entirely one of fact for the jury. Nor is any implication upon the subject derivable from the fact that the width of railroad rights of way is usually fixed at one hundred feet. If the legislative judgment as to the necessities of a railroad company in this respect is to be taken into account, it may be said, with a propriety equally as great as that with which the defendant in error urges its claim, that two hundred feet should be the required width of a railroad fire-guard; at least, such may be said in the case of the defendant in error, because, in the grant made to it by Congress, the width of-its right of way was fixed at four hundred feet. Eminent domain is not exercised in behalf of railroad companies with any special view to the exterior boundaries of fireguards to be burned by them ; but, is exercised with a view to the construction of its tracks, switches, depots, etc. Nor does it make any difference that in the case of other roads than the Union Pacific the burning of fire-guards fifty feet on each side of the track is the exercise of reasonable diligence, while, as to it, the burning of fire-guards one hundred and forty feet or even one hundred and ninety feet on each side of its track, may not be the exercise of reasonable diligence. It is reasonable diligence to burn the narrower width in the case of the narrower rights of .way, because the companies cannot burn beyond their rights of way without incurring the penalties of trespass upon private grounds. In such cases the burning of a fire-guard to the limits of the right of way may be regarded as reasonable diligence, even though it be not effectual to prevent the spread of fire.
However, it is urged that the allegations of the petition as to the proximate cause of the fire are not allegations of negligence in allowing the accumulation of combustible material upon the . .. J „ , .... . „ right or way, but are allegations ot negligence in the use of defective appliances to prevent the escape of fire and in the careless and negligent management of the locomotive by the employees. It is urged that the petition makes no claim of negligence as to the growth or accumulation of combustible material upon the right of way, except as a cause secondary to the negligent use of defective machinery and negligent train management, by the employees. In other words, it is claimed that, according to the petition, the growth or accumulation of combustible material upon the right of way was not negligence, except as defective machinery and unskilful train management, made it such ; and, inasmuch as the jury found the company guiltless of negligence in respect to its locomotives and the employees managing it, no recovery can be had.
We hardly need to invoke the rule, declared in section 115 of the Code, that the allegations of a pleading should be liberally construed with a view to promote substantial justice between the parties, to show that the defendant in error is mistaken in its interpretation of this petition ; but, certainly, under the requirements of that provision, it cannot be said that the plaintiffs meant to defend their charge of negligente as to combustible material upon the right of way upon their charge of negligence as to defective machinery and unskilful train management, or meant to allege one as the primary and the other as the secondary cause of the fire. Such interpretation would be strained and harsh rather than liberal and benignant.
The petition alleged against the defendant, first, negligent management of the train, and lack of suitable means to prevent the escape of fire ; and, second, negligence in allowing combustible material to accumulate on the right of way, “so that by reason of its carelessness and negligence as aforesaid [evidently referring to all the specified acts of negligence] fire escaped from said engine of said company and set fire to the dead and dry grass,” etc. The stress of argument for defendant in error as to the construction of these allegations is laid upon the clause — ‘ ‘ Fire escaped from the engine.” This it is contended limits the allegations of negligence to the escape óf the fire from the engine, and is not inclusive of the causes of the spread of the fire after it escaped. Grammatically this is perhaps true, but in the evident intent of the' pleader it is not true. The making of an allegation of negligence in allowing the accumulation of dry grass, etc., on the right of way must be attributed to some reasonable, design upon the part of the pleader, and it can be attributed to no such design unless we \construe it as the statement óf a proximate cause of ¡the escape of the fire. If the pleader intended to limit his statement of proximate causes to his allegations of defective machinery and unskilful train management, no need then to allege negligence in allowing combustible material to accumulate on the right of way. The defendant would be liable for the negligent escape of the fire from the engine, whether such fire blew entirely across the right of way and far beyond it. before igniting the dry grass, or whether it fell immediately by the side of the track and from thence ignited and spread. If injury result from a particular act of negligence as a proximate cause, no need then to characterize the secondary and intervening causes as negligent. They are not negligent with respect to liability for the effect produced through their agency. The fact that the petition in this case charges the accumulation of combustible material on the right of way, as negligence, justifies us, in the liberal view that must be taken of pleadings in order to give effect to the intent of the pleader, in holding that it was intended as an allegation of primary cause of the fire,
The jury found that an “unusually high wind” was blowing at the time of the escape of the fire. What an unusually high wind is, with respect to the duty of railroad companies in guarding against the escape of fire, we do not know. The jury found a general verdict against the defendant, notwithstanding the blowing of this kind of wind, and it must, therefore, be assumed that such wind was not of such character as to absolve the railroad company from liability for the escape of the fire.
The judgment of the Court of Appeals is reversed, and that of the District Court is affirmed. | [
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Dostbr, C. J.
Angelí Matthewson & Co. a firm of real estate loan and collection agents, made an assignment to the defendant in error, Clinton L. Caldwell, as assignee, for the benefit of their creditors. One of the creditors was the plaintiff in error, the Travellers Insurance Company. They were indebted to it for collections made on its loans and from the tenants of its lands. It was claimed by the plaintiff in error that according to the course of dealing between the parties these collections should have been remitted immediately upon their receipt, but that this was not done then or at any time thereafter. * After the assignment, suit was brought to declare a trust, in Matthewson & Co. and the assignee, for the plaintiff in error in respect to these collections, and for an order upon the assignee to pay the amount as a preferred claim. The District Court gave judgment for the assignee, and the plaintiff brings the case to this court for review. Findings of fact were made, a part only of which it will be necessary to notice. These are as follows :
“ 10. No part of the estate received by the assignee was purchased or obtained by said Matthewson & Co. from the proceeds of the collections hereinbefore referred to.
“11. All the assets of said firm coming into the hands of the defendant as assignee were owned by said firm prior to receiving any of the moneys on the collections hereinbefore referred to.
“ 12. The moneys so collected for said plaintiff by said Matthewson & Co. were used by said firm in payment of debts and expenses of said firm.”
“14. The plaintiff’s said claim for $1317.19 and $1259.83, aggregating $2577.02, for moneys collected and received by Matthewson & Co. as hereinbefore found, were duly presented to the defendant assignee for adjustment and allowance at the time and place advertised and were then and there adjusted and allowed by said defendant assignee as trust claims.”
The first three of these findings bring the case within the rule of Burrows v. Johntz, (57 Kan. 778, 48 Pac. 27). It was held in that case that, “to render an assignee liable to account to a party who had placed money in the hands of his assignor as for a trust fund, it must appear either that the fund actually came into the hands of the assignee, or that it went to swell the estate of the assignor, which he in fact' received.” According to the above findings, the assignor did not come into the possession of the moneys received on the collections in question, nor into the possession of any property into which the proceeds of such collections went. The fact, as shown by the twelfth finding, that the collections were used by Matthewson & Co. in the payment of debts and expenses, does not suffice, in view of the other findings, to charge the estate with a trust in the hands of the assignee. The fund itself, or something into which it has gone and which stands as its representative, must be on hand, subject to identification, and separable from the general assets, in order to charge the assignee with the trust; or, if the fund has been so commingled with the general assets as to be incapable of identification or tracing, the estate which came to the assignee must have been augmented or bettered, in an appreciable and tangible way, in order to charge it with the trust. The mere saving of the estate by the discharge of genera] indebtedness otherwise payable out of it, or by the payment of the current expenses of the business, is not an augmentation or betterment of the estate, within the meaning of the rule. If the estate has not been increased by specific additions to it, or if what previously existed has not been improved or rendered more valuable, it has not been impressed with the trust claimed.
The cases of Myers v. Board of Education, (51 Kan. 87, 32 Pac. 658), and Hubbard v. The Irrigation Co. (53 Kan. 637, 36 Pac. 1053), are cited as sustaining a contrary view. We are of the opinion that these cases have carried the doctrine of the impressibility of insolvent estates with trusts to the full length, but a majority of the court also believe that they are to be distinguished from this case rather than criticised as containing any error of decision. It is true that in the first of these cases it was found that the trust money “had been mingled with the general funds of the bank, and used in the ordinary course of its business and the payment of its debts,” and that in the last case it was found that the trust money “was wrongfully mingled with the funds of the bank, and used in the usual and ordinary course of the banking business ” ; but in neither of these cases was it found that the use of the trust money did not go to the augmentation or betterment of the estate. Such in effect was found in this case by the tenth and eleventh findings above quoted. In these findings it was specifically declared that none of the estate received by the assignee was purchased or obtained from the proceeds of the collections in question, but that all of such estate had an existence as the property of the assignors prior to the making and conversion of such collections. It may be assumed, where trust moneys are used in the payment of the indebtedness of the trustee and in the prosecution of his current business, that his estate is augmented or bettered thereby, whether such moneys can be traced into any specific property or not; but the findings ,in this case preclude the making of such assumption.
It is claimed that under the facts of the fourteenth finding the assignee is estopped to dispute his liability as a trustee in respect of the plaintiff’s claim ; that having adjusted or allowed it as a trust claim, it must be paid by him as such. In the recent case of Matthewson v. Caldwell, ante, p. 126, 52 Pac. 104, we held that under the statute an allowance of a claim by an assignee was binding upon him and could.not thereafter be questioned by him in a collateral proceeding. However, an adjudication of the trust character of a claim, and in consequence its preference over others in the distribution of the fund, might not estop the assignee as does an adjudication of the existence and amount of such claim; but whether such is the case we need not inquire. An examination of the record shows that the fourteenth finding is wholly unsupported by the evidence. The allowance of the claim as a trust demand was averred in the petition but denied in the answer, and the evidence fails to show that it was even allowed at all by the assignee. The following is all the record contains upon the subject: “It is admitted that the claims and accounts sued upon by the plaintiff in this action were presented to defendant assignee on day of adjustment, to wit, December 15, 1893, for adjustment and allowance on said day.” What disposition was made of the claim by the assignee is nowhere shown.
The judgment of the court below is affirmed. | [
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Allen, J.
'W. C. Long brought this suit against the City of Emporia, alleging in his petition that he was the owner of certain lands therein described, and bounded by the centre line of the Cottonwood River ; that the defendant, a city of the second class, had constructed a sewer emptying into the river ninety rods above the west line of the plaintiff’s land; that prior to the construction of the sewer the river afforded an abundant supply of pure running water for bathing, washing, and watering stock, and of clean and healthy ice ; that by the construction of the sewer and the discharge thereof into the river the water had been rendered unfit for such uses and emitted unhealthy and noxious odors ; that such injuries were permanent, and to the damage of the plaintiff twenty-two hundred dollars. The petition further alleged that the plaintiff was a resident owner in the actual possession of the land, and that the sewer was constructed without notice to him of any condemnation proceedings and without any condemnation of the land for such uses.
To this petition the defendant answered, first, with a general denial, and second, by setting up condemnation proceedings. The answer stated that ordinances for the construction of a system of sewerage were duly passed by the city council and approved by the mayor ; that a resolution was duly passed appointing three disinterested resident tax payers of the city as appraisers to appraise the damage caused by laying off and constructing the sewer and connecting it with the. Cottonwood river; that the appraisers were duly sworn, and, having given five days’ notice in the official paper of the city of the time and place when and where they would convene to discharge their duties as such appraisers, and having posted a copy of such no tice, at the point where it was proposed to connect with the river, five days before such condemnation, jn’oceeded to determine the damage which would result to all persons by laying such sewer and connecting the same with the river; that they duly reported their doings to the county clerk and filed a copy of their report with the county treasurer; that no appeal was ever taken from the appraisement, and that the sewer was afterwards constructed in accordance with the ordinances and condemnation thereunder. A copy of the report of the commissioners was attached to the answer, showing that they had proceeded to appraise the damages caused by laying off the right of way, and laying the sewer pipe and connecting the same with the river; that they went to, upon, and along the right of way, and along the Cottonwood River, and viewed and inspected the same ; that they appraised the damages caused to each and every person by laying off the right of way and laying the sewer and connecting the same with the river, and allowed damages to persons therein named. But neither the plaintiff nor his land was named in the report, which contains this statement —
“No other person, through or along whose land the Cottonwood River runs, will bb damaged by the laying off of said right of way, and by laying sewer pipes therein and connecting,the same with the Cottonwood River.” ■
The plaintiff demurred to the second defense on the general ground and this demurrer was overruled by the court. Error is assigned on this ruling.
We deem it necessary to consider only a single proposition discussed by counsel. Paragraph 837 of the General Statutes of 1889, (Gen. Stat. 1897, ch. 37, §§ 153-4-5,) regulates the manner of making condemnation for a right of way for the pipes and drains, and connecting the same with a river, and contains this provision :
“The city marshal shall serve notice upon each known resident owner of land to be taken, and notice for five days prior to such condemnation shall be posted at the point where it is proposed to connect with such creek, ravine or river.” § 154.
Notice of the condemnation was published in a newspaper, and posted at the mouth of the sewer in the manner required, but no notice was served on the plaintiff by the marshal. The plaintiff claims that this notice is jurisdictional, and that no -. , • , ' ...... , , , valid condemnation could bemadewitnout it. In answer to this, it is said on behalf of the defendant, first, that it is not shown that the plaintiff was a known resident owner. The allegations of the petition are that he was and for more than five years had been in the actual possession, and the resident owner, of the land described in the petition. This seems to be a sufficient statement that he was a known resident owner. The term “resident owner” would seem to mean the owner residing on the land sought to be taken ; otherwise there is nothing, to indicate what the word “ resident ” would signify. Where the owner resides on the land, we think it must be presumed that he is known, and that it is not for the city or the commissioners it appoints to make condemnation, to say that although he resided on the land they did not know it.
Assuming that Long was a known resident owner, counsel for the city contends, second, that he was not the owner of land taken, for the City did not enter on his land. No ditches were dug through it. No pipes were laid across it. He was a riparian proprietor, but the river flowed on after the construction of the sewer the same as before, and he was left with all his property intact. This argument has no tendency to relieve the City. If the condemnation proceedings are of any validity as against the plaintiff, it is because the City took through such proceedings a right to flow its sewage down the river over the plaintiff’s land. If the plaintiff’s estate was not diminished by the condemnation proceedings and rendered servient to the rights of the City to discharge its sewage through the river, the City took nothing and the plaintiff lost nothing. If this contention be sound there has been no condemnation, and the plaintiff is entitled to recover at least for damages sustained up to 'the time of the commencement of the suit. The sound construction of the'statute, however, would seem to be that the City may condemn, not merely a route necessary for connections with the river, but the right to discharge the sewage into the river. The argument of counsel, that if the plaintiff may recover where his land has not been duly condemned, every riparian proprietor below him, even to the Gulf of Mexico, may also recover, is without force. We have nothing to do with the practical question as to how far the stream may be contaminated by this sewer to such an extent'as to warrant the recovery of damages. The averments of the petition show that the water passing through the plaintiff’s land was contaminated to such an extent as to render it unfit for use. It does not admit of doubt that this was an injury to him and to his land. For this injury he is entitled to recover, unless the City, through condemnation proceedings, has cut off his right to claim such damages.
It will not do to say that the proceeding to determine the rights of a riparian proprietor ownin'g land adjoining a water course into which the sewage is emptied is essentially different in any ,. , e ,1 , . n /» particular irOHl that provided tor COlldemning the route along which pipes are to be laid. In each case the city seeks to obtain a right it does not possess without such proceedings. Wherever a valid condemnation is made and no appeal is taken, the right to maintain an action for damages is cut off. But to make the condemnation effectual every essential requirement of the statute must be complied with. One of these essentials is that notice shall be given to known resident owners of land 'affected. The plaintiff was a known resident owner and no notice was given to him. He is not bound by the award, and was under no obligation to appeal from it, for he was not a party to it.
The judgment is reversed, and the cause remanded with directions to sustain the demurrer. | [
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Johnston, J.
This was a proceeding-by the State of Kansas, brought upon the relation of the county attorney, to remove J. B. McPherson from the office of county clerk of Sheridan County. An order was made by the board of county commissioners authorizing the payment of a bounty of five cents each for rabbits, and one dollar each for wolves, captured and killed within the limits of the county of Sheridan. The scalps of the animals, containing both- ears, were to be delivered to the county clerk, whose duty it was to cause them to be destroyed. It is alleged that, instead of destroying the scalps, he fraudulently entered into collusion with several persons, and allowed the scalps upon which bounties had been paid to be taken out with the understanding that they were to be returned again and bounties received upon them a second time, which bounties were corruptly divided between the county clerk and those acting in collusion with him.
The allegations of wrong and fraud were sustained by ample testimony, and in fact the charges were substantially conceded by McPherson. He admitted that the scalps were taken out when they should have been destroyed, and that money was drawn from the county as bounties on scalps which had been presented more than once, with his knowledge, and that he received a portion of the bounties so wrongfully obtained from the county. When he learned that a disclosure had been made and that proceedings were about to be taken against him, he returned the money to the county treasurer, who gave him a receipt for it, dating the receipt, at the request of McPherson, some weeks prior to the time of payment. In extenuation of his conduct, he stated that he learned that there ivas a scheme on hand by some persons to entrap him and cause his removal from office by inducing him to return the scalps and allow duplication of the payment of bounties thereon, and that he decided to accept their proposition and see to what extent they were willing to go ; but that he had no intention of defrauding the county out of any money, and in proof of-his innocence he cites the fact that the money was returned after the discovery was made'.
The court properly directed a verdict in favor of the State. The admissions of the defendant left no question of fact for the jury to try. In collusion with others he used his official . _ _ .. ,. authority to wrongfully draw out public moneys, and the. fact that he returned the share which he obtained does not mitigate his misconduct nor relieve him from the penalty of forfeiture which the law declares.
The claim that lie acted with good motives is not easily understood. He knowingly drew orders on the treasurer, the payment of which operated as a fraud upon the county; and more than that, he actually drew part of the money upon the fraudulent claims himself from the county treasury. It is true, he says that this was done to uncover a.conspiracy against him, and to ascertain how far those acting in collu sion with, him would go in their raid upon the treasury. It is noticeable, however, that no money could have been obtained except- upon orders signed officially by him ; also that the fraudulent practice continued for a long time, and the fruits of the frauds were divided with and kept by him until the public officers learned of the frauds and' were about to institute proceedings against him.
If it were conceded that his intentions from the beginning were to detect the wrongs of others and finally to return the money received by himself, it would not excuse his misconduct. It is a lame apology to say that he committed an offense in order to detect the commission of another. What he did was done purposely and wilfully. It was done in his official capacity and for a pecuniary benefit to himself. From his own admissions it must be held that it was fraudulently and corruptly done, and therefore the court rightly held that he had forfeited his office.
An attack is made upon the act authorizing the payment of bounties on the scalps of wild animals (Laws 1889, Ch. 90, Gen. Stat. 1889, ¶ 1665; 1897, ch. 27 § 173), because it purports to repeal chapter 73 of the. Laws of 1873, instead of the Laws of 1885. It may be remarked, however, that the act purports to repeal all laws in conflict with that enacted. However, the validity of the law is a matter of no importance so far as this proceeding is concerned. Whether valid or invalid, the defendant was guilty of official misconduct in wrongfully colluding with others to perpetrate a fraud upon the county. He acted in his official capacity, and, as before stated, if he had not officially signed the orders, the money could not have been obtained. Neither is it any excuse for him that the chairman of the board of county commissioners did not join with him in the execution of the orders. The county clerk is authorized to sign all orders issued for the payment of money upon demands or claims allowed against the county. They were signed by him. in his official capacity, and the fact that the orders were irregularly issued will not exempt him from the consequences of his faithless and fraudulent conduct.
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Doster, C. J.
This is an appeal from a judgment of conviction of murder in the second degree. Summarized, the bill of exceptions shows that the defendant is a native of Germany, who came to this country three years and a few months preceding the homicide in question and had since his arrival acquired a fair knowledge of our language. In September, 1896, he entered the employment of Judge Barzillai Gray. Judge Gray’s house and farm are in the outskirts of Kansas City, Wyandotte County, and the chief duties of the defendant were to protect the premises from the intrusion and spoliation of trespassers and petty thieves, whose depredations .were frequent and annoying. To enable him to perform these duties under the sanction of official authority, he was, at the request of the wife of Judge Gray, appointed a deputy sheriff in Wyandotte county.
. April 25, 1897, one Joseph Lindsay rented a portion of Judge Gray’s farm lying between the Missouri Liver and the Missouri Pacific Lailroad, which runs northwest from Kansas City. Of this tenancy, however, the defendant was ignorant. On the afternoon of April 27, Joseph Lindsay’s two sons, Lussel and Milton, and a young man named Esley Maulding, went to work on the rented ground. They took with them a wagon and team, hoes, and a dog. About two ■o’clock, while the Gray family, including the defendant, were dining, a shot was heard by them in some woods in the direction of the place where the young men were working. The defendant was directed to ascertain concerning it and to arrest the hunter. He put' on a revolver and belt and went down where the young men were. He approached them and accused them of shooting on the premises, and demanded to know where their gun was. Lussel Lindsay at first said that if they had a gun it was in the wagon. Subsequently, during the altercation which followed, he denied having a gun. The defendant looked into the wagon and saw no fire-arm, but accused Lussel Lindsay of having one, and told him he arrested him for shooting or trespassing ; and, taking out his revolver, seized the dog and threatened to kill it. Russel Lindsay warned him not to kill the dog. He released his hold on the animal and, menacing Russel in the face with his revolver, threatened to blow his head off. Russel told him to to take his revolver out of his face. The defendant, however, continued his demonstrations and threats, and called to one John Harris, who was working near by, to come and help him arrest Lindsay. Lindsay got hold of the defendant's weapon and took it away from him. Harris came upon the scene and told Lindsay to give back the revolver, as the defendant was an officer and was entitled to carry' weapons. Lindsay at first refused, saying that he would give the revolver to him (Harris), but that the “ Dutchman was too big a fool to have it, and might hurt some one with it." Harris told him to give it to the defendant and he would see that he did no harm with it. Lindsay thereupon gave up the revolver. The defendant says that, a favorable opportunity occurring, he took it from Lindsay forcibly. This however is unimportant. Upon repossessing himself of the weapon defendant commenced to strike at Lindsay with it. He did so a number of times. Lindsay warded off the blows and retreated backwards, and presently turned and began to run in the direction of the railroad track and the city. The defendant followed, calling to him to stop, and, not being obeyed, fired a shot, probably in the air over the fleeing man, and then paused and fired a second time. The ball struck Lindsay in the back. He died from the wound the next day.
A freight train on the Missouri Pacific Railroad was passing at this time. Lindsay in his flight got upon the track immediately in the rear of the caboose after it passed. The first shot attracted the attention of a couple of trainmen who were sitting in the caboose. These men testified that at the second shot the defendant held his revolver four or five seconds in his hand, taking aim before firing. They could not tell, viewing the occurrence from, their position and distance, whether the defendant in firing his last shot supported his revolver and right hand with his left hand. Milton Lindsay testified that in firing the second shot the defendant held his revolver in his right hand supported by his left arm for a “considerable length of time.” Esley Maulding testified that in firing the second shot defendant held the revolver - in both hands for “quite a little white, some considerable time.” Emily Barnett, a young woman who viewed the occurrence at a short distance, testified that in firing the second shot the defendant “held the pistol on him some little time; held it down just as though he was taking aim.” John Harris testified that in firing this shot defendant held his revolver “right up, two or three seconds.” Judson Mercer testified that in firing- this shot the defendant “just took deliberate aim and shot his last shot,” and that he aimed “as long as a man would shoot at a mark of any description.” This witness, Judson Mercer, is the man who did the shooting near where the Lindsays and Maulding were working and which attracted the attention of Judge Gray and the defendant.
Before dying, Russel Lindsay-made a statement, which was taken down in writing, and which was read in evidence as a dying declaration. It is as follows :
“About 2 p. m. on April 29, 1897, I was down near the Missouri Pacific tracks, east side of the fence on a piece of ground that father was putting in potatoes. When a Dutchman who works for Gray was running towards Gray’s house and when he came back he had a revolver in his scabbard or belt and belt strapped around him. When he came to.me and my brother and Esley Maulding lie asked me where my gun was. I told him if I had one it was in the wagon, meaning a wagon we had there at that time. We were joking, as I thought. There was a shot in the woods before this transaction. The woods were about a hundred yards east of us and this shot in the woods made the Dutchman mad. I never knew or was acquainted with-the Dutchman before to-day. I never talked to him in my life. When he came to me he held his revolver within three inches of my nose and said to me ‘ Give me your gun,’ and I told him he would have to find it and take your gun out of my face. And he said ‘ I will shoot you, will blow your head off.’ I stood and talked to him and he said to aman — he called to him : ‘ I deputize you to help arrest this boy.’ This man said nothing and the man came over to me and said nothing. And the Dutchman said, ‘Grab hold of this man and help take him along.’ The man asked, ‘ What is the matter ? ’ I did n’t answer, neither did the Dutchman. Then the Dutchman grabbed my dog and commenced to abuse him. I said, ‘Let that dog alone.’ Then the Dutchman commenced to abuse me and pulled his pistol and struck at my face and said he would ‘ knock my head off.’ I told him not to shake his pistol in my face and handle it so recklessly that he might hurt some ■one, and he said he would shoot my head off and again abused me and then shook his revolver in my face and I took it away from him. And the man with him said he would behave if I would give him back his gun. I did so, and he commenced to strike at me with his gun. I turned around and started away from him out to the Missouri Pacific tracks and turned down the track and he fired one shot in the air, and fired again and shot me in the back. He then came down to where I was lying and kicked me with his foot and said, ‘ Get up, you aren’t shot.’ I •couldn’t get up. He took hold of me and said, ‘Let’s ■see where you are shot.’ I said, ‘I am shot.’ He then left me and I have not seen him since. I make this statement in the fear of approaching death.”
After the shooting, the defendant returned to Judge Gray’s house, and from thence went into Kansas City and surrendered himself to the sheriff. In the main, the above-recited matters are undisputed, except that the defendant and the witness Harris claim that defendant was not the aggressor in the altercation which occurred before the shooting. They claim that his conduct was pacific and genteel, and that of Lindsay profane, boisterous, and insulting ; and that Lindsay assaulted the defendant. The defendant denied taking aim in firing the shots and claimed that the taking effect of the last one was unintentional. He claimed that Lindsay admitted that he had been hunting on the premises ; that he was endeavoring to arrest him for the trespass : that he thought it his duty as an officer to do so ; and that in pursuing him after the altercation he was endeavoring to apprehend him as an escaped prisoner.
The court refused to instruct that if the defendant had reasonable grounds to believe, from the acts and language of the deceased in his presence and hearing, that the deceased had committed a criminal trespass and intended to continue its commission, such acts, upon the part of the deceased were equivalent to the-commission of the trespass itself in the presence of' the defendant as an officer, and justified the arrest of' the deceased as for a misdemeanor committed in the-presence of the officer, and that, in making the arrest, the defendant as such officer was justified in killing, the deceased if necessary to overcome his resistance. On the other hand the court instructed the jury that, the defendant as an officer, had a right to arrest the-deceased if he had “reasonable cause to believe him guilty” of a criminal trespass, but that he could not lawfully kill him for the purpose of making such arrest or of retaining the prisoner’s custody after the arrest; and that if the deceased induced the defendant to believe that he had been trespassing and in tended to continue doing so, and thereby caused the defendant to believe he had a right to make an arrest, and the defendant, upon undertaking to do so was resisted, such facts did not constitute a justification for killing. The jury were however instructed that such facts, if believed to exist, should be taken into account in determining the state of defendant's mind, and determining the degree of his guilt. These instructions, on the one hand, and the refusal to instruct, on the other, constitute the claims of error chiefly relied upon.
It is supposed by the appellant that these claims of error force upon us a determination of the question whether an officer may lawfully kill if .. . . . necessary to do so m making an arrest for misdemeanor. That he may do so is ^contended by Mr. Bishop with a warmth and velieinence quite in excess of the usual temper of that cautious and dispassionate writer. Bishop's New Criminal Procedure (4th ed.), §§160-161 and notes. On the other hand, Mr. Wharton says :
“Unless it be in cases of riots, it is not lawful for an officer to kill a party accused óf a misdemeanor if he fly from the' arrest, though he cannot otherwise be overtaken. Under such circumstances (the deceased only being charged with a misdemeanor) killing him intentionally is murder ; but the offense will amount only to manslaughter if it appear that death was not intended." Wharton’s Criminal Law (10th ed.), vol. 1, § 404)
It will be observed that the views of both of these writers comprehend cases of lawful arrest; that is, cases where the officer was armed with a proper warrant of arrest, or, what constitutes an equivalent, where the misdemeanor was committed in the officer's presence. In the case under ■ consideration neither of these prerequisites existed. The defendant had no warrant of arrest in his possession, none had been issued, and no offense was committed in his presence. He was under no command from a court or magistrate to make the arrest, nor was any offense committed in his sight and hearing. This brings the question of the lawfulness of his conduct in attempting the arrest fully within the case of In re Kellam (55 Kan, 700, 41 Pac. 960). It was there held that a police officer had no authority, except by warrant, to make an arrest for a misdemeanor not committed in his presence, but of which he had what he deemed to be reliable information from others., notwithstanding an ordinance of the city and a statute of the State both assumed to confer the power. A reconsideration of that case convinces us anew of the soundness of the rule declared and of the applicability and strength of the constitutional prohibitions upon arbitrary arrests there quoted.'
The attempted arrest of Russel Lindsay, or his arrest, if it were such, was illegal; and his resistance to such arrest or his escape therefrom constituted no justification for the taking of his life. d & But the instructions in question were founded upon the hypothesis that the deceased, by his acts and language, induced the defendant as an officer to believe that he had committed a misdemeanor and intended to continue its commission ; and it is contended that in such cases the equivalent of a warrant, or of visual knowledge upon the part of the officer, is furnished. The defendant in his testimony said that deceased admitted he had been trespassing by hunting, but the instruction asked' in his behalf did not hypothesize such fact. Quite differently from that, it presumed a case in which the “acts and language of the deceased in the presence and hearing of the defendant were such as to induce a reasonable person to believe that he had committed an offense and intended to continue its commission.” From this, as a postulate, the court was asked to instruct the jury “that such acts upon the part of the deceased were equivalent to the commission of the crime, itself in the presence of the defendant as an officer.” .Other requests for instructions presupposed a case in -which the deceased deceitfully or falsely led the defendant to believe that he had committed a misdemeanor ; but, in our judgment, they were only varying expressions of the theory of the one specifically adverted to. Such theory is not the law. Whether a direct or open confession of guilt of a charge of misdemeanor, made to the officer, would justify an arrest by him, and, if so, whether a necessary killing to overcome resistance to such arrest or to recapture after an escape could be justified, are questions we need not try to determine ; they are not in the case. The rule in In re Kellam cannot be relaxed to permit arrests without warrant because the acts and language of an accused person are such as to induce the officer as a reasonable man to believe an offense has been or was about to be committed. The liberty of the citizen, and, in the contingency of the correctness of Mr. Bishop’s views before adverted to, his life, cannot be thus made to depend upon the correctness of a sheriff’s or constable’s inductive conclusions. The very case in hand illustrates the danger of such doctrine. Russel Lindsay’s acts and language induced the defendant to believe he had committed an offense ; so the defendant said. The fact, however, was that he had committed no offense. One had been committed, but by another person ; one with whom Lindsay had no connection and for whose acts he was in nowise responsible. The instructions asked were rightly refused and the one given contained no error except in a particular, not necessary to comment upon, which, was more favorable to defendant than the law allows.
Claims of error, other than the one above discussed, are the refusal of other requests for instructions, and the giving of certain other instructions ; the rejection of certain evidence ; the refusal of the court to require the State to call certain witnesses whose names were indorsed upon the information and who were eye witnesses to the homicide, thereby compelling the defendant to call them himself. Still another one upon which the appellant lays much stress was the use by the county attorney and his assistants, in their addresses to the jury, of certain language denunciatory of defendant and some of his witnesses, to which objection was made at the time but which the court failed to rebuke or guard against by proper admonition to the jury. We have given to all of these claims of error careful attention. None of them are well founded. In The State v. Baker (57 Kan. 541, 46 Pac. 947), a new trial was ordered on apcount of the allowance by the court of abusive and improper language by the county attorney calculated to create prejudice against the defendant, but the language of the addresses in this case and the circumstances which seemed to inspire them are quite different from those in the cited case.
The record which comes here shows the second conviction of the defendant for the killing of Kussel Lindsay. The circumstances of such killing, as detailed in the bill of exceptions before us and which we have epitomized, are a sufficient commentary upon all the claims of justification and lack of intention put forth by the defendant. Two juries have found the facts against him. The law upon that state of facts was correctly declared by the court below, and its judgment of conviction must be affirmed. | [
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Johnston, J.
This was an action by Eve Davis against the Standard Life and Accident Insurance Company to recover five thousand dollars upon an accident policy issued to Jonathan M. Davis, her husband, and payable to her in the event of his death.
The petition alleged that Jonathan M. Davis was accidently injured by the kick of a mule on January 21, 1893, and that afterward, about February 27, 1893, he accidently fell from a buggy; and that by reason of these injuries, and independent of other causes, his death resulted on March 15, 1893. It was also averred that proof of the injury and death, required under the terms of the policy, a copy of which was attached to the petition, had been duly and timely furnished, but that the defendant refused payment, although ■ more than three months had elapsed since the receipt of the proofs of deajh.
In the answer of the Insurance Company it was alleged that the application for insurance made by Jonathan M. Davis represented and warranted that he had no other accident insurance, whereas in fact he had a policy in the Travelers’ Insurance Company for the sum of five thousand dollars ; and that by rea son of the false statements and warranty the policy sued on was absolutely void. It was further averred that his death was not accidental, but was produced by causes not enumerated in the policy. Another defense was that notice was not given to the Company at the time and in the manner required by the policy. A still further defense was that the action had not been brought within the time limited by the policy; namely, within six months from the time when the right of action accrued. In reply to the answer Eve Davis alleged that the Insurance Company had full knowledge of the fact that the insured had prior insurance in another company, and that it waived that provision of the policy ; that, with this knowledge, the Company accepted the premium and issued the policy, and had demanded and received proofs under it; and that by its conduct it was estopped to deny its liability under the policy.
The Insurance Company moved for judgment on the pleadings, but the motion was overruled, after which the cause was tried to a jury, and, upon the testimony, a verdict was returned in favor of the plaintiff below for $5,625, upon which a judgment was rendered.
The first objection is based on the overruling of the motion for judgment on the pleadings. The application for insurance, which contained representations that Davis had no other insurance, was made a part of the contract attached to the answer of the Insurance Company. There was no denial of the fact that Davis held a policy in the Travelers’ Insurance Company when the contract in the present case was made, and hence the Insurance Company asked for judgment on the pleadings. "We think the motion was correctly refused. That provision of the contract is one which the Company can waive, and its conduct may be such that it will be estopped to set up a breach of the warranty or the untruth of the representations. The reply of the plaintiff below pleaded a waiver by the Company, and also an estoppel; and, as an issue of fact was thereby joined for trial, the motion for judgment on the pleadings was necessarily denied. Did the pleadings show that the action was barred by the contract limitations? The time within which an action like this may be brought may be fixed by the contract itself, and when so fixed that limitation will supersede the ordinary limitation prescribed by the statute. Tho policy contained the following condition :
“Affirmative proofs of death or loss of limb or sight or duration of disability must also be furnished to said company within two months from the time of death or loss of limb or sight or of the termination of disability ;. else all claims based thereon shall be forfeited. Legal proceedings for recovery hereunder shall not be brought until after three months from the date of filing proofs at this Company's home office, nor brought at all unless begun within six months from the time when the right of action shall accrue."
This action was not commenced until six months and fourteen days after the death of Davis had occurred. The contention is that the right of action accrued at the time of the death, and was therefore not brought within the time limited in the policy. When the action accrued must be determined from the provisions of the policy. As will be seen, two limitations are provided : One, that an action on the policy cannot be brought until three months after the time of filing proofs, and another that it must be brought, if at all, within six months after the right of action accrues. The intention of the parties to this contract is not hard to understand. ■ Evidently it was intended that a remedy upon the policy should be suspended for three months after the proofs were filed in the Company’s office, and that the period of limitations would not begin to run until the time when the right to enforce the remedy had arrived. The right of action certainly did not accrue when the death occurred, for the right to bring the action did not then exist. A liability, even, did not exist at the time of the death, nor until it was ascertained and determined in accordance with the provisions of the policy. A remedy is not available when the proofs are made, but under the contract there is three months’ time given to the Company to satisfactorily ascertain what its liability under the policy is. It was certainly not intended that the limitation against the insured should begin to run before the right to bring the action existed. The contracting parties can hardly have intended to suspend the remedy and provide for the running of the period of limitation at the same time. We therefore conclude that the action of the plaintiff below was not barred when brought, and that the court committed no error in overruling the motion for judgment on the pleadings.
Complaint is made of the ruling of the court upon objection to a hypothetical question, submitted to an expert witness who had examined the brain of Davis some time after his death .■ The hypothetical case put embodied several matters and facts, recited in detail and upon which there was testimony, an¿ en(^e¿ ^ith the inquiry as to what the witness would say was the cause of the condition in which the brain of Davis was found. His answer was that .the cause of Davis’ death commenced at the time of certain injuries, which, he said, were quite sufficient to produce death. The complaint is that the question and its answer invaded the province of the jury, and in fact disposed of .the principal issue submitted to the jury for decision. The only objection made was to the form of the question, in which we find no substantial defects. The answer, it is true, is not responsive to the question, for instead of giving the condition of the brain, the witness went further, and stated the cause of the death. No objection was made to the answer, and the attention of the court was not called to its objectionable character. ‘‘ Where the answer of the witness is not responsive to the question put to.him, an objection to the question is not available on error. There must be a motion to strike out the answer.” Mo. Pac. Rly. Co. v. Schumaker, 46 Kan. 769, 27 Pac. 726.
Error is assigned on the refusal of certain instructions that were requested in behalf of the Company; one of which was to the effect that the representations made in the application constituted a , -, ,, , .p ,i warranty, and that if there were misrepresentations in respect to other insurance the plaintiff below could not recover. As already stated, she had pleaded waiver and estoppel. There was proof to the effect that the agent of the Company who filled out the application for the policy was informed by Davis that he already held an accident policy in the Travelers’ Insurance Company, but for some reason that fact was omitted from the application. It is well settled that, where the agent of an insurance company who fills out an application for insurance is duly informed as to facts and fails to state them in the application, the actual knowledge of the agent will be held to be the knowledge of the company, and that having failed to fill out all the answers in the application, or to state them correctly as given, the company will be held to have waived them, and will be estopped to insist that the representations are untrue or that there has been a breach of the warranty. Insurance Co. v. Gray, 43 Kan. 497, 23 Pac. 637; Sullivan v. Phoenix Ins. Co., 34 id. 170, 8 Pac. 112; Insurance Co. v. Barnes, 41 id. 161, 21 Pac. 165; Insurance Co. v. Weeks, 45 id. 751, 26 Pac. 410; Insurance Co. v. Banks, 50 id. 449, 31 Pac. 1069; Insurance Co. v. Wilkinson, 13 Wall. 222; Insurance Co. v. Mahone, 21 Wall. 152.
In respect to the claim that proper notice was not given at the home office, it is sufficient to §ay that proofs of loss were forwarded to the Insurance Com-ParU in April, 1893, which were received and retained by the Company without objection. Instead of returning the proofs because not furnished in accordance with the terms of the policy, they retained them, and demanded additional proofs. The insured was therefore put to the expense and trouble of furnishing the additional proofs, and having, done so at the instance of the Company, the defense with respect to notice must be deemed to have been waived. Insurance Co. v. Wallace, 50 Kan. 453; McNally v. Insurance Co., 137 N. Y. 389; Trippe v. Provident Fund Society, 140 N. Y. 23, 35 N. E. 316; Insurance Co. v. Norton, 6 Otto, 234; Bacon on Benefit and Life Insurance Companies, § 435.
Complaint is made ■ of several of the instructions that- were given by the court, but the objections to them are not available as error. The only exception to the charge is in the following language : ’ “ The defendant duly excepted at the time to the J x giving of the above and foregoing instructions as not being the law in the case and contrary to the law; which exception was by the court overruled and said defendant duly excepted to the ruling of the court and excepts.” A general exception of this character to an entire charge will not avail, unless the whole charge is erroneous, or unless the charge in its general scope or meaning is erroneous. The charge in this case contains eighteen distinct instructions. To many of these there is no objection, and several of them are expressly given for the benefit of the Company. It cannot be said that the charge in its general scope or meaning is erroneous, and therefore the Company’s exception is not good. Sumner v. Blair, 9 Kan. 521; Ferguson v. Graves, 12 id. 39; Wheeler v. Joy, 15 id. 389. Notwithstanding the insufficiency of the exception, the court has gone over the instructions in detail, and from an examination of the same is satisfied that no substantial error was committed in charging the jury, and that if specific and legal exceptions had been taken no ground for reversal would have been found.
The judgment of the District Court will be affirmed. | [
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Allen, J.
This is an original action instituted in this court on the twenty-seventh of June, 1895, to obtain a forfeiture of the charter of the Topeka Water Company. On the sixteenth of June, 1897, an amended and supplemental petition was filed, which was answered by the defendant with a general denial. The case was tried on its merits at the January, 1898, session of the court. Numerous depositions and a large number of documents were offered in evidence, and subsequently very elaborate briefs were filed. The questions we deem it necessary to consider', however, are neither numerous nor difficult.
. It appears that in 1881 a corporation known as The Topeka Water Supply Company was organized. The City of Topeka, by an ordinance duly passed, granted it the right to construct the works and lay the pipes necessary for supplying the city and its citizens with water, for the period of twenty years. Under this ordinance a system of water works was constructed by that corporation. On the twenty-eighth of December, 1889, the defendant company was duly incorporated. On the twenty-ninth of January, 1890, an ordinance was passed by the city council authorizing a transfer by the Topeka Water Supply Company to the Topeka Water Company of all its rights and franchises under the ordinance first mentioned. This transfer was effected shortly thereafter, and' the Topeka Water Company acquired all the property of the first named company. On the first of February 1890, the defendant executed a mortgage on all its property, including its rights and franchises under the city ordinances, to the Atlantic Trust Company, to secure bonds 'for the sum of $1,500,000. At the time of the execution of this mortgage, there was a prior mortgage lien for bonds issued by the Water Supply Company amounting to $120,000. Default having been made in the payment of interest on these mortgages, a suit was brought to foreclose them, in which one Elias Summerfield was appointed receiver. The property was eventually sold, under.the decree of foreclosure, to one Charles F. Street, who subsequently conveyed it to its present owner, The Topeka Water Company — a New Jersey corporation. Some time prior to 1898, at a date not definitely shown, substantially all the stock of the defendant company was transferred, through Coffin & Stanton of New York City, to the American Debenture Company, a corporation having its headquarters in the Rookery Building in Chicago, and the active management of the affairs of the company was trans ferred from Topeka to Chicago. An office was kept at Topeka, in charge of an agent, who remitted his collections to the American Debenture Company. The records and books of the corporation were sent East, and do not appear to have ever been kept in the State after the American Debenture Company acquired the stock of the corporation. The office of the treasurer was not kept in this State later than 1893.
The proposition first advanced by the plaintiff, and discussed in the briefs at very great length, is that “the Topeka Water Company has so misused and abused its corporate rights, franchises and privileges, by attempting to mortgage them, that the State should declare a forfeiture not only of those granted by the State but those granted by the City of Topeka as well.” The argument is that the company had no right under the law to mortgage its franchises ; that its attempt to do so was an abuse of its corporate powers, for which a forfeiture should be declared, not only of its charter as a corporation, but also of the franchise granted it by the City of Topeka. Great diligence has been exhibited by counsel in the citation of authorities bear-, ing on this question. But it is objected by counsel for the defendant that the parties interested in the determination of the question whether the mortgage executed by the defendant to the Atlantic Trust Company was valid or invalid are not before the court. That mortgage has been foreclosed, and the mdrtgaged property has been transferred under it to the New Jersey corporation. Whether, as between the City and the purchaser, this foreclosure and sale passed a good title to all the franchises and privileges granted by the City of Topeka, is a question which it is not necessary to consider in order to dispose of this case. The defendant has been foreclosed of its rights, but so far as we are informed the question is an open one as between the City and the present owner of the property. Unless necessary to a determination of the case before us, there is manifest impropriety in discussing the rights of parties not before the court, and especially so where such great interests are involved.
In chapter 66 of the General Statutes of 1897, we find the following provisions :
“ Sec. 42. Every corporation created by or existing under the laws of this state shall have and keep a general office for the transaction of business and shall keep such office within this state, and shall have at least three of its directors citizens and residents of this state ; and in case such corporation is a railroad or a railway company it shall have such general office located on or near the main line of its road or route mentioned in its charter. At such general office shall be kept the records and books of the corporation, and also of the office of the superintendent, general manager or director, secretary, auditor, treasurer and paymaster, general freight agent and general ticket agent, under whatever name the duties usually pertaining to such offices maybe transacted, together with all books of account appertaining to the business of such offices.
“Sec. 43. Any corporation failing or refusing to obey any of the provisions of the first section of this act for the period of six months shall be deemed to have forfeited its charter, and such forfeiture may be decreed by the district court of any county in which such corporation may do business, or into which any line of such railroad or railway may extend, in an action to be instituted for that purpose in the name of the state of Kansas by the county attorney of the county in which such action is prosecuted.
“ Sec. 44. All corporations or joint-stock compañies of every description, whether organized and acting under a special charter or under the general law of the state, shall keep the office of their treasurer, or other- officer or person keeping the funds, earnings or income of the corporation, within this state, and all earnings, income, profits and moneys collected by any corporation or joint-stock company operating under the law of this state, until the same is disbursed or divided by the directors or other officers authorized to make division.”
The proof abundantly shows that the provisions of these sections have been violated by the defendant, and that such violation had existed for a period of more than six months before the action was commenced. No general office for the transaction of the business of the corporation was kept in this state later than 1893. The records of the proceedings of the stockholders and directors were sent East and never brought back. The office of the treasurer was not kept here, nor were the funds retained until distributed by the directors or other officers authorized to make division. After the payment of expenses, they were all sent to Chicago. The resident stockholders had parted with all their interest in the company and ceased to have any control over its affairs. After the foreclosure and sale under the mortgage the defendant corporation was left a mere empty shell, without property or purpose. The business for which it was organized is now transacted by its successor. It is not like a new corporation, just entering on its business career, which might be entitled to. some indulgence. The defendant as a corporation has run its race. Its career is ended. It is guilty of such omissions as the statute declares shall forfeit its charter. We perceive no reason why such a dead thing should be permitted to hold a semblance of legal existence. Its charter has been forfeited, and this court must so declare.
Judgment will be entered annulling the defendant’s charter, directing it to close up its affairs, and for the costs of this action. | [
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Doster, C. J.
This was an action brought against the receivers of the Atchison, Topeka & Santa Fe Nailroad Company by Catherine O’Connell, as widow of John O’Connell, to recover damages for the alleged negligent killing of her husband.
John O’Connell was an employee of the Neceivers. He was a bridge watchman, and his business was to look out for the safety of a couple of bridges, situated between the towns of Grand Summit and Grenola, on the Southern Kansas division of the railroad. These bridges were about two miles apart, and it was the duty of the deceased to visit and inspect them after the passing of trains. In doing so, he rode what i& called a tricycle car, propelled by himse.lf. For many years he was in the habit of visiting these bridges between six and seven o’clock in the morning. On November 5, 1894, shortly after six o’clock, while riding his tricycle car on his accustomed morning trip eastward, he was run into from behind' and killed b/ an extra or special train. The usual allegations and counter-allegations of negligence were made in the pleadings. A general verdict and special findings were returned in the plaintiff’s favor. Prom the judgment rendered thereon the defendant prosecutes error to this court.
The first claim of error relates to the admission of testimony. Upon the occurrence of the accident, the train was stopped and the body of the x J deceased was left in charge of a brakeman> -while the train and remainder of the trainmen ran on to Grenola, about three miles distant, from which, between two and three hours later, they returned with the coroner and a jury. A witness named Long was one* of this party. He testified, over the defendant’s objections that, upon arriving at the scene of the accident, the engineer pointed out to him the place where he first saw the deceased on the track ahead of him, and also the place where he ran his engine into him ; and that, upon measurement between these two- places, he, the witness, found the distance to be three hundred and ninety-five feet. According to other testimony, this was ample distance in which to stop the train, and of course it afforded ample time to whistle and sound the bell as alarms. This testimony of the witness Long was not given in impeachment of anything to which the engineer had testified, but was offered and received upon the making of the case in chief by the plaintiff, and it was, therefore, flagrantly erroneous. The statements of the engineer were no part of the res gestee. They were mot made contemporaneously with, nor in immediate .-sequence upon, the accident. They were narrative of a past transaction, having been made two or three hours after the event occurred. They were hearsay of the baldest kind, and were not made by one who stood in such a representative relation to the receivers as' make Ms admissions binding upon them. Kansas Pacific Rly. Co. v. Pointer, 9 Kan. 620; Dodge v. Childs, 38 Kan. 526, 16 Pac. 618.
Notwithstanding the admission of this testimony, a majority of the court are of the opinion, in view of the findings of the jury, that it was not prejudicially erroneous. These findings were that the engineer did not observe the deceased until about sixty feet distant from him. The jury either did not believe the witness Long as to what he said the engineer told him, or, if they did believe him, believed the fact to be othwise than as stated to him. Consequently, the negligence found against the engineer did not consist in failing to stop the train or sound the alarm after the danger to the deceased was observed, but it consisted in failing to discover the danger as soon as it might have been discovered.
The action was brought under section 419 of the Civil Code, chapter 95, General Statutes of 1897, by the plaintiff as the widow of John O’Connell. In her petition she alleged that the deceased x ° was a resident of this State, but she did ü0£ the first instance allege the non-appointment of an administrator of his estate. Before the trial the defendants moved for judgment upon the pleadings, and also at the commencement of the trial they objected to the introduction of evidence under the petition. These motions were overruled ; but the question involved under them again arose upon demurrer to the plaintiff’s evidence after she had rested her case. This demurrer was overruled ; but, before the defendants proceeded, the plaintiff by leave of court reopened her case, and, over the defendants’’ objections, testified that no administrator of her husband’s estate had been appointed. The same question again arose upon a request by the defendant to in struct the jury that plaintiff must allege and prove, if John O’Connell was a resident of the State, that no administrator of his estate had been appointed.
The claim made by the defendants, in support of these various motions and objections and the request to instruct, was that a right of action for damages for death is statutory, and cannot be maintained except under the statutory conditions; that in such case a widow’s right to sue is conditioned upon the non-appointment of an administrator of the decedent’s es tate ; and that, therefore, the petition, which in this instance lacked the averment of non-appointment, failed to bring the case within the statutory terms. This claim was well taken and should have been sustained. It was so held in City of Eureka v. Merrijield (53 Kan. 794, 37 Pac. Í13). The decision of that case is well sustained by other like authorities, its reasoning- is entirely satisfactory to us, and it applies to all •the various instances in which the rule was invoked in this case.
■ After successfully resisting all the defendant’s attempts to secure recognition of the rule, the plaintiff finally moved for leave to amend her pe- ^ tition to conform to the facts proved, by aiieging the non-appointment of an administrator of the decedent’s estate. This motion was allowed and the amendment made. However, it was not made, nor the motion therefor filed, until five days after the close of the trial, the return of the verdict, and the discharge of the jury, and two days after the motion for new trial was filed. It was made, however, before the rendition and entry of judgment on the verdict and findings.
. While the statute (Civil Code, § 139) allows amendments to be made either before or after judgment to conform to the proof of facts, and while this stat ute should be liberally construed and a liberal exercise of the right of amendment allowed, we are clear that the amendment in question should not have been permitted at the time and under the circumstances disclosed in this case. It will be observed that, at every proper and available opportunity, the attention of the court was called to the vital defect in the plaintiff’s petition and a challenge made to her right to proceed because of such defect. In particular, the court had been requested to instruct the jury to find for the defendants, because of the lack of the necessary allegation in plaintiff’s petition to entitle her to recover. Exceptions to the court’s rulings were made as each successive phase of the question arose and was disposed of. These rulings and exceptions showed substantial and reversible error, within the previous decisions of this court.
At no time after verdict and before the amendment was made could any question exist as to the right of the defendants to an order setting aside the verdict and findings and awarding a new trial. We think it was not within the power of the court, at the late time this amendment was proposed, to allow it to be made, and through its retroactive effect to cure the substantial errors which had been committed through lack of its earlier making. To such effect are the authorities. “A motion, after the close of the evidence to conform the pleadings to the proof can never be granted where the admission of the evidence was promptly objected to when it was offered, upon the ground that it did not tend to support the allegations in the pleadings.” 1 Encyc. Pleading and Practice, p. 585. We have examined many of the authorities cited under the above quotation and find that they fully support the text.
We cannot conjecture whether an administrator of the estate of John O’Connell had been in fact appointed, and we have no way of ascertaining the fact except by the record before us; and that was silent upon the question until .the amendment was made, long after all opportunity for the defense to be heard upon it had passed. Had an issue been made upon this question in proper time and form, it might have been that the defendants could have proved the making of an appointment. We cannot assume a lack of good faith on their part in insisting that such issue be framed and that they be heard upon it. We cannot assume that their contention is a technical and vexatious insistence upon a mere matter of form readily ascertainable against them. As shown in City of Eureka v. Merrifield, supra, it is matter of substance, and not of form, and what the fact may be is impossible for us to know.
Many other claims of error are made. One of these relates to the admission of evidence of the engineer’s failure to sound the alarm at a highway crossing, something over two miles before reaching the point 'where the accident occurred. Others relate to the giving of certain instructions, and the refusal of requests for certian instructions, and lastly, the failure of the evidence to prove a case of negligence against the receivers. This last claim is untenable. Not being under the necessity of determining the others, we have not closely examined them. Some of them, upon casual consideration, present the appearance of merit, but, being subject to re-examination by the trial court, no definite opinion concerning them is expressed by us.
The judgment of the court below is reversed and a new trial ordered. | [
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Allen, J.
The defendant in error obtained judgment- against the Commercial Bank, for $2685, on a guaranty^ in the following form, indorsed on a negotiable promissory note executed by Daniel Dart:
“For value received, the Commercial Bank hereby guarantees prompt payment of the interest on the within obligation and the payment of the principal at maturity. Witness our hands this 12th day of May, - 1886. Geo. T. Gunersey, Cashier. L. U. Humphrey, President.”
The note was made payable to the order of the Topeka Investment & Loan Company, and was by it indorsed before maturity to the Cheshire Provident Institution. The petition alleges that, at the time the note and. mortgage securing the same were executed, the Commercial Bank, in writing and for a valuable consideration, executed the guaranty above copied. The answer of the Commercial Bank alleges that it as a corporation never had any interest in the note, and never received any value for the execution of the guaranty, that the officers of the bank had no authority to execute the guaranty, and that these facts were known to the payee of the note at the time of its delivery. To this answer the plaintiff replied with a general denial. The case was tried to the court, and a general finding was made in favor of the plaintiff, on which judgment was entered for the amount of the note and interest. Counsel for plaintiff in error claim, First, that the guaranty on which judgment was rendered was not a negotiable guaranty, because payable generally and not to order or bearer; Second, that the indorsement of the note did not assign the guaranty; Third, that, if it be conceded that-the indorsement of the note operated as an assignment of it, all defenses against the first holder are available against the assignee ; Fourth, that the guaranty is void because the bank had no power to lend its credit in that manner.
The first point presents the most important question in the case, and one on which the authorities are conflicting. It will be noticed that the guaranty under consideration in this case contains no words of negotiability, but is indorsed on a negotiable instrument. In Daniel on Negotiable Instruments, the conflicting views of the courts and text writers are summarized; and, in section 1777, the author says :
“ On the other hand, there are cases which maintain that, although the guaranty on the paper, written at the time of delivery, specifies no person to whom the guarantor undertakes to be liable, and has no negotiable words, it runs with the instrument to which it refers, partakes of its quality of negotiability, and any person having the legal interest in the instrument takes in like manner the guaranty as an incident, and may sue thereon. And it has been said in such a case, ‘ this view is consistent with the nature of the transaction, the evident intention of the parties, and the objects and uses of commercial paper.’ This seems to us the better doctrine. By writing the guaranty on the paper, the guarantor evidences his intention to guarantee the contract of the maker. That contract being negotiable, is made with any and every person who may be the holder, and the guarantor is thus brought in privity with any and every "person who becomes the holder.”
This view of the law seems to us supported by reason and the weight of authority. A guaranty indorsed on a negotiable instrument is to be construed with the language of the instrument. The one under consideration in terms names no guarantee. The evident intent was to guarantee the payment to the legal holder of the note. We are unable to perceive any good groimd for the position, taken by some of the authorities, that the guaranty inures to the benefit of the first holder of the paper, only. The transfer of the note by indorsement must certainly operate as at least an assignment of the guaranty. We think it does more, and that the guaranty passes by the indorsement as fully as the note itself. The Commercial Bank by its guaranty became a party to a negotiable instrument. It employed no words limiting its liability, and it must make good' the terms of its promise to the legal holder of the paper. This view of the law is sustained by the following authorities : Story on Bills of Exchange, § 458; Webster v. Cobb, 17 Ill. 459; Phelps v. Sargent, 71 N. W. 927; McLaren v. Watson’s Executors, 26 Wend. 425; Partridge v. Davis, 20 Vt. 499; Jones v. Berryhill, 25 Ia. 289; Brandt on Suretyship and Guaranty, § 47.
The view opposed to the negotiability of a guar anty, unless made negotiable by express terms, is taken by Mr. Randolph in his work on Commercial Paper, section 861, and the authorities sustaining that view are cited in the notes. Much stress and reliance are placed on the case of Briggs v. Latham (36 Kan. 205, 13 Pac. 129). In that case a recovery was sought on a guaranty written on a mortgage securing the note. It was a guaranty of the payment of the mortgage. The mortgage itself was not a negotiable instrument, and there were no words of negotiability in the guaranty. We are entirely satisfied with the decision of that case. The dictum contained in the opinion, seemingly opposed to the conclusion reached in this case, being entirely outside of the question before the court, is not of binding authority. That the guaranty is assignable and.passes with the assignment of the debt guaranteed does not admit of doubt. Reed v. Garvin, 12 S. & R. 100; Clafflin v. Ostrom, 54 N. Y. 581; Harbord v. Cooper, 48 Minn. 466, 45 N. W. 860; Stillman v. Northrup, 109 N. Y. 473, 17 N. E. 379.
The record before us does not contain any of the evidence offered at the trial. The general finding resolves all doubts as to the facts against the plaintiff in. error. We must, therefore, presume that the guaranty was executed for a valuable consideration, by the duly authorized officers of the Bank, and in due course of business. The claim that a banking institution dealing in commercial paper is without authority to bind itself by a guaranty thereof, has nothing to commend it to especial favor. It is true that in this case the paper itself does not indicate that the Commercial Bank ever owned it. Nevertheless it may have received the proceeds and the guaranty may have been made strictly in the interest of the Bank. Attempts of corporations, organized solely for profit, to avoid their obligations on the ground that they are ultra vires have never been received with marked favor by this court. National Bank v. Quinton, 57 Kan. 750, 48 Pac. 20; Town Co. v. Lincoln, 56 Kan. 145, 42 Pac. 706; Railroad Co. v. Johnson, 58 Kan. 175, 48 Pac. 847.
The general finding in favor of the plaintiff below is a complete answer to all questions urged on our consideration, except that as to the negotiability of the guaranty and the effect of the indorsement of the paper as an assignment of it.
The judgment is affirmed. | [
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Dostjsr, O. J.
This was a proceeding instituted under section 50, chapter 66, General Statutes 1897, by the defendants in error as judgment creditors of the People’s Bank of Larned, Kan., against the plaintiff in error as a stockholder of the Bank, to enforce the collection of the judgment by execution.
The questions we are asked to consider are presented in the form of a case-made. A transcript of the proceedings resulting in the judgment against the Bank is incorporated in the case-made, not, however, in the form of evidence introduced or offered upon the trial of the motion for leave to issue execution, but as an integral part of a record made up of the proceedings against the bank and also those against the stockholder. We are, therefore, unable to review many of the questions discussed by counsel for plaintiff in error. The case-made contains the record of two distinct and independent proceedings ; one against ■the People’s Bank, the other against the plaintiff in ■error as one of its stockholders.
The fact that the cause of action against the plain.tiff in error grows out of his liability as a stockholder of the Bank to pay the judgment rendered against it, does not make the 'action against the Bank and the one against himself an entire and indivisible proceeding. In the case of Howell v. Manglesdorf, 33 Kan. 194, 5 Pac. 759, it was decided that the notice re quired to be given to the stockholder of an insolvent corporation, in a proceeding to enforce his liability for its judgment debts, was in the nature of original process, and consequently should, be served in the same manner and ■ under the same conditions as a summons issued at the beginning of an action. As a conclusion resulting from such view it was held, therefore, that service of notice of the motion to charge the stockholder, made outside of the state, did not confer jurisdiction over him so as to authorize the issuance of an execution against his property within the tstate. In the opinion in that case it was remarked :
"While the proceeding is summary in its character, and its maintenance contingent upon the insolvency of the corporation, or upon the rendition of a judgment against the corporation and the return of an execution thereon of nulla bona, yet we cannot regard it as an interlocutory or auxiliary proceeding in the action against the corporation. In the action against the corporation no notice of its pendency is given to the stockholder ; he is not directly interested in the action, as his liability is only secondary to the corporation, and exists alone by reason of this statutory provision, and of that provision of the constitution- in pursuance of which the statute is enacted. (Const. Art. 12, sec. 2.) His liability to the creditors-of the corporation is in the nature of a guaranty; the-action or proceeding to enforce the same does not accrue until the execution upon the judgment against the principal is returned unsatisfied. We think that the proceeding against the stockholder, whatever remedy may be employed, is an independent one.”
From the conclusion that the proceeding to charge the stockholder with liability is in the nature of an action independent of the one against the corporation in which the judgment was rendered, it follows that such proceeding has a rec- ^ Qf ^ Qwn> independent 0f the One out of which it grew and upon which it is based ; and, on a review of its record, that of the prior proceeding can be looked at by this court only when offered to the court below in the form of evidence. It was not, as a whole, introduced or offered as evidence upon the trial of the proceeding we are asked to review. Such portions of it as were necessary to lay the foundation for the filing of the motion, and the, service of the notice to charge the stockholder with liability, were introduced in evidence by the defendants in error. These portions of the record disclose some peculiar irregularities of procedure, but they were not of such nature as to show that the court acted without jurisdiction over the subject-matter or the parties. For instance, it is claimed that the petition of the defendants in error against the People’s Bank and upon which default judgment was rendered, showed that the cause of action was barred by the Statute of Limitations, and further, that it did not state facts sufficient to constitute a cause of action. The determination of such matters as these was within the jurisdiction of the court. A wrong conclusion by the court as to them would render its judgment erroneous, but not void. If merely erroneous it cannot be collaterally attacked.
Counsel for plaintiff in error discuss some other questions growing out of the claimed dissolution of the People’s Bank, and also discuss the truth of the sheriff’s return of service upon the Bank. As to the first of these matters the discussion is predicated wholly upon the record of the proceeding against the Bank, which, as already explained, we are unable to review. The same is in great part true as to the sheriff’s return. So far as the falsity of the return may be shown by the record of the proceeding in question, we are likewise unable to take it into account. However, it will be presently examined in the light of some of the oral testimony taken upon the trial of the motion to charge the stockholder.
Objection is made to the form of the motion for leave to issue execution, and also to the form of the notice of such motion. These objections were not made to the court below and cannot now be considered by us.
The judgment against the People’s Bank was rendered upon service of summons made June 20, 1893, upon one L. A. Choat, as secretary of c J Bank. The plaintiff in error claim-Q(j t}iat Was not secretary at that time, and upon the trial of the motion for leave to issue execution he sought to prove the falsity of the sheriff’s return of service in that respect. The following questions were asked, answers given and rulings of court made :
Ques. “Mr. Choat, do you know who was the secretary of the People’s Bank of Larned, Kansas, or whether it had a secretary in June, 1893?” Ans. “No, sir, I do n’t.”
Said Albert H. Boyd moved to strike out the answer of the witness, which motion was sustained by the court, to which ruling the said John Schnack duly excepted.
Q. “I will ask you if you know whether it had a secretary at that time?”
Albert H. Boyd objected to this question as incompetent, irrelevant and immaterial and not the best evidence, which objection was sustained by the court, to which ruling the said John Schnack duly excepted.
Q. “I will ask you if you are the same L. A. Choat who is plaintiff in the case of L. A. Choat v. Albert H. Boyd et al.?” A. “Yes, sir.”
Q,. “I will ask you whether or not you were secretary in June, 1893, of that bank corporation?” A. “Well, I don’t consider I was.”
Said Albert H. Boyd moved to strike out the answer of the witness as not responsive to the question, which motion was sustained by the court, to which ruling the said John Schnack duly excepted.
In sustaining the objections to the above testimony we think the court below erred. The witness was the alleged secretary upon whom the service of summons had been made. A statement by him that he did not know who was secretary of the Bank in June, 1893, or whether it had a secretary at that time, was in negation of the claim that he was such secretary at such time. So likewise, his statement that he did not consider that he was secretary at the time service was made upon him as such officer. Had counsel who produced this witness been allowed to proceed with his examination, the fact as to whether he was secretary at the time in question, and if not who was, could, perhaps, have been satisfactorily developed. The testimony given by him and withdrawn from the jury tended quite strongly to show that he was not the secretary and that, therefore, the sheriff’s return was false. It should not have been withdrawn, but should have been allowed to remain for the consideration of the jury. The secretaryship of the People’s Bank was not a matter within the knowledge of the sheriff, and his return of service upon a particular person as its secretary, may be overthrown in a collateral proceeding such as this. Chambers v. Bridge Manufactory, 16 Kan. 270.
The judgment of the court below is reversed with directions to award the plaintiff in error a new trial of the cause. | [
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Doster, O. J. :
Mary Brophy, a widow lady, was a member of the Roman Catholic Church and a believer in its faith and doctrines. She was possessed of an estate consisting of personal property alone. She died, after having executed a will in which specific legacies in money were given to her children and grandchildren. A residuary sum was bequeathed in the following language: “I give and bequeath to Rev. James Collins, for mass for his grandfather’s and grandmother’s soul.” The legatee named was a priest of the Roman Catholic Church, and was the grandson of the testatrix and her deceased husband. The validity of the legacy made to him is denied by the heirs of Mary Brophy. The District Court sustained the bequest, and error is now prosecuted from its decision.
The claims of error are, that the will undertakes to create a trust, the beneficiaries of which are disembodied spirits, in whose favor no trust can exist; that the trust, if otherwise valid, is void for uncertainty in the cestuis qui trustent, and that the gift is void because repugnant to the ancient common law against bequests for “ superstitious uses.” Of these in their order.
The will does not undertake to create a trust. The gift is absolute to the person named. The language in which it is made is advisory, persuasive, expressive of desire, “precatory,” as called in the law of wills, but the passing of the gift is not conditioned upon the performance of the act enjoined. Upon ¿hg conscience of the donee alone is laid the duty of performing the sacred service named. The testatrix might have made the gift in the usual terms. That she coupled with it an injunction to the performance of a solemn religious ceremonial cannot avoid it. The case of Holland v. Alcock, 108 N. Y. 312, is not in point against this view. The bequest in that case was made to the trustees eo nomine. It was not made direct as in this case. There can be, of course, no trustee without a beneficiary in being, and inasmuch as in the case named there was no beneficiary there could be no trustee, and consequently no trust. Moreover, the case recognized the distinction we draw. The court in its opinion, on page 322, says :
“ If the bequest had been a sum of money to an incorporated Roman Catholic church or churches, duly designated by the testator, and authorized by law to receive such bequests for the purpose of solemnization of masses, a different question would arise. But such is not the case.”
Since the decision of that case, the subordinate courts of New York have upheld bequests of the character of the one in question. In Re Howard’s Estate, 25 N. Y. Suppl. 1111; Vanderveer v. McKane, 25 Abb. New Cases, 105. The fact that the legacy was a gift direct, and was not bequeathed in trust, obviates the necessity of noticing the objection, made by counsel for plaintiff in error, that it is void for uncertainty as to the beneficiaries.
Neither is the gift void because repugnant to the law against bequests for “superstitious uses.” To properly interpret the part of the will in question, and to determine whether effect can be given to it, we must bear in mind the Catholic Church, doctrine of Purgatory. t Purgatory is defined by an authorative expositor of the Church’s creed to be “a state of suffering after this life, in which those souls are for a time detained who depart this life after their deadly sins have been remitted as to the stain and guilt, and as to the everlasting pain that was due to them; but who have oil account of those sins still some debt of temporal punishment to pay ; as also those souls which leave this world guilty only of venial sins. InPurga^ tory these souls are purified and rendered fit to enter into Heaven, where nothing defiled enters.” Catholic Belief, Lambert’s Amer. Ed., 196. Devotees of this church “ also believe that the souls in Purgatory . are relieved by'the sacrifice of the Mass, by prayer, and pious works, and almsdeeds.” Id. 202. Scriptural authority, as it is recognized by Catholics, though by others regarded as apocryphal, exists for the practice of offering prayers for the dead, and for contributions to the church to enable it to perform its offices in their behalf.
“And when he had made a gathering throughout the company to the sum of two thousand drachms of silver, he ( Judas Maccabeus ) sent it to Jerusalem to offer a sin offering, doing therein very well and honestly, in that he was mindful of the resurrection ; for if he had not hoped that they that were slain should have risen again, it would have been superfluous and vain to pray for the dead. And also in that he perceived that there was great favor laid' up for those that died godly. (It was an holy and great thought.) Whereupon he made a reconciliation for the .dead, that they might be delivered from sin.” 2 Maccabees, ch. 12, verses 48, 44, 45.
In the light of these beliefs, the act of Mary Brophy in making the bequest is reasonable and consistent, and should be upheld unless it be prohibited by force of some positive rule of law. In the reigns of Henry VIII and Edward VI statutes were enacted to prevent the devoting, of property to what was termed “ superstitious •uses.” This was anterior to the reign of James I, during which the common law, consisting of the statutes and legal customs and usages then in force was imported into the colonies ; and, therefore, unless these statutes have been abrogated or modified by constitutional or statutory law, judicial decisions, or the condition and wants of the people, they are of binding force in this State. Gen. Stat. 1897, ch. 1, § 4. If by proper construction the statutes of Henry VIII and of Edward VI prohibit the making, of bequests for the purposes named in the will under consideration, assuming them to be parts of our law, the gift in question must fail. It is said, however, that the English courts did not hold the making of such gifts to be repugnant to the terms of these statutes, but declared them void by analogy to the prohibitions of the statutes and by the general policy of the common law. Jarman on Wills (6th ed.), vol. 1, 197-8. Be that as it may, and for the purpose of the question before us it can make no difference whether the prohibition was originally statutory or otherwise, we have no hesitation in declaring the English common law interdiction of bequests of the kind named to be without force in this state. It is opposed to the spirit of religious toleration which has always prevailed in this country, and which has found expression in the Federal Constitution and statutes and in the Constitution and statutes of every state of the Union. That religious intolerance which infused itself through parliamentary enactments and judicial sentences, and which procured the law to anathematize differing creeds as “superstition” or “heresy” according as Catholic or Protestant gained governmental ascendancy, was, more than anything else, what our ancestors fled from. It would be strange indeed had they carried to this country and established here the very laws of religious persecution from which they sought to escape. They brought here such of the common law as was adapted to the condition and wants of the people and as was consistent with the spirit and genius of free political and religious institutions. Sparks’ Franklin, vol. 4, 271. What was not thus brought has since been made ; and every addition to the ancient fabric which bears any relation to the subject of religious right has been a cumulative guaranty of religious freedom. It is not, however, meant that religious toleration, as it now exists, was from the beginning the rule of practice in the colonies. What is meant is, that the disabilities of the English law upon the rights of conscience and freedom of worship, though imposed in many instances, did not become established as a part of our legal polity. The fierce struggle between ancient bigotry and growing liberality, though renewed and continued here, was not a struggle between an established order and a x-evolutionary and protesting force. It was a struggle to prevent, and not to uproot, a legally authorized ecclesiastical system. In the sense, therefore, that the efforts of many of the colonists to prescribe articles of faith and forms of worship, though partially and texnporarily successful in parts of the countx*y, finally and wholly failed, it may be said that the penalties of the English statutes and courts upon non-conformity of religious belief and practice never became incorporated into the common law of this couxxtry. The express provisioxis of oixr constitxxtioxxal guaranties are to the contrary.
“Congress shall xnake xxo law respecting an establishment of religion or prohibiting the fx*ee exercise thereof.” Amendmexit to the Constitution of the United States, Art. 1.
“The right to worship God according to the dictates of consciexxce shall never be. infringed ; nor shall any person be compelled to attend or support any form of worship ; nor shall any control of, or interference with the rights of conscience be permitted ; nor any preference be given by law to any religious establishment, or xnode of worship. No religious test or property qualification shall be required for any office of public trust, nor for any vote at any election, nor shall any person be incompetent to testify on account of religious belief.” Constitution of Kansas, Bill of Bights, § 7.
Many other provisions illustrative of the degree of religious toleration allowed to the people - of this country might be quoted. The bequest of Mary Brophy is valid by the letter of many of them, and by the spirit of all. We may question the soundness of her belief, and may deride the claim of efficacy of the service she desired to have performed, but the law has no care for contrariety of faith a-s to spiritual things, and will, therefore, sanction the bequest she has made. The law interferes with no mere religious opinions, nor with religious practices, except such as tend to subvert the foundation of public morals and order. Reynolds v. United States, 98 U. S. 145.
The judgment of the court below is affirmed.
Johnston, J., concurring with the result. | [
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Johnston, J.
This was an action brought by George E. Fernald against the Highland Hall Company to recover upon promissory notes executed by the Company on May 2, 1892 — one for $5000, and another upon which there was a balance due of $117.53 — and also to foreclose a mortgage on real estate, given by the Company to secure the payment of the notes. Other parties, who claimed an interest in the mortgaged property and were connected with the transaction, were made parties. The principal defense, of the Highland Hall Company was that no consideration passed to the Highland. Hall Company for the notes and mortgage.
Austin S. Ranney also brought an action against the defendants, claiming the legal title to the mortgaged property by virtue of a tax deed; and, after issues were joined, this case was consolidated with the Fernald case, and both were tried together. On the final hearing, the Ranney tax deed was adjudged to be void; and, by agreement of parties, he was given a judgment for the amount of the taxes, which was declared to be a first lien upon the property.
As to the Fernald case, the court found that the notes and mortgage in controversy, -which were executed by the Highland Hall Company, were without consideration, and were therefore not valid obligations against it or a lien upon its property. The contention here is that the findings of the court with reference to the consideration of the notes and mortgage are not supported by the testimony, but that upon the evidence produced the court should have found in favor of the plaintiff and have rendered judgment in his favor against the Highland Hall Company. There is but little dispute between the parties on the material facts of the case, and the only substantial controversy is as to whether there was any benefit or valuable consideration given to and received by the Highland Hall Company for the notes and mortgage in suit.
It appears that the Highland Hall Company was organized in 1882, with a capital stock of $10,000. It acquired some real estate in Arkansas City, on which was erected a tliree-story brick and stone business building. This property was. mortgaged for $10,000, which was the full amount of the capital stock of the Company. In March, 1887, the Company sold its entire property to Frank J. Hess, who assumed the payment of the mortgage debt. A warranty deed was executed to him for the property, but subsequently he concluded to acquire the property by another method, namely, the surrender to him of the entire stock of the corporation. After this was done, the deed formerly executed by the Company was canceled. Afterward, Hess put into the corporation a tract of real estate owned-by him, valued at $15,000, and then increased the capital stock of the corporation to $50,000, of which he was the entire owner, except that he placed one share each in the hands of four of his friends, who joined him in voting for the resolution increasing the stock and in organizing the Company. In order to pay off the $10,000 mortgage upon the property, he borrowed that amount from the Union Guaranty Savings Bank of Concord, New Hampshire, and executed his two notes, on May 15, 1888, for $5,000 each, which were-indorsed by A. J. Johnson, his. father-in-law, as surety. To secure the payment of these notes he delivered to the Bank as collateral security twenty thousand dollars of the stock of the Highland Hall Company. Desiring to change the form of the loan and release Johnson as surety on the notes to the Union Guaranty Savings Bank,_ negotiations were begun between him and W-. F. Thayer, an officer of that Bank, with the result that, in January, 1891, Hess took up one of the five thousand dollar notes, and delivered to Thayer in place of it another note for five thousand dollars, which was executed by one Daniel W. Roberts to Hess and was secured by a mortgage on real estate. For the purpose-of taking up the other five thousand dollar note, the Highland Hall Company, on February 23, 1891, executed a promissory note for five thousand dollars and a mortgage on the property of the Company, and the note and mortgage so executed were forwarded to Thayer. The execution of the note and mortgage was expressly authorized by a resolution of the directors of the Highland Hall Company, passed on December 22, 1890.
For some reason,"Thayer was unwilling to accept. this note and mortgage in lieu of the one held by him, and did not surrender the note or the capital stock of the Company which was held by the Bank as collateral security. The note and mortgage so executed, however, were retained by him until a final settlement was made with the Company, when the notes and mortgage in controversy were executed. On May 2, 1892, in pursuance of a resolution passed by the directors of the Company, the notes and mortgage in controversy were executed, and on the delivery of the same Thayer surrendered the two notes executed May 15, 1888, which were indoi’sed by Johnson, and also the $20,000 of the capital stock of the Highland Hall Company. He also surrendered the $5,000 note, and the mortgage given to secure the same, dated February 23, 1891.
We think the surrender of the obligations mentioned and the release of the rights under them constituted a sufficient consideration for the notes in controversy. In view of the fact that the notes executed by Hess in 1888, and for the payment of which the stock of the Company was pledged, were made and delivered to pay an unquestioned debt of the Company, and that the notes and mortgage in controversy were executed to take up and discharge a portion of the same indebtedness, it is difficult to find anything substantial in the claim of want of consideration. Although Hess signed the notes executed in 1888, it is difficult to distinguish between him and the corporation. At that time, and long afterward, Hess owned all the capital stock and property of the corporation ; and it will be observed that in giving security for the payment of the notes he used capital stock representing two-fifths of the assets and property of the corporation.
The only object or excuse for the existence of the corporation was the ownership and control of two pieces of real estate ; but, for some reason, lie chose to carry on his private individual business under the cloak of corporate authority. Some courts have held that the ownership by one person of all the stock of a private corporation suspends corporate action, if it does not virtually dissolve the corporation itself. However the purchase and ownership of the entire capital stock of the Highland Hall Company by Hess may have affected or impaired corporate rights or existence, it should not be allowed to defeat a debt contracted in the manner and for the purpose the one which the. Company now seeks to repudiate was contracted. No shuffling or manipulation of the corporate privileges or property by the single stockholder and manager of the corporation should be permitted to defeat the claims of bona fide holders of just debts created for and in behalf of the corporation. Under the circumstances, the debt is only an extension of a portion of the original debt which was assumed by Hess when he purchased all the stock and property of the corporation. No mere change in the form of the indebtedness should relieve the corporation from its real liability.
Apart from this view, there was without question a valuable consideration for the notes and mortgage in suit. The note and mortgage executed by the Company in February, 1891, were in the hands of the payee until the debt in controversy was contracted. Although Thayer did not accept them as full payment, or take them as a substitute for the notes and collateral delivered by Hess in 1888, they were apparently held by Thayer as additional security until the settlement was made in May, 1892 ; and this appears to have been without objection or protest by the Company, Hess, or any other officer or stockholder of the Company. Express authority was given for the exe cution of the note and mortgage of 1891, and, when that was done, substantially all the capital stock of the Company was in the hands of Hess and his family. During the time the note and mortgage were so held there was apparently complete acquiescence by the Company and by every stockholder in this action of its officer. The surrender of a contract or obligation, which is a real disadvantage to a party, is ordinarily sufficient consideration for a new promise. Under the circumstances, the relinquishment of the note and mortgage referred to, and the release of the rights which accrued under it, were a valuable consideration for the note in suit.. In addition to this, there was a surrender of the capital stock of the Company held by the payee of the note surrendered. As has been seen, it constituted two-fifths of the corporate stock and was acquired and pledged by Hess in the manner already stated. There was a by-law of the Company authorizing it to deal in its ewn stock, by virtue of which some advantage over the Company is claimed; but a general or unlimited power to traffic in its own stock is hardly permissible to a Kansas corporation. While this is true, there are exceptions which permit corporations to purchase or deal in their own stocks in order to protect themselves from loss on debts, o'r to save themselves from injury or prejudice which might result from placing their stock in the hands of unfriendly persons or of those who might seek to defeat the purposes for which the corporation was formed. In these cases it must appear to be done in good faith and in such a way as not to injuriously affect the rights of creditors. Other reasons for the'purchase of its own shares by a corporation might be suggested; and it would appear that the Highland Hall Company might well desire that so large a share as two-fifths of its entire stock should not stand in the hands of a single creditor. Apart from the benefit the surrender of the stock may have been to the corporation, it was a disadvantage to the creditor and afforded a valuable consideration for the notes and mortgage in question.
It is to be observed that no stockholder or creditor of the corporation challenges the validity of the debt or the power of the corporation to execute the notes and mortgage in controversy. The Company sets up a defense to obligations authorized by a resolution of the Company duly passed after having, obtained the surrender of other obligations and of the capital stock hereinbefore mentioned. It seeks to repudiate its indebtedness without offering to restore to the creditor the securities which he formerly held and which he surrendered on the faith of the notes and mortgages in suit. The testimony and the findings of the court clearly show that the plaintiff was entitled to a recovery on his notes and to a decree foreclosing his mortgage.
The judgment of the District Court will, therefore, be reversed, and the cause remanded with directions to enter judgment in favor of the plaintiff for the amount due upon his notes, and also to enter a decree foreclosing the mortgage, in accordance with the prayer of the plaintiff's petition. | [
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Allen, J.
John S. Williams was killed by an eastbound freight train on the Chicago, Rock Island and Pacific Railway in Doniphan County, on the eleventh of June, 1890, at a crossing near the village of Denton. This action is prosecuted by his widow, as administratrix of his estate, to recover damages from the Railway Company for negligently causing his death. This is the second time the case has been brought to this Court. The decision in the first case is reported in 56 Kan. 333. Somewhat different questions are now presented. The deceased approached the railroad track from the north. On the west side of the highway, along which he was traveling, there was a high hedge extending as the jury found within from fifteen to twenty-four feet of the railroad track. Beyond this hedge was an apple orchard on the west side of which there was another hedge. The hedge was so high and dense as to effectually cut off all view of the approaching train until the deceased passed beyond the south end of it when his horses’ heads were within a very short distance of the railroad track. Neither the testimony nor the findings of the jury definitely fix the precise point at which the deceased could have seen the approaching train. The right of way of the Railway Company was one. hundred and fifty feet wide at the crossing, and the hedge was permitted by the Railway Company to remain at such height as to obscure all view of the track to the west of the crossing. Apple .trees also were growing on the right of way.
The catastrophe happened on the morning of a calm and pleasant day. The deceased was driving his team attached to a lumber wagon, in which there were iron pipes and other things which made more or less noise. The freight train which killed him approached from the west at the rate of about twenty-five miles an hour. The negligence charged against the defendant lies in permitting the hedge to grow and remain on the right of way to such height as to cut off all view of an approaching train and in failing to give the crossing signal eighty rods from the crossing. The defendant charges contributory negligence on the part of the deceased in failing to take due precaution before driving on the track.
In answer to special questions the jury found that the hedge on the defendant’s right of way was from eight to fifteen feet high ; that the Railway Company was negligent in permitting it to grow to such height and density, and that such negligence contributed directly to the death of Williams ; that the defendant did not sound the whistle at the proper place for the crossing, and that it was negligent in failing to do so. The following are the questions and answers deemed most important:
“38. When the horses were within eight feet of the track could the deceased by looking from his seat in the wagon have seen the approach of the defendant’s train from a point near the whistling post one-fourth of a mile west of said crossing? A. No.
“39. If the question last above is answered in the negative, how far could defendant’s train have been seen by the deceased from such a position? A. About 200 feet.
“41. Was the defendant’s road straight at and for at least one-half mile east and west from said crossing? A. Yes.
“43. What was there to have prevented the deceased from seeing train approach from the west after reaching a point from twenty to twenty-four feet north of said track? A. Hedge fence and bank of cut at west side of the orchard.
“44. Was the bell of said engine rung when approaching said crossing? A. Yes.
.“49. How far west of the crossing was the engine when the fireman first discovered the team? A. 150 feet.
“ 50. Was the deceased looking straight ahead while approaching said crossing, before he first saw the engine? A. Yes.
“52. Did the deceased look or listen for the approach of the train while approaching said crossing, before the horses got on the track or before the train was within 50 or 60 feet of the crossing? A. Yes.
“53. What precaution, if any, did the deceased' take on approaching said crossing to avoid the accident? A. He looked.
“54. Was said Williams looking to the west as he approached said crossing at any time before the train was within 50 or 60 feet of where the accident occurred? A. Yes.
“55. Was said Williams looking straight ahead when approaching said crossing until the train was first discovered about 50 or 60 feet west? A. He was looking straight ahead until he turned and saw the train.
“57. Did said Williams stop his team on approaching the crossing and look or listen for an approaching train? A. No.
“59. Was there anything to prevent the deceased from hearing the approach of said train at any time before the deceased had reached said crossing after turning south on the north-and-south road leading to said crossing? A. Yes.
“60. State what there was to prevent the deceased from hearing the approach of said train if he had listened? A. Deadening of the sound by the presence of the hedge and orchard.
“61. What, if anything, did said Williams do to avoid the accident on approaching said crossing? A. Tried to whip up and get across.
“62. How far was said Williams from the approaching train when he first looked to the west and saw it? A. About 150 feet.
“63. Did said Williams look to the west for an approaching train as soon as he reached the south end of the hedge fence? A. No.”
A general verdict in favor of the plaintiff for $2500 was returned on which judgment was entered.
The serious question presented is, whether the facts specially found are sufficient to overturn it. The culpable negligence of the defendant in two important particulars contributing directly to the injury being found by the jury, the only question remaining is whether contributory negligence on the part of Williams precluding a recovery is also found. The rule that a party about to cross a railroad must exercise care and caution commensurate with the dangers of the surroundings or suffer the consequences of his own rashness is founded in reason and has often been declared by this court. Notwithstanding .the negligence of the Railway' Company in maintaining an obstruction to the view, it was still incumbent on the deceased to have regard for his own safety and to use his senses of sight and hearing to ascertain the approach of a train before attempt-to go on the track. As to whether he did so, the special findings, viewed in the light of the testimony, are conflicting and contradictory.
There were but two eye witnesses of the occurrence who testified in the case, McNulty, who was riding in the wagon with Williams, and Castanien, the fireman on the engine of the train which killed him. According to the testimony of McNulty the actions of Williams indicated no knowledge on his part of the approach of the train until the horses were on the track when Williams tightened up his lines, and the collision followed almost instantly. Whether the defendant looked or listened for the approach of the train before that time McNulty could not state. Castanien, the fireman, testified that when the train was about a hundred or a hundred and fifty feet from the crossing he saw the team coming out from behind the hedge, and as the men in the wagon came in view it seemed like they were in conversation, and'as they looked up and saw the train it seemed like they tried to get across ahead of it — snapped the lines to get across. The fireman immediately signaled the engineer to stop, and everything possible was done to stop the train but the collision occurred almost instantly.
In answer to the sixty-second question the jury say that Williams was about 150 feet from the approaching train when he first looked to the west and saw it, and in answer to the next question they say that he did not look to the west as soon as he reached the south end of the hedge. The last of these answers would seem based on the testimony of McNulty, and the other on that of the fireman. Assuming that Williams could have seen the approaching train when he was twenty-four feet from the north rail the heads of his horses would then be only twelve feet distant from it. If the team was moving at the rate of only three miles an hour and the train at the rate' of twenty-four the horses would pass over the twelve feet in a little less time than the train would move 150 feet, the distance the jury say the train was away when Williams first saw it. All the evidence shows that the team did not stop, and the jury so found. This being true, under the sixty-second finding, Williams, in order to see the train 150 feet away must have looked justas he passed beyond the end of the hedge, but in answer to the next question they say pointedly he did not do so. It must be borne in mind that the team did not succeed in crossing the track but was thrown back on the north side of it. The finding of the jury is that the hedge fence extended “ to within fifteen to twenty-four feet of the track.” If the hedge concealed the train until the deceased was within fifteen feet of the track the heads of the horses would have been but a step away from it. Why the distance was so indefinitely fixed is not apparent. As to whether the deceased listened as he approached the crossing the implications of the special findings are to the effect that he did not. But it is exceedingly difficult to say that there was a definite affirmative finding of failure to listen when he should have done so. In answer to the fifty-ninth and sixtieth questions the jury say that there was the deadening of the sound by the presence of the hedge and orchard to prevent the deceased from hearing the approach of the train ; and in answering the fifty-third question as to what precaution the deceased took on approaching the crossing they say he looked. By the next preceding question, and also by the instruction of the court, the attention of the jury had been directly challenged to the duty resting on Williams to listen as well as to look. They found he did look but failed to find that he listened., In view of the rule that special findings are to be so construed as to harmonize with and uphold the general verdict where it can be done, we are unable to say that taken altogether the answers returned by the jury in this case amount to a dii’ect finding that the deceased did hot listen while approaching the track. We reach this conclusion with some hesitation. Were it not that the jury find that the whistle was not sounded eighty rods from' the crossing and the defendant therefore guilty of neglecting to give the signal required by statute, and one which on a calm, clear morning would probably have been heard notwithstanding the obstructions to sound, there would seem to be little excuse for the deceased to drive on the track as he did without taking greater precaution for his safety..
On account of the conflicting findings bearing on the question of the contributory negligence of the deceased the judgment must be reversed and the case remanded for a new trial. | [
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Doster, C. J.
The defendant in error, as sheriff, levied an attachment upon certain goods as the property of one W. L. Denny. The. plaintiff in error, claiming ownership of the goods by purchase from Denny, brought an action against the sheriff for damages for their conversion. The petition, however, did not characterize the act of conversion as performed by the defendant in his.official capacity. To this petition only a general denial was filed by way of answer. The jury found in defendant’s favor ; judgment was rendered in accordance with the verdict, and the plaintiff prosecutes'error to this court.
On the trial the District Court, over the plaintiff’s objections, received evidence tending to show that the claim of purchase of the goods from Denny was fraudulent. The admission of this evidence constitutes the principal ground of complaint. The argument is that, in actions for damages for conversion of goods, affirmative defenses, such as justification, or impeachment of plaintiff’s title, are not admissible under a general denial ; that under such denial the defendant is limited to evidence of controverting the charge of conversion. The plaintiff in error is mistaken. The rule is the same in actions for conversion as in replevin. According to repeated decisions of this court, the filing of a general denial in the last mentioned class of actions fully puts in issue the plaintiff’s title to the property claimed. Wilson v. Fullev, 9 Kan. 176; Holmberg v. Dean, 21 Kan. 73. The courts apply the same rule in actions for conversion.
“A general denial traverses not only the conversion, but also the plaintiff’s title, and hence a defendant may under such a pleading show .the sources from which he claims title or that he has no title; or that the property belonged to a third person who transferred it to the plaintiff without consideration and with intent to cheat the third person.” Kinkead’s Code Pleading, vol. 1, § 474.
In Eureka Iron & Steel Works v. Bresnahan (66 Mich. 489), the Supreme Court of that state said :
“We are cited by the plaintiff’s counsel to the .general rules of practice of 4 Wm. IY (1833), as authority for their position that the general issue in trover is a denial of the conversion only, and not of plain tiff’s title to the goods. But these rules have not been adopted into our practice, and the general issue in this State, as formerly in England, puts the whole declaration in issue. To entitle the plaintiff to recover two points are essential to be proved : First, property in himself, and a right of possession at the time of conversion and second, a conversion of the goods by the defendant to his own use. And under the general issue the defendant may prove by any competent evidence that the title to the goods was in himself, either absolutely as general owner, or specially as bailee, or by way of lien.”
Other claims of error are made. They relate to the admission of certain other evidence in defendant’s behalf, to the cross-examination of some of the plaintiff’s witnesses, and to an instruction of the court. None of them, however, are tenable. No error is shown in the record, and the judgment of the court below is, therefore, affirmed. | [
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Johnston, J.
.This was an action brought by Free-ling Tufts, as receiver for the Kansas Trust and Banking Company, against William H. Risk, as executor of the estate of George Manley, deceased, and E. C. Armsby. Risk having been relieved from his duties as -.executor, the proceeding was revived in this court in the name of Reuben M. Manley, executor, as the successor. 'It was brought to recover $1793.86 alleged to have been borrowed by George Manley in his lifetime from the Kansas Trust and Banking Company, and through his ■ agent, Reuben M. Manley. Among other things, it was alleged in the petition that George Manley sold a block of ground in the city of Atchison, through his ¡son Reuben M. Manley, who later discovered that the -taxes for a previous year had not been paid, and that the property had been sold for the taxes of that year and a certificate issued therefor, which was in the hands of A. H. Rogers.
After some negotiations between them, Rogers agreed to surrender the certificate for the sum of $1793,86, and Manley directed him to forward the certificate, assigned to E. C. Armsby, with a sight draft for that amount. The certificate was forwarded with the sight draft, and being presented at the business house of the Kansas Trust and Banking Company, it was paid out of its funds, by direction of its vice president and general manager, R. M. Manley. Armsby, to whom the certificate was assigned, executed his promissory note for the amount on August 22, 1889, and it was made payable on January 1, 1890, with interest thereon at the rate of eight per cent, per annum. It was alleged that Armsby never at any time held anything but the naked legal title to the tax certificate, but held it in trust for George Manley, who was alleged to be the real owner thereof, and that the money advanced by the company was the debt of George Manley, but that upon demand he had refused payment.
Armsby made' default, but the executor answered* alleging, first, that the petition did not state facts sufficient to constitute a cause of action; second, that; sometime previously George Manley, since deceased,, began an action in the District Court of Atchison County against the county clerk and A. H. Rogers and others, to perpetually enjoin the issuance of a tax deed upon the tax certificate in question, and that A. H. Rogers, who was then the holder of such certificate, was made a party defendant in that action. Upon proceedings had therein a temporary injunction, was granted, which was still in full force and effect, but the action was still pending and undetermined.. It was further answered that subsequently Armsby had purchased the certificate from Rogers, and was still the owner and holder thereof; that the purchase was not made on account of George Manley, and that if Reuben M. Manley instigated or procured Armsby to purchase the same, it was on his own account, and not as the agent of George Manley, deceased; that the powers of Reuben M. Manley were defined by a written power-of-attorney given him by George Manley, and which was on record in Atchison County; that since the purchase of this tax certificate by Armsby, the company had claimed to be the owner and holder of it, and was estopped from denying that fact.
As a further defense, it was alleged that on March 13, 1893, the executor recovered a judgment in the circuit court of the United States against the Kansas Trust and Banking Company, in the sum of $8585.53, upon an unsettled account which the Banking Company had with him, and that the judgment was still in full force and effect, and that it operated as a complete bar to the claim now presented by the plaintiff. A trial was had without a jury, and a general finding was made by the court in favor of the plaintiff, upon which it was awarded judgment for $1793.86.
Although it is strongly contended that the testimony shows Armsby to have been a purchaser of the tax certificate, and that the money was advanced to him alone, also that no cause of action was alleged, or established, against the executor, and further, that no one had authority, or in fact did borrow money for, or in behalf of, George Manley, we find it unnecessary to examine or determine any of these questions. It was shown beyond dispute that Risk, as executor of the estate of George Manley, deceased, brought an action against the Kansas Trust and Banking Company in the federal court, to recover the balance of an unsettled account between George Man ley and the company. A judgment was rendered upon the confession of the company on- March 13, 1893, for a balance of $8585.53. From the pleadings and record in that case, it appears to have been an attempt at a settlement of the mutual transactions between these parties for a series of years ; and included hundreds of items for moneys deposited by, and collected for, George Manley, on the one side, and of moneys advanced and paid out by the company for, and on behalf of, George Manley.
If the theory of the company is correct, the money which it advanced when the note of Armsby was received was paid out for George Manley as in scores of other instances, and was an item in the running account between the parties. Being a part of the account, and a mere item in the claim of the plaintiff, the doctrine of res adjudicata applies and it cannot be •made the subject of another litigation. As has been held, a party cannot split up his causes of action or defense and present them by piecemeal in successive suits; nor can he, after judgment, relitigate matters which were or should have been, litigated in the former action. Bierer v. Fretz, 37 Kan. 30, 14 Pac. 558; Hentig v. Redden, 46 id. 231, 26 Pac. 701; Railroad Co. v. Anderson County, 47 id. 767, 29 Pac. 96; Larimer v. Knoyle, 43 id. 338, 23 Pac. 487.
As was said in Roe v. Roe (52 id. 728, 35 Pac. 809): “ It is the general policy of the law, strongly adhered to by this court in its prior decisions, to require every question properly involved in any suit, to be disposed of by the judgment finally rendered in the case.” The transaction in question cannot be regarded as an independent one, nor treated in the light of a separate set-off, but it constitutes a part of the account which formed the basis of the judgment, and is concluded by it. There is a greater reason for applying the doctrine of res adjudícala in this case than in the ordinary action for recovery upon account. Here a detailed account of the mutual dealings between the parties was set forth in the plaintiff’s petition ; the defendant, in its confession of judgment, set forth the account in detail, giving the items, both of debit and credit, of the mutual dealings between the parties, and then upon oath admitted that there was a balance due the plaintiff from it of $8585.53. It was a settlement' of the mutual claims between the parties, and was like unto an account stated between them. The balance having been struck, and the amount due agreed upon, they have foreclosed an inquiry into all the antecedent items of the account, unless it is alleged or shown that they were omitted through mistake or fraud. No such averment was made, and therefore it must be .concluded that the judgment agreed to and rendered in the matter of the account as between them is as conclusive in respect to the item for which this action was brought as any other of the items of the plaintiff’s claim.
The judgment of the District Court will, therefore, be reversed and the case remanded, with instructions to proceed and render judgment in accordance with this opinion. | [
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Johnston, J.
At the suit of certain creditors, Reuben Delay, as sheriff, seized on attachments certain goods and chattels as the property of I. W. Gray. An action of replevin was immediately begun by V. M. Gray, who claimed to be the owner of the property. He gave an undertaking in replevin, signed by the defendants in error, and as no re-delivery bond was given he obtained the possession of the property. On September 11, 1889, a trial was had, which resulted in a judgment .in favor of Delay, the sheriff, for the return of the property or the value of the same, fixed at $2103. To obtain a reversal of this judgment Y. M. Gray instituted a proceeding in error in this court; and, in March, 1894, the proceedings were reviewed and the judgment of the District Court was affirmed. Gray v. Delay, 53 Kan. 177, 35 Pac. 1108. The mandate of this court was filed in the District Court on March 26, 1894, and, on April 18, 1894, it was entered on the records of that court. An execution for the enforcement of the judgment was not issued until January 2, 1895; and, on March 4, 1895, the sheriff, returned the same wholly unsatisfied. The present action upon the undertaking in replevin was commenced on July 18, 1895 ; and the breach relied upon is the failure of Gray to return the property or to pay the value thereof, as ordered and adjudged by the court.
The defendants, claiming that the action was begun more than five years after the judgment was rendered and after the conditions of the bond had been broken, and that there was no averment showing that the judgment had been kept alive, nor any reason alleged why the action had not been commenced within five years after the breach, interposed a demurrer to the averments of the plaintiff’s petition, which was sustained by the court. Of this ruling error is predicated.
The conditions of the bond upon which the action was brought are as follows : “ That the said plaintiff shall duly prosecute this action and pay all costs and damages which may be awarded against him, and if the said property be delivered to him that he will' return the same to the defendant if a return thereof be adjudged.”
As the action was based on the written undertaking, the five years Statute of Limitations applied ; and the question is — when did it begin to run? It is contended by the plaintiff in error that a breach of the bond did not occur until the judgment in replevin, which was rendered in 1889, was affirmed by the Supreme Court in 1894; that so long as Gray was prosecuting his replevin action, in either the District or the Supreme Court, the condition of the bond to “duly prosecute” had not been violated. On the other side it is contended that the rights of the parties were determined in the District Court, and that its judgment was final; that it is not claimed or alleged, nor does it appear, that any supersedeas bond was ever filed, nor that any order was made staying execution of the judgment rendered by the District Court; and that the commencement of a proceeding in error did not prevent the enforcement of the judgment nor the maintenance of an action upon the replevin bond. If the judgment of the District Court was a finality, and remained so from the time it was rendered, and if a cause of action accrued upon the bond immediately after its rendition, then the plaintiff in error was too late in bringing his action, and the demurrer to the petition was properly sustained.
The effect of a proceeding in error was directly in volved in Soper v. Medberry (24 Kan. 128). It was there held that “The mere taking of a case to the Supreme Court does not in any case destroy the judgment previously rendered therein ; nor does it even suspend the operation of such judgment, unless a bond is also given for such purpose ; and if the judgment is affirmed, no new judgment is rendered, but the old judgment originally rendered remains intact, in full force and effect, and final.” In C. B. U. P. Rld. Co. v. Andrews, Adm’r (34 Kan. 563, 9 Pac. 213), it was held that our statute has changed the common-law rule with respect to the effect of proceedings in error, that the finality of a judgment is not disturbed by such a proceeding, and that an undertaking when given does not operate to stay any of the proceedings of the court below further than to prevent the issuance of an execution to enforce the judgment or final order to be reviewed. Heizer v. Pawsey (47 Kan. 33, 27 Pac. 125), was an action upon a bond given to secure the discharge of a defendant from arrest. In the original action, the order of arrest was sustained, and proceedings in error were prosecuted in the Supreme Court, a supersedeas bond being given. It was contended that the pendency of the proceeding in the Supreme Court precluded the commencement of an action upon the bond, but it was held that such a proceeding did not operate to suspend proceedings in the district court, further than to stay execution of the judgment or final order sought to be reviewed, and that the giving of a supersede'as bond did not prevent the commencement of an action upon the bond.
In Willard v. Ostrander (51 Kan. 481, 32 Pac. 1092), the effect of appeals and proceedings in error was before the court again for consideration. It was there alleged, and proof was offered to show, that in another case in which the same matters were involved the rights of the parties had been adjudged, but that a supersedeas bond had been filed and the case taken on error to the Supreme Court. The court'refused to receive the evidence, and held that the judgment was in full force, as an adjudication of the rights of the parties, notwithstanding the proceedings in error in the Supreme Court and the filing of a supersedeas bond. In that case, after a careful examination of the statutes and an extended review of the authorities, the conclusion was reached that there is no language used by the Legislature which implies that “ a stay of execution has any other force or effect on the judgment than simply to prevent its enforcement by execution. On the contrary, as a determination of the rights of the parties, it remains in full force pending the proceedings here.” It was there recognized that this rule might work hardship in some cases, and, on the suggestion that a number of actions might be pending and costs might accrue, it is said that the trial court would in the later cases and on a proper showing continue the trial until after the case pending in the appellate court had been determined.
From these authorities it is clear that the judgment rendered was a final adjudication of the rights of the parties, and remained final and enforceable during the time that the proceeding in error was pending here. Under our statute that proceeding was a new and independent one, in which parties were brought in by new process, and wherein other and different security from that provided in the District Court was required and given. It does not appear that any attempt was made to stay the enforcement of the judgment, and therefore an execution might have been obtained thereon at any time after it was rendered; but no execution was issued until more than five years after the rendition of the judgment, nor until after it had become dormant. A return of the property was adjudged and the rights of the parties settled, in September, 1889, while the action on the bond was not commenced until nearly six years afterward. The proceeding in this court not only did not affect the judgment, but it constituted no obstacle to the commencement of an action upon the bond. The failure of Gray to promptly return the property and comply with the terms of the judgment gave a right of action upon the replevin bond. No demand or execution was necessary to fix the liability of the sureties ; that was determined by the judgment itself. The action, therefore, accrued at that time; and, more than five years having elapsed without any interruption of the running of the statute, the court ruled correctly in holding that the action was barred. Its judgment will, therefore, be affirmed. | [
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Doster, C. J.
This was an action brought by the plaintiff in error as administrator de bonis non of the estate of C. C. Olney, deceased, against Walter Scott, the principal defendant in error, a preceding administrator of the estate, and his sureties on his bond, to recover money of the estate which it was alleged remained unaccounted for. The first petition filed in the case charged as in tort the misappropriation and conversion of the moneys in question, itemizing them in detail, and concluded with a prayer for judgment for the aggregate amount. Various amendments to this petition were made and two new and amended petitions filed before the issues became finally defined for trial. These amended petitions were in equity for an accounting with the former administrator, and for judgment for such sum as might be found due. The case was tried to the court. The findings and judgment were in defendant’s favor except as to a small sum, and the plaintiff brings the case here for review.
The findings show the payment of a number of claims against the estate by the former administrator without their previous allowance by the probate court, and the making of such payments constitutes the misappropriation or conversion of money charged in the original petition and the basis of the claim for accounting made in the amended petitions. The findings do not specifically state that the probate court even informally ordered the payment of any of these claims, but they do state that the claims constituted just demands against the estate, and in addition they state facts from which it is fairly inferable that the ' court, although not formally allowing the claims, recognized their validity, and informally ordered their payment by the administrator. The findings do state, however, that the court ratified their payment by allowing the administrator credit for them in his periodical settlements. No final settlement was made by the former administrator. No fraud or mistake was found by the court or alleged in the petition, and the right of the administrator de bonis non to impeach the annual or other periodical settlements made by his predecessor, in respect of the claims paid without a formal order of the probate court for payment, is the question for decision.
In Musick v. Beebe (17 Kan. 47), it was held that an administrator de bonis non was entitled to an action against a former administrator of the estate to recover assets in his hands bejong^ng the estate and not accounted for or paid over to his successor, notwithstanding the making of periodical settlements by the former administrator from which no liability for the amounts sued for was inferable. In that case, however, the liability of the administrator arose out of items justly due the estate and unaccounted for by him, and not, as in this case, out of the irregular payment of just demands against the estate. In the former case the administrator had, first, converted the usable value of part of the estate to his own benefit; second, had converted certain property of the estate to his own benefit; and, third, had failed to account for cash paid him on a sale of a portion of the estate. In this case the administrator was guilty of no maladministration of his trust involving moral turpitude or resulting in indebtedness to the estate. ITe had paid out or otherwise accounted for, the entire estate which came into his hands. He only failed to secure, as the law required, a precedent order of the probate court for the making of some of his disbursements. Notwithstanding the irregularity of his action in this respect it was ratified and his accounts approved by the probate court. Under such circumstances can he and his sureties be held liable for the amount of the payments thus irregularly made by him? We feel clear that they cannot. While actions for accounting between administrators de bonis non and their predecessors may be maintained, and while periodical settlements made by former administrators will not bar actions against them, yet such actions can be maintained only upon equitable grounds. A technical irregularity in the conduct of' the administration of the estate by the former administrator constitutes no equitable ground of liability on his .part. In Jones v. Brinker ( 20 Mo. 87 ), it was alleged that the administrator had obtained credit in his previous settlements with the county court for illegal charges against the estate, the items of which illegal charges were specified. The court remarked in its opinion :
‘ ‘ It was never held that charging merely that the administrator had obtained illegal allowances in his favor, in his settlements made with the county court was ground for applying to the chancery court to have his allowances set aside and vacated. It must be charged that the allowances were procured by fraudulent and false means and pretenses, unjustly, and to-the injury of the estate and those interested.
We do not know that we are prepared to declare the law in the full terms of the decision quoted. It maybe that in actions for accounting some classes of illegal allowances will vitiate an administrator’s annual settlements. We quote from the case to illustrate the general doctrine that substantial wrong or error and not technical illegality constitute the grounds upon which the settlements may be avoided.
This doctrine results as we think from the nature of an administrator’s periodical settlements. They are, as remarked in Musick v. Beebe, supra, and Jones v. Binker, supra, adjudications by the court, not final and conclusive, but prima facie correct. They are to be taken as correct until shown to be affected by errors and mistakes, or by « n m-i *■ • *¶ iraucL They can only be impeached upon the strength of some inequitable circumstance depriving them of effect. This in turn results, as we think, from the fact that they are in the nature of accounts stated, and as to these it is the general rule that "settled or stated accounts cannot be opened or corrected except on the ground of fraud, mistake, omis'sion, accident, or undue advantage.” 1 Am. & Eng. Encyc. Law (2d ed.), 460. This view does not give to the administrator’s annual settlement the same effect that is given to a final settlement. The one, though prima facie correct, may be impeached because incorrect; the other, being conclusive, can be impeached only because of that which invalidates all adjudications — fraud. To impeach the former, however, the settlement must be shown to be incorrect in point of fact, and not incorrect in point of technical legality.
The judgment of the court below is affirmed. | [
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Johnston, J.
H. G. Johns, who was engaged in the practice of law at Hutchinson, Kan., died intestate, leaving no widow surviving him, but only a child, who was self-supporting, was more than twenty-one years of age, and a non-resident of the state. He owned, and died in the possession of, a law library, valued at $2,457.50, the right to which is the subject of the present controversy. The substantial point of dispute between the parties is, whether the library constitutes assets of the estate, to be administered upon by the administrator, or whether, being exempt, it passed absolutely to the surviving child.
While Johns was not the head of a family and had no one depending upon him for support, his library was nevertheless exempt from attachment and execution. The statute provides that the library of a professional man residing in this State, who is not the head of a family, is exempt. Gen. Stat. 1897, ch. 118, § 5. The statute makes provision for the disposition of exempt property, and prescribes that the widow shall be allowed to keep absolutely out of the estate for the use of herself and children all the personal property of the deceased which was exempt to him from sale or execution at the time of his death. “If there be no children, then the said articles shall belong to the widow; and if there be children and no widow, said articles shall belong to such children.” The property so kept out of the estate is not to be appraised as assets of the estate, nor is it liable in any event for the debts of the deceased. Gen. Stat. 1897, ch. 107, §§ 60, 61, 62. To entitle a widow or children to the benefits of the foregoing provision it is not necessary that they should have been residing with the deceased at the time of his death, or that they should have been dependent upon him for support. Neither are the benefits .confined to minor children, nor to those who are residents of the State. There are doubtless greater reasons for providing exemptions in favor of the head of a family and extending the protection of the exemption to a widow or children who were dependent on him for a support. From considerations of public policy, however, an exemption is absolutely given to one who is not the head of a family ; and the statutes provide without qualification that personal property of the deceased at the time of his death shall be kept by the widow or the children regardless of condition, age, or residence. It is contended that where there is no family relation or family needing protection there is no reason why the property of the deceased should not be appropriated to the just claims of creditors. But this is an argument to be addressed to the law-making department. It was competent for the Legislature to extend the exemption to one who was not the head of a family, and to provide that upon his decease the property should pass absolutely to the widow and children. It has done so in terms that admit of no doubt; and with the necessity or wisdom of such provision the court has nothing to do. It cannot be regarded as a hardship upon creditors, as credit could not have been extended or satisfaction anticipated from the property in question. As has frequently been declared, exempt property is something toward which the eye of the creditor need never be turned. Under the statutes the property passed absolutely to the son of the deceased, and was not subject to the payment of the costs and expenses of administration or the payment of debts. He having the right to keep the library ab solutely out of the estate, the administrator was not entitled to the possession of the same, and the court ruled corrrectly in sustaining the demurrer to the plaintiff’s petition.
Judgment affirmed. | [
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Allen, J.
John Getty and Arthur Larkin were partners owning both real and personal property. Getty died. The plaintiff, Carrie O. Getty, his widow, was appointed administratrix of his estate. Larkin, as surviving partner, took charge of the partnership estate. A settlement was agreed upon by the plaintiff as administratrix and the defendant, by which he was to take certain firm property, to assume payment of the firm debts, and to pay the plaintiff as administratrix $6000. This settlement was reported to the probate court, and, on a hearing, at which the parties to this action appeared in person and the minor heirs of John Getty were represented by a guardian ad litem appointed by the court, an order was made approving the settlement and adjudging that it stand as a full, final and complete settlement between the parties. In pursuance of this settlement, the defendants Larkin and wife executed three promissory, notes payable to the plaintiff in her individual name. This suit was brought by the plaintiff on two of these notes ; one for $4000, the other for $1000, subject to certain credits indorsed on the larger note.
The defendants filed a long answer, challenging the validity of the settlement and the consideration for the notes, and also alleging that the action was not brought by the real party in interest. The case was tried on the pleadings and records of the probate and district courts relating to the settlement of Getty’s individual and partnership estate. The court found for the defendants and entered judgment in their favor for costs. The plaintiff brings the case here, claiming that the judgment is wrong under the facts presented to the court.
The principal question in the case is as to the validity of the settlement entered into by Mrs. Getty, as administratrix, and Larkin, individually and as surviving partner. The validity of this settlement was sustained by this court in the case of Sternberg v. Lar kin (58 Kan. 201, 48 Pac. 861). Counsel for the defendants in error challenges the soundness of that decision, notwithstanding the fact that it was in favor of Larkin, on the issue then presented. We are entirely satisfied with the law declared in that case, and think it applies as well to this case as to the one then under consideration ; that Mr. Larkin is not only protected in his rights to the property he obtained by the settlement, but that he is bound to carry out his part of it.
The technical question of the plaintiff’s right to maintain an action on the notes in her own name is also urged as a defense to the suit. The notes are in terms payable to Carrie O. Getty, without reference to her representative capacity. It is said that they are nevertheless assets of the estate ; that Mrs. Getty has not only brought the suit in her individual name, but that in her reply she has alleged, in substance, that when the notes are collected the proceeds will belong to her'individually, because of certain expenditures made by her out of her individual funds for the benefit of the estate. In 8 Encyclopedia of Pleading and Practice, 658, it is said :
“When the cause of action whether in contract or in tort accrues after the death of the testator or intestate, and the money, if recovered, will be assets, the plaintiff may declare in his representative character, or in his own name, at his option. This rule prevails under the codes as well as at common law, except that it is materially qualified where the code provides that actions must be brought by the real party in interest, and that actions by an executor or administrator upon a cause of action belonging to him in his representative capacity must be brought by him in that capacity.”
Our code requires all actions to be brought in the name of the real party in interest, subject to certain exceptions; but has no specific provision governing actions by executors or administrators, except that they need not join with them the persons for whose benefit the action is prosecuted. These notes are by their terms payable to Mrs. Getty. The addition of the word “ administratrix ’ ’ would not in any manner affect the duty of the plaintiff to make the payment. In either event, Mrs. Getty, so long as she continued to be administratrix, would be the person and the only person entitled to receive the money. The defendant is not reponsible for its application by her. Gen. Stat. 1897, ch. 113, § 9. If it was the duty of the defendant to pay the amount of the notes to Mrs. Getty without suit, it is very difficult to understand on what ground he can resist payment to her when she is compelled to resort to the courts to obtain payment. The case of Scantlin v. Allison (12 Kan. 85), while not strictly in point is similar in principle. The technical objection to the form of the action is not sound. The record shows no defense to the notes beyond the credits admitted by the plaintiff.
The judgment of the District Court'is reversed, and the cause remanded with directions to enter judgment in favor of the plaintiff for the balance due on the notes sued, on as shown by the plaintiff’s petition. | [
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Allen, J.
An information was filed in the District Court of Finney County charging the defendant with haying obtained from William Inge a check of G. T. Inge & Brother, for $89.25, by means of false pretenses, and with intent to cheat and defraud Inge Brothers. The false pretense, as set out in the information, was that two certain papers, in the form, of school-district orders for money, which were presented to Inge by the defendant for sale, were valid school-district orders for the respective sums mentioned in them. The facts showing the invalidity of these orders and the defendant’s knowledge thereof are set out circumstantially in the information. It is also alleged that Inge relied on the false pretenses and was deceived thereby, and that he was induced to and did execute and deliver to the defendant in payment for the orders a check for the sum of $89.25 drawn on the Bank of Western Kansas, and that the defendant presented the check to the bank and received from it payment of said sum of money. The information is long, and its averments are very full and circumstantial. The defendant was convicted, and sentenced- to the penitentiary for a year and a half. From this conviction and-sentence he appeals to this court. Many errors are assigned, all of which have been carefully examined, but it seems unnecessary to discuss each one separately.
As the State consented that the affidavit for a continuance might be treated as the deposition of the absent witnesses, no error appears in overruling the application.
There was no error in overruling the motion to quash the information. The fact that the defendant indorsed the warrants which he delivered to Inge in exchange for the check, and thereby guaranteed their genuineness and became liable in a civil action for the amount of them, does not necessarily relieve him from criminal liability. His guaranty may have been utterly worthless and so regarded by Inge. The cases are very rare, if indeed there could be . . . _ _ one, m which a person who issues or negotiates a forged instrument of any kind does not render himself liable for the money he receives for it. But this liability does not lessen his criminality. Money judgments against forgers and other criminals are not usually of great value. Of course, if Inge bought the warrants on the faith of the defendant’s indorsement, and relied solely on McDonald’s financial obligation, that would be a complete defense, but there is nothing in the information to indicate that he did so, On the contrary, it is distinctly charged that he relied on the warrants and the pretenses as to their genuineness and validity. It is not necessary that the false token, or false pretenses used should be the sole inducement leading the defrauded party to part with his money or property. “It is sufficient if they are a part of the moving cause, and without them the defrauded party would not have parted with the property.” In re Snyder, 17 Kan. 542; The State v. Decker, 36 id. 717, 14 Pac. 283; The State v. McCormick, 57 id. 440, 46 Pac. 777.
Another objection to the information is that- it charges two felonies : one, that of procuring the signature of Inge & Brother to a written o instrument by false pretenses, and the other of obtaining money by the same means. Motions were made at various stages of the trial to require the State to elect whether it would rely on the charge of obtaining the check or the money. The court finally required the election to be made, and the state elected to rely on the charge of obtaining the check; and it was on that charge that the defendant was convicted. Under the authority of The State v. Meade (56 Kan. 690, 44 Pac. 619), the information was not open to the objection urged. But at all events the election by the State left but the single charge, of which the defendant was clearly informed and which he had ample opportunity to meet. The other objections to the sufficiency of the information are clearly untenable.
The fact that several members of the jury were school-district officers did not render them incompetent. Various complaints are made of the manner in which the jury was made up. The fact that juror Shull was a resident and taxpayer of School District No. 4, on which one of the warrants purported to be drawn, did not disqualify him for service as a juror. It was not charged that the school district was defrauded, but that Inge & Brother were defrauded, by the use of the bogus school order. There is no merit in any of the other objections to the jui’y.
Counsel for the defendant requested the court to instruct the jury to bring in a verdict of not guilty, and the refusal of the court to so instruct is assigned as error. There was ample testimony of guilt to go to the jury. The defendant and his confederate, Grant S. Lowel, alias Luther S. Grant, alias William Haley, by calling on the officers of two school districts separately, procured partially executed orders on the treasurers for money. These orders seem to have been obtained as contracts from the school districts for compo-blackboards to be put in the school houses by the defendant and his confederate. Neither of these orders was ever authorized at a meeting of Lhe school-district board. The amount inserted in ¡the order on school district No. 6 was written in, ■either by the defendant or his partner, after being ¡signed by two members of the district board, and the ¡name of the treasurer of district No. 4 was signed to ithe other order, as director, by the defendant or his partner. These orders were sold to Inge before any work whatever had been done for either district. At the time the check was obtained there was not a cent due to the defendant on the warrants, and he of course knew all the facts. If it be conceded, that he intended to put in the blackboards, that fact furnishes no defense to the prosecution. At the time he sold the warrants they were of no binding force on the school districts and were not what they purported to be. The defendant had no right whatever to negotiate them as valid instruments.
A different question would have been presented if the defendant had fully informed Inge with reference to all the facts. If Inge had then advanced the check for them, relying on McDonald to carry out his contract and earn the sums stated in the orders by putting in the blackboards, a very different case would be presented. But McDonald, in his own testimony, makes no such claim. His own statement is that he offered to sell the warrants without any representations or explanations, and that Inge bought them without inquiry into the facts. There was ample testimony, not merely to warrant the court in submitting the case to the jury, but to uphold the verdict rendered. There was no error in receiving the verdict on the 1st of July. The fact that the Kearny county court had been adjourned until that day did not operate necessarily to adjourn the Finney county term before the receipt of the verdict. For aught that appears the verdict might-have been received in the morning, in ample time for the judge to open court in Kearny county on the same day. Many objections are made to the instructions, but.we find nothing meriting discussion in this opinion. The charge as a whole was fair, and quite as favorable to the defendant as the law warrants. The court did not err in overruling the motions for a new trial and in arrest of judgment.
The judgment is affirmed. | [
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Allen, J.
In this case we are called on to decide the single question, whether an order of sale issued without a seal may be amended by affixing the seal after a sale has been made thereunder by the sheriff. An order of sale was issued on the judgment, but by mistake the clerk failed to affix the seal. The omission was not discovered until after a sale had been made of the property described in the order and the purchase money had been paid. On the application of the plaintiff the court permitted the seal to be affixed, and afterward confirmed the sale. The defendants bring the case here, alleging error in these proceedings.
On the part of the plaintiff in error attention is called to section 1, of article 3, of the Constitution, which provides : "All courts of record shall have a seal to be used in the authentication of all process.” By section 441 of the Code it is provided that executions shall be deemed process of the court. The first paragraph of the syllabus in Dexter v. Cochran, (17 Kan. 447,) is, "'A summons issued without a seal from a district courtis void.” In Insurance Company v. Hallock, (6 Wall. 556,) it was held that an order of sale issued on a judgment of a court of common pleas in Indiana without a seal was void, and that a sale of property thereunder conveyed no title. In the case of Lessee of Boal v. King, (6 Ohio, 11,) it was held, that a writ oí fieri'facias issued without a seal, from a court having and using a seal, is void. In Weaver v. Peasley, (163 Ill. 251, 45 N. E. 119,) it was held, that ah execution issued without a seal was void, and that it could not be amended. In Choate v. Spencer, (13 Mont. 127, 32 Pac. 651,) it was held, that a summons without a seal was void. In the case of Lindsay v. Comm’rs of Kearny County, (56 Kan. 630), it was held that the signature of the clerk is essential to a valid summons. These are all the authorities cited by the plaintiff in error bearing on the question before us. The others relate to the force of constitutional requirements.
On the other hand, it is contended by counsel for the defendant in error that, whatever the rule may be with reference to the necessity of authenticating original process, through which the court obtains jurisdiction, by affixing the seal, paragraph 4222 of the General Statutes of 1889, which provides that “the court may before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect,” applies to this case, and authorized the amendment allowed. In support of this contention the cases of Arnold v. Nye, 23 Mich. 287, Bridewell v. Mooney, 25 Ark. 524, Taylor v. Courtney, 15 Neb. 190, 16 N. W. 842, Sawyer v. Baker, 3 Me. 28, Corwith v. State Bank, 18 Wis. 587, and Purcell v. McFarland, 1 Ired. (N. C.) 34, holding that an execution issued without a seal is not absolutely void, but may be amended by leave of the court, are cited.
In the following cases it was held that a summons issued without a seal might be amended : Strong v. Catlin, 3 Pinney (Wis.), 121.; The State v. Davis, 73 Ind. 359; Cartwright v. Chabert, 3 Tex. 261. In Lowe v. Morris (13 Ga. 147), it was held that a writ of error might be amended by attaching the seal, and in People v. Straight ( 5 Wend. 103) that a writ of certiorari might be amended in like manner. In Jump v. Betton’s Creditors (35 Mo. 193) it was held that a writ of attachment issued without a seal was not void, but might be amended ; and the same was held with reference to a writ of replevin in Spratley v. Kitchens ( 55 Miss. 578), and in Potter v. Smith (7 R. I. 55). In Massachusetts, the constitution provides that every original writ shall be under seal and signed by the clerk. It was held, in Austin v. Insurance Co. (108 Mass. 338), that a summons issued without the signature of the clerk was not absolutely void, but might be cured by amendment. Henderson v. Graham (84 N. C. 496), is to the same effect; though the requirement that the summons be signed by the clerk is statutory.
Counsel for defendant in error also contends that the first proposition stated in the syllabus to Dexter v. Cochran, supra, was not necessary to the decision of the case, and is therefore not binding as authority, because the court held the summons valid, and that the record failed to make an affirmative showing of the absence of the seal. It is also argued that the seal is not a part of the process itself, within ihe meaning of the constitutional and statutory requirements, but that it is merely evidence used to authenticate the process ; and, on the authority of State v. Foulk, (57 Kan. 256, 45 Pac. 603), Entrekin v. Howard, (16 id. 551), and Simon v. Stetter (25 id. 155), it is argued that, where the process is issued by one officer of the court — the clerk, to another officer of the same court — the sheriff, and is not to be served on any outside party, the authentication by a seal becomes a mere matter of form ; and that within the spirit of the Code omissions of such mere formal matters may by leave of the court be supplied at any time.
The writer is of the opinion that the ruling of the trial court is supported by a decided preponderance of authority, and accords with the modern tendency to disregard all mere technical requirements which do not affect substantial rights. The majority of the court, however, adhere to the rule announced in Dexter v. Cochran, supra, and hold that, as the Constitution requires the use of a seal in the authentication of all process, no distinction can be drawn between original, mesne and final process ; that the constitutional provision is mandatory, and its force may not be impaired by the Legislature, either by attempting directly to dispense with its requirements or through the indirect method of allowing the process to be amended after it has spent its force.
The order of the District Court is reversed, and the cause remanded with directions to set aside the confirmation of the sale, and to overrule the motion of the plaintiff for leave to attach the seal to the order of sale.
Allen, J., dissenting. | [
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Allen, J.
Do the findings of fact warrant the conclusions of law and judgment entered thereon? Suit on the note was not barred by the Statute of Limitations, because the defendant was absent from the State most of the time after the execution of the note. The case is not complicated by any question as to the rights of an innocent purchaser of commercial paper. The note was held by the payee, not only till long after maturity but until after all the transactions on which the defendant claims aright of set-off had been completed. It appears from the findings that Price, McGavock and Company made a profit of $40,000 on the tie contract they had with the Mexico, Monterey & Gulf Railroad Company ; and that Davies was entitled to one-fifth of these profits. There was a general balance due from the Railroad Company to Price, McGavock and Company of $66,-000.* It does not appear that any separation of the payments on the grading contract and on the tie contract was made by the parties. The trial court seeems to have assumed that all of the profits on the tie contract were included in this $66,000, and still remained uncollected. We shall assume this to be the fact, yet it does not warrant the conclusion of the court. Price, McGavock and Company drew on the railroad company for the whole amount due them and obtained the company’s acceptance of their drafts. They thereupon converted the drafts to their own use by transferring them to the National Bank of Commerce of Kansas City, as collateral for their indebtedness to it. They afterwards obtained judgment on the drafts for the amount of them, and this judgment was assigned to the bank. It is expressly found that the bank had no notice of any rights of Davies in the fund. Whether he could successfully assert his rights as against the bank under the circumstances we need not decide, but he clearly is not bound to do so. In this state of the case it was quite unnecessary for the defendant to prove any market value of the judgment, but he had a right to treat the profits as having been realized by Price, McGavock and Company. In the absence of any proof on the subject the presumption is that the drafts were worth their face value. When they converted the acceptances to their own use they were chargeable with his share of the profits.
Nor is there any force in the contention that a mere verbal direction given by Davies to P. P. Price, who was also a member of the firm of Price, McGavock and Company, and who it is said was the treasurer and financial manager of the company, to apply this fund to the payment of a debt of $3000 owing by Davies to him, and this note, operated to place the fund beyond the reach of Price, Mc-Gavock and Company, and of Davies. If R. R. Price had actually done what he was directed to do the note would have been paid. There is no proof nor claim that he made any misappropriation of the money or took it out of the assets of the firm at any time, or for any purpose. The findings of the court are all on the theory that the whole of the profits on the tie contract are locked up in the judgment held by the bank against the railroad company. If so, the firm of Price, Mc-Gavock and Company has had the full benefit of them, and each member of the firm is personally liable to account to the defendant for his share. Making allowance for the discounts to which Mexican money was then subject the profits due the defendant far exceed the amount of the note sued on. The defendant had the right to set off this claim for his share in the profits of the tie contract against the claim of John R. Price on the note sued on. His daughter, Cordelia Price Stevenson, having purchased the note long after maturity and long after the right to assert the set-off had accrued,^stands in the shoes of her father, and the note in her hands is subject to all defenses which might have been made against him. On the findings of fact made by the trial court the defendant was entitled to judgment.
The judgment of the District Court is reversed, and the cause remanded with directions to render judgment in favor of the defendant for costs. | [
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Allen, J.
This action grows out of a collision of a freight train of the Chicago, Rock Island & Pacific Railway Company with one of the Union Pacific Railway Company, near Linwood in Leavenworth County, on the second of January, 1894, by which William Martin, the plaintiff’s intestate, was killed.
At the time of the collision, six trains were moving eastward over the' Union Pacific Railway, in close proximity to each other. They were designated as Union Pacific number 14, Rock Island first 30, Union Pacific first 12, Rock Island second 30, Union Pacific second 12, and Rock Island number 32. Union Pacific number 14 was in the lead, and the others followed in order as above stated.’ Martin was a passenger in charge of a car load of stock on Union Pacific first 12. All these trains were running an hour or more behind their schedule time. The collision occurred at about 5 : 30 in the morning, at a point about three-quarters of a mile west of Linwood station. Rock Island train second 30 ran into the rear end of Union Pacific first 12. Westward from the point of collision, the track is straight for a distance of 960 feet; thence there is a slight curve to the right for about 306 feet. From the end of this curve it is a tangent for about 6500 feet. The collision occurred before daylight on a clear starlight night.
It appears that the trains of the Rock Island Company were operated over the line of the Union Pacific Company, between Topeka and Kansas City, under some kind of a lease, which was not introduced in evidence. Rules governing the movement of trains were promulgated by the Union Pacific Company, and the telegraph operators and train dispatchers were employed by that company ; but the trainmen on the Rock Island trains were employed by the Rock Island Company. The plaintiff charged negligence in the management of both the colliding trains. The fact that the plaintiff’s intestate was killed in the collision was conceded, and there was no serious dispute over the proposition that it resulted from the negligence of the employees, in charge of one or the other or both of the trains. Each defendant, however, denied its own liability, and sought to cast the responsibility on the other. The jury rendered a verdict against both for $10,000, on which judgment was entered. They also returned answers to special questions submitted on behalf of each company.
In answer to questions submitted on behalf of the Rock Island Company, the jury found most of the facts as above stated,' and also that as Union Pacific train number 14 passed, it left a burning fusee at or near the west end of the curve above mentioned as a signal to the following train to stop ; that Rock Island train number first 30 answered the signal, and in turn also placed a burning fusee at or near the same point, as a signal to Union Pacific train number first 12 to stop; that Quick, the engineer of the last mentioned train, saw the fusee 'at a distance of a mile and a half away; that it was his duty to answer the signal by two short blasts of the whistle ; that he did not answer it in any manner ; that if it had been answered, it would then have been the duty of the conductor and rear brakeman to at once ascertain what signal he was answering; that they could have ascertained what it was in time to protect the rear end of their train by proper signals ; that the rules of the Company required an engineer seeing a burning fusee on the track to. bring his train to a full stop before reaching the fusee, and not proceed until it should be burned out; that Quick did not stop his train, but ran on over the fusee in violation of the rules ; that if Quick had performed his duty by stopping and giving the signals, and if the conductor and rear brakeman had given proper signals to protect the rear of the train the persons operating the second section of Rock Island No. 30 could have seen these signals in time to have avoided the collision; that Union Pacific first 12 also ran over and exploded two torpedoes which had been placed on the track as additional warning; that on approaching the burning fusee, and before passing over the same, the trainmen on the Union Pacific first 12 did not send out a flagman nor give any signal to protect the rear of the train from a collision with the following train; that the rules of the Union Pacific Railway Company prescribe the manner in which signals should be used and obeyed by all trains on its road between Kansas City and Topeka, and that, while on the Union Pacific track, the persons employed on the trains of the Rock Island Company received all orders for the government and operation of the trains from the receivers of the Union Pacific Company.
In answer to special questions submitted by the receivers, the jury found that the collision occurred about 1266 feet east of the west point of the curve before mentioned ; that the track was straight from the west point of the curve for a distance of about a mile and a quarter; that an engineer on a locomotive situated at the west end of this straight piece of track could have had an unobstructed view of the tail lights on a train located at any point east of him on- the straight piece of track ; and that the employees of the Rock Island company on train second 30 could have had an unobstructed and continuous view of the tail lights of Union Pacific train number first 12 for the distance of about a mile and a half west of the point of collision ; that the Rock Island train could have been stopped within from 900 to 1100 feet from the place where the engineer first saw the tail lights of the Union Pacific train ; that he saw the tail lights when within about 1400 feet of the train; that both the front and rear brakemen of the Rock Island train saw the tail lights when the trains were still further apart, and that the train ran twice its length after the rear brakeman saw the tail lights before he called the attention of any one to the train ahead; that the Union Pacific train was running at the rate of about ten miles an hour, and the Rock Island train about eighteen miles an hour at the time of collision; that within a couple of seconds after the engineer of the Rock Island train saw the tail lights ahead of him he saw a lantern swung across the track from the rear of the Union Pacific caboose, which was a signal to him to stop ; that he did .not answer this signal; that Duplessis, the Rock Island engineer, knew that Linwood was a station where trains were in the habit of taking water, and where telegraphic orders for the movement of trains were given ; that he knew three trains were just preceding him, one or all of which were liable to stop at Linwood ; that it was the duty of the train men in charge of the Rock Island train to approach Linwood station carefully, and with their train under control; that they were chargeable with negligence, in the operation of the train, which contributed directly to the collision and the death of the plaintiff; that the tram was in charge of Rock Island employees, pulled by a Rock Island locomotive, and that the officials of the Union Pacific did not have anything to do with the movement of the train, other than giving orders directing when tb e train should leave stations; that the Rock Island Company had, and the Receivers had not power to employ and discharge the trainmen operating Rock Island trains over that track.
Separate petitions in error, charging numerous errors, are filed in this court by the Rock Island Company and the Receivers of the Union Pacific Company, and elaborate briefs are presented on behalf of each discussing at length the errors alleged. The points appearing worthy of mention in the opinion will be discussed in the order of their statement in the briefs, beginning with those urged by counsel for the Rock Island.
The first complaint is of the admission, as a deposition of the absent witness, A. T. Palmer, of the affidavit for a continuance, made by R. W. Blair. The statements in the affidavit tended to exculpate the employees in charge of the Union Pacific train from the charge of negligence, and to prove that the engineer in charge of the Rock Island train could have seen the tail lights of the Union Pacific train in time to have prevented the collision. Some of the statements are in the form of conclusions, and it is urged that they were objectionable both in form and substance. The answers returned by the jury to the special questions, however, show that the jury gave no credence to this testimony so far as it tended to exculpate the Union Pacific employees, for they found the facts to be contrary to the statements in the affidavit. The statement as to the distance at which tail lights could be seen was not necessarily an opinion. By observation the witness might have been, and probably was, able to testify from his own knowledge.
The testimony of D. C. Bevard and W. E.Donnelly set out in the brief appears to be objectionable in form, but the jury in their special findings show that they did not accept it as true ; for they found against the statements made by these witnesses. The testimony of Whittaker, of which complaint is made, is quite unimportant. There was no error in the admission of the American Mortality Tables. They were shown to be in use, and they are recognized as competent evidence to prove the expectancy of human life.
Complaint is made of the following instruction :
“ 10. It was the duty of the Chicago, Rock Island & Pacific Railway Company in the operation of its trains over the track of the Union Pacific Railway Company between Topeka and Kansas City, with the permission of or under some arrangement with the Receivers of the said Union Pacific Company, to see that they were managed and run with reference to all known, or reasonably to be anticipated surroundings, and to use all reasonably practicable care and caution as far as human foresight could go under the circumstances, to prevent its trains from running into the trains of the Receivers of the Union Pacific Railway Company, which were being operated at the same time over the same track. The want of such care and caution on the part of the servants and employees of the Chicago, Rock Island & Pacific Railway Company whom it had placed in charge and control of any of its said trains would be negligence on the part of said company.”
In criticism of this instruction, it is urged that the • deceased was not a passenger of the Rock Island Company, and that it owed toward him no greater duty than that of ordinary care ; that this instruction imposed on it a much higher degree of dili- , , ° , ° ,. ,, gence, and made it bound to use “all ° reasonably practicable care and caution as far as human foresight could go under the circumstances.” It is contended also, that this instruction imposed liability on the Rock Island Company for the negligence or mismanagement of the employees of the Union Pacific Company, who directed the operation of the train. Where two railroad companies operate their trains over the same track, and in the manner shown in this case, the measure of care to be exercised by the employees of one company to prevent injuries to passengers on the trains of the other, stated in this instruction, is not too great. It is not greater than a person of ordinary prudence would exercise under the circumstances. The consequences necessarily resulting from collisions of railroad trains are of such moment that trainmen knowing their proximity are bound to be constantly on the alert, and to exercise the utmost vigilance and promptness in avoiding and preventing such collisions. Common prudence requires this. This instruction does not impose an exceptional or extraordinary vigilance on this particular occasion, but simply requires the exercise of such vigilance as should be exacted of all employees on all trains under like circumstances.
In the first paragraph of the instructions the court informed the jury The occasion and cause of the death of said William Martin, as claimed by plaintiff, are stated in detail in the petition filed by her, which had been read in your hearing, and which you may take with you when you go to your jury room.” It is said that it is the duty of the court to construe the pleadings, and to state to the jury the issues of fact to be tried by them, and that it is error to send the pleadings into the jury room for the jury to read. This contention is sound, but it does not avail the plaintiff in error; for the court instructed the jury fully and clearly as to the issues to be tried, and the record does not show that the pleadings were, in fact, taken by the jury to their room. A similar criticism is made of the instructions with reference to the rules, though nothing was said about their being sent out with the jury. The claim is, however, that the jury were left to construe them, as well as to determine their applicability to the facts of the case. The rules were promulgated by the Union Pacific Railway Company for the guidance of their trainmen. Those read in evidence were very clear and explicit. It is not apparent that by construction the court could have afforded the jury any additional light on their meaning. Our attention is not called to any point requiring construction by the court. The jury were rightly told that it was for them to determine the applicability of the rules to the circumstances shown to exist by the evidence.
There is no merit in the criticism of the thirteenth instruction.
Much stress is laid on the refusal of the court to give the second instruction asked by the Rock Island Company, which was to the effect that, if the jury found from the evidence that the train second 30 was exclusively controlled and operated under the orders of the Receivers, the Receivers would alone be responsible for their conduct, even though they believed that the trainmen were employed and paid by the Rock Island Company. This contention has been decided adversely to the plaintiff in error in the case of the C. R. I. & P. Rly. Co. v. Groves (56 Kan. 601, 44 Pac. 628), with which we are entirely satisfied.
On behalf of the Receivers, the first contention is that a petition for the removal of the cause to the Circuit Court of the United States for the District of Kansas, was duly filed and the bond approved, but the court refused to order the removal; and that the court thereby lost jurisdiction, and thereafter had no power to proceed. The answer of the Rock Island Company was filed on the fourteenth of February. ' The petition and bond of the Receivers for removal were filed on the twentieth of the same month. The Rock Island Company did not join in the application for removal, but it is now insisted by this Company, as well as by the Receivers, that the District Court lost jurisdiction by the filing of the petition and bond. It is said that the Union Pacific Railway Company has a right to remove causes from the State to the Federal courts by reason of a federal question being involved ; that its Receivers have a.right to remove because of their appointment by the Federal court. It is contended that, conceding the right of the plaintiff to sue both defendants jointly, the Receivers have a right to remove, without being joined in the petition by the Rock Island Company, because the removal is based on the ground that a federal question is involved. It is conceded that if a right of removal liad been claimed solely on the ground of citizenship it would have been necessary for all the defendants to join; but, being based on the proposition that a federal question was involved, it is claimed that such joinder was unnecessary. In support of this claim the following cases are cited: Ames v. Kansas Pacific, 111 U. S. 449; Pacific Removal Cases, 115 id. 1; Mitchell v. Smale, 140 id. 406; Texas & Pacific Ry. Co. v. Cox, 145 id. 593; Texas & Pacific Ry. Co. v. Cody, 116 id. 606, and 17 Sup. Ct. Rep. 703; Evans v. Dillingham, 43 Fed. 177; Seattle &c. Ry. Co. v. State, 52 id. 596; Central Trust Company v. Eastern Tenn. V. & G. Ry. Co., 59 id. 523; Southern Pac. R. Co. v. Townsend, 62 id. 161; Landers v. Felton, 73 id. 311; Lund v. C. R. I. & P. Ry. Co., 78 id. 385.
The only ones of the cases cited that seem to us to support this contention are those from the 52d and 78th Federal Reporter. Our own construction of the Federal statute on the subject (section 2, page 612, Supplement to the Revised Statutes of the United States), is that it was necessary for both defendants to join in the petition for a removal. They were charged with jointly causing the death of the plaintiff's intestate. The controversy was not separable, and the Receivers alone had no right to removal on the ground that a federal question was involved. No federal question was in fact presented by the pleadings nor litigated at the trial. It was the ordinary action under our statute for wrongfully causing the death of the plaintiff's intestate. In the view that both defendants must join in the petition for removal we are supported by able Federal judges in the cases of Thompson v. C. St. P. & K. C. Rly. Co., 60 Fed. 773, and Shearing v. Trumbull, 75 id. 33; and by Texas & Pac. Rly. Co. v. Young, 27 S.W. 145; Black’s Dillon on Removal of Causes, § 77.
The deceased was riding on what is denominated a stock-pass, which contained the following provision :
“ This ticket is not issued to the holder hereof as a passenger, but is issued at his special instance and request in order to enable him to accompany a stock shipment on a freight or stock-train in order to care for the stock en o'oute, and the holder hereof agrees that the company shall not be liable to him in any manner as a passenger, nor for any accident resulting to him from the operation of the train in which he rides, or from the manner of handling the same by the employees of the company, and he further agrees that the Company shall not be liable to him for injury to the person or property of the person using this ticket, unless the same is caused by the gross negligence of the Company, and he further agrees that in no case shall the liability of the Company exceed the sum of $1000.”
The verdict was for $10,000. Both plaintiffs in error claimed the benefit of this limitation as to liability. This action is not prosecuted by Martin himself, nor by his administratrix for the benefit of his general estate. It is an action mstituted by his widow as administratrix, under section 418, General Statutes of 1897, for the benefit of herself and the children of the deceased. It is to recover their damages resulting from the death of the husband and father. It is to recover for the injury to them rather than to the deceased. Against their rights the deceased had no authority to contract. The cause of action for which the plaintiff sues never accrued to him. It could only accrue as a result of his death. His stipulation, even if binding on himself, is no defense against the statutory right of the plaintiff.
There was abundant proof of negligence on the part of the employees of the Receivers in charge of the train on which the plaintiff was riding, and the findings of the jury sustain the judgment against them. The fact that the 0 crew of the Rock Island train were also negligent has no tendency to exonerate the Receivers. The jury have pointed'out specific acts of negligence of the engineer, ■ conductor and brakeman, on the Union Pacific train, which directly contributed to the collision. This being so, the Receivers are liable wholly without reference to the question whether they are also responsible for the negligence of the crew on the Rock Island train.
The other questions do not appear to be of sufficient importance to require elaboration here. The liability of both companies was established at the trial. No error is disclosed which could have affected the verdict. That both train crews were careless and failed to take reasonable precautions in the management of their trains is clearly and abundantly shown.
The judgment is affirmed. | [
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Allen, J.
The defendant in error filed a motion for execution against the plaintiff in error to satisfy the judgment rendered in favor of Boyd against the People's Bank of Larned referred to in the preceding case between the same parties. Thereupon Choat filed an answer in which he alleged that the judgment was rendered without jurisdiction ; that the claim on which it was based was false and fraudulent; that it was for unliquidated damages for the conversion of property, and was taken by default without the introduction of any evidence.
The answer is very long and states minutely the facts bearing on the question of jurisdiction as claimed by Boyd, and also those bearing on the question of fraud on the part of Boyd in obtaining the judgment. When the motion came on for hearing Boyd objected to any hearing upon the answer and cross-petition of Choat for the reasons “that the files in this case show that the questions raised were res adjudícala between the parties; that the said L. A. Choat has no standing in court to make an attack upon said judgment; that the answer and cross-petition so filed does not state facts sufficient to constitute any reason why the judgment rendered should be set aside.” This objection was sustained by the court. The plaintiff then made specific offers of proof of the various averments in the answer. These were objected to for the same reasons, and the objection was sustained. On behalf of Boyd, testimony was then offered showing that Choat held twenty-five shares of stock in the bank, of the par value of one hundred dollars a share, and that he had paid in only thirty per cent, thereof. The court thereupon awarded execution in favor of Boyd against Choat for $4250. Choat now seeks a reversal of this order.
The general character of the proceedings on this motion is the same as that in the action in which the judgment was rendered in favor of Boyd against the bank and against Choat. There has been a careful and well-sustained purpose to prevent Choat from ever having a hearing on the merits of any matter pending before the court. It seems almost inconceivable that a district court of this State can have been the scene of such a perversion of the forms of law in the determination of the rights of litigants. The answer and cross-petition of Choat stated two defenses to the proceeding. It is 'elementary law, known and understood by every one familiar with the rudiments of legal principles, that a judgment rendered without jurisdiction is no judgment. It is equally fundamental that a judgment obtained by fraud may be attacked and defeated by any one against whom it is sought to be enforced. Yet in this case the court, at the instance of Boyd, has ruled that neither want of jurisdiction nor fraud is a defense against Boyd's motion for exe cution, and has rigidly excluded every offer of testimony to prove them. The order of the District Court awarding execution against Choat is reversed. | [
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Johnston, J.
In June, 1892, The Heine Safety Boiler Company, of St. Louis, Missouri, made a conditional sale of two large boilers tó E. E. Barton, of Hutchinson, Kansas, for $6,300. Only a small part of the purchase price was paid, and for the balance due three nqtes for two thousand dollars each were executed by E. E. Barton and indorsed by F. V. Barton. They were dated September 1, 1892, and were payable in six, nine, and twelve months after date, with interest from date at six per cent." per annum. Concurrent with the execution of the notes a contract was made and signed by both the Bartons, acknowledging that they were indebted on the boilers to the amount of six thousand dollars, and agreeing that the Boiler Company should retain as security for the payment of the notes the ownership and title of the boilers, and that if the debt was not paid when due the possession of the boilers might be taken by the' Boiler Company. Subsequently, the Boiler Company sold the notes and its interest in the-contract with the Bartons to R. R. Price. Default was made in the payment of the debt, and it appears that two years after the date of the notes there had been paid on the principal of the debt $1800, and on the interest only $152. On the day last mentioned, Price brought an action of replevin against the Bartons to recover the possession of the boilers, alleging that the possession was wrongfully withheld by them and that a demand for the same had been refused.
After the commencement of the action; Price assigned and transferred to Joab Mulvane the notes mentioned, as well as the contract securing their payment ; also his interest in the boilers and his rights and interest in the pending suit. Mulvane was thereupon substituted as plaintiff, and the issues in the case were formed as between him and the Bartons. The latter answered by denying the claims and averments of Mulvane and alleging that Mulvane was not the real party in interest, and was not a bona fide owner and holder of the notes and contract. There was a further averment that Mulvane was a member of a trust, existing in Hutchinson, Kansas, created by a combination of the Kansas Salt Company and the Hutchinson Salt Company; that these corporátions had combined to control the quantity of salt to be produced, the proportion of the salt business which should be done by each corporation, and also the price at which it should be sold to consumers. The reply was a general denial.
At the trial plaintiff below introduced the notes and contract, together with proof that they had been transferred to him and testimony showing that the debt was unpaid, and that upon demand possession of the boilers had been refused. No testimony was offered, nor any claim made by the Bartons, that the debt had been paid, nor that they did not sign the notes and contract, as stated in the petition.
The claim that Mulvane did not purchase the notes and contract in good faith is not before us for consideration. It appears that proof was offered upon that question, but the testimony has not been preserved, and therefore the matter is not open for review.
A question has been raised by the Bartons as to the sufficiency of the demand. The court instructed the jury that the Bartons were entitled to an opportunity to either pay the notes or to x ** x ° surrender the property, and that therefore demand was necessary, unless it appeared that their conduct before and after the commencement of the action dispensed with the necessity of such a demand. It appears that they never conceded the right of either Price or Mulvane to the possession of the boilers, but on the contrary denied their title and claim thereto. Instead of attempting to surrender possession after suit was begun, a re-delivery bond was given so as to enable them to hold the possession as against the plaintiff below.
In its instruction the court refers the jury to the statement made by counsel as to what his defense was, to enable them to determine whether demand, if made, would have been of any avail; but this statement, whatever it may have been, is not incorporated in the' record, and therefore we are unable to determine what claims or concessions were made at that time. The general rule is that where a demand would have been vain and unavailing if made, no proof of either demand or refusal is required. Raper v. Harrison, 37 Kan. 243, 15 Pac. 219; Schmidt v. Bender, 39 id. 437, 441, 18 Pac. 491; Chapin v. Jenkins, 50 id. 385, 31 Pac. 1084. There is testimony, however, strongly tending to show that the demand made of F. V. Barton was sufficient to meet the requirements of the law. Whatever his interest in the salt plant may have been, he appears to have been vested with, and exercised, such control as warranted the plaintiff in making a demand upon him ; and therefore there was sufficient testimony upon which to base a finding that a demand had been made. However, the conduct of the parties was such that the matter of demand is quite immaterial. Complaint is made of the instructions of the court upon this question, but we fail to find anything substantial in the objections made.
Objection is also made to the exclusion of testimony as to an unlawful combination to control the output and price of salt. There Was no averment or claim that the contract and transactions upon which this action is based formed any °' part of the illegal combination, nor that they in design or effect promoted the alleged trust. Mulvane is not even a party to the trust, as the answer states that it is formed between two corporations— the Kansas Salt Company and the Hutchinson Salt Company. It is true that there was testimony offered to show that Mulvane is a stockholder in one of the corporations, but the amount of stock held by him is small compared to the entire capital of the company. There is no attempt to show that he managed or controlled the business of the corporation.
In 1889 the Legislature passed an act declaring unlawful, all combinations in restraint of trade and products and providing penalties therefor. It provided that persons- entering into any such arrangement, contract or agreement should be guilty of a misdemeanor, punishable by fine and imprisonment. Laws 1889, ch. 257, § 3. It also provided that any person or corporation injured or damaged by such unlawful agreement or combination, could sue and recover for the full amount of the goods, wares, merchandise and articles advanced or controlled in price by the unlawful combination. There is another provision that in an action at law or suit in equity it shall be lawful in the .defense thereof to plead in bar or in abatement that the plaintiff or any person interested in the prosecution of the case is a member or agent of the unlawful combination. (Id., § 5.) The' plaintiffs in error invoke this latter provision, and claim that the plaintiff is barred from recovering his property, however remote it may be from the alleged unlawful combination.
Although the language of section 5 of the act in question is general, it is manifest that the Legislature was aiming to prevent the enforcement of the illegal arrangements or contracts prohibited by the act. Obviously the Legislature intended that parties engaged in such an unlawful combination or trust should not use the law and its machinery to promote the unlawful combination or conspiracy, nor to enforce any agreement or contract growing out of it. It was evi dently not intended to deprive persons of any civil rights, to place them outside of the protection of the law, or to inflict penalties and punishments without a trial conducted under the safeguards which the Con-, stitution provides. It will hardly be contended that a person remotely connected with a corporation which has entered into such unlawful combination, is deprived of the right to defend his home and family when assailed, or of the right to resort to the courts for the protection of his property and interests that are in no way connected with the unlawful combination. 'Such an interpretation of the law would give it somewhat the character of a bill of attainder. We cannot assume that the Legislature was unaware that the Federal Constitution forbids enactments of that character, nor that it intended to take from persons the protection of the courts, or the rights of a citizen, or to outlaw them in advance of trial and conviction. We think, rather, that the provision invoked was intended to apply where ■ the unlawful arrangement, contract, or interest was sought to be enforced or some step taken designed to promote the operation of the unlawful trust, combination, or conspiracy.
The jury was instructed that if the plaintiff was entitled to recover possession of the boilers he was also en^^e<^ to recover such reasonable value of their use, from the time of the demand 0], commencemen^ Qf ^¡16 action Until the time of trial, as the evidence warranted. The contention is that the plaintiff is not entitled to recover the usable value, but is confined to the interest on the debt. He did not sue upon the debt, but for the possession of the property to which he was entitled under the law. Since he was deprived of the property, he was fairly entitled to the value of the possession while it was unlawfully detained from him. He was not allowed the interest on the debt and the usable value as well, as has been suggested. The value of the property together with the damages allowed for the use of the same do not equal the amount of the indebtedness for which the boilers stood as security. There was, therefore, no duplication or unauthorized award of damages.
The judgment of the District Court will be affirmed. | [
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Allen, J.
While employed as a brakeman on the Atchison, Topeka & Santa Fe Railroad, at Perry, Oklahoma, Fred E. Gillefit received injuries resulting in the amputation of his left leg above the knee and seriously crippling his right foot'. This action was brought by him in the District Court of Johnson County against the plaintiffs in error, as Receivers of the Railroad Company, to recover damages for these injuries.
In the petition it was alleged that the defendants were, at the time of the injury, the duly appointed and acting Receivers of the Railroad Company, and were then operating, managing and controlling the engines and cars of the company through the Territory of Oklahoma and the State of Kansas ; that the plaintiff was in the employ of the defendants as a brakeman. on a freight train, under a conductor named Deitrick, who had full charge and control of the train ; that at Perry, in the Territory of Oklahoma, on November 28, 1894, when .the train was standing on the main track and shortly before its time to depart, the conductor ordered the plaintiff to hurry and examine the air-brakes and couplings of the stationary cars of the train ; that in obeying this order, the plaintiff discovered that two of the cars were coupled with a long, slim, bent iron rod, which was unsafe for use ; that plaintiff in attempting to remove this rod to insert a coupling pin was in the act of knocking out the rod, and in a stooping position, when the conductor, negligently and without warning, caused one or more cars to be driven back by the engine against the sta tionary cars, knocking the plaintiff off his feet and under the moving cars, whereby he received the injuries before mentioned ; that the conductor knew, or by the exercise of ordinary care might have known, that the plaintiff was at the time between the cars.
The defendants answered : First, denying generally the averments of the petition. Second, alleging that the injury, if any, happened in the Territory of Oklahoma, where the common law was in full force, and that the negligence, if any, was that of a fellow servant, for which under the law of Oklahoma the defendants were not liable. Third, that the injuries were caused by the negligence of the plaintiff himself.
This answer was not verified. The case was.tried, and resulted in a verdict in favor of the plaintiff for $6500, on which judgment was entered. The Receivers bring the case to this court.
The main contention here is that the court erred in overruling the defendants’ demurrer to the testimony offered by the plaintiff. It is said that while the answer of the defendants admitted the appointment and authority of the Receivers, it did not admit that the men in charge of the train when the plaintiff was injured, were employees or tne Jtieceivers l that there was no proof of such employment, and that there was, therefore, a fatal omission of proof of a fact essential to the plaintiff’s cause of action. ■ The plaintiff himself testified that at the time of the injury he was braking for the Atchison, Topeka & Santa Fe Railroad Company. His attention does not appear to have been called to the fact that the property of the company was then in the hands of receivers, and no witness was asked any question about the Receivers.
It may well be doubted whether there is not an implied admission in the answer that the Receivers, who pleaded to the merits of the case, were in possession of the property of the railroad company, and actually discharging the duties which devolved on them by virtue of the appointment, which they admitted by their unverified answer. The allegation in the second paragraph of the answer, that the negligence, if any, causing the inj ury, was that of a fellow servant of the plaintiff, would seem to imply that the plaintiff was a servant of the defendants. But whether the ruling of the court on the demurrer to the evidence was right or wrong, the plaintiffs in error are not now in a position to gain any advantage of the technical omission, if such there was. The defendants placed the other trainmen on the stand as witnesses. They all testified that they were working on the Atchison, Topeka & Santa Fe Railroad or for the Atchison, Topeka & Santa Fe Railroad Company. The trial seems to have been conducted throughout as though the Receivers and the Railroad Company were identical, and the question of the receivership appears to have been treated as a conceded fact. This is made clear by the seventh instruction asked by the Receivers. The court was requested to charge the jury that “ the defendants, Receivers of the Railroad Company, were not bound by law to use any particular kind of coupling pin ; that they had the right in coupling their cars to use the iron bolt that they did use, if they saw fit to do so.”
Other parts of the instructions asked, also indicate that no question as to the relationship of the Receivers to the train which caused the injury to the plaintiff was ever brought to the attention of the trial court. In this state of the case, it would be manifestly unfair to reverse the judgment merely on the ground of a want of technical proof of the connection of the Receivers with the property which it was manifestly their duty to manage. N
The question most discussed is whether the conductor and the plaintiff were fellow servants within the meaning of the common-law rule, obtaining in Oklahoma, which denies the plaintiff a right of recovery for an injury resulting from the negligence of a fellow servant. Counsel for the plaintiff . . m error contend that the test as to who are fellow servants is merely whether they are engaged in the same line of service for the same master ; that the only difference in the employment of the conductor and the plaintiff >vas that the scope of that of the former was greater than that of the latter, and that the master rests under no greater duty to properly perform the duties of the conductor than those of the brakeman.
It must be conceded that the courts have indulged in much refinement of reasoning on the question of who are fellow servants, and that the grounds on which many decisions have been based on either side of the question are not altogether satisfactory. The precise question in this case is, whether the master is liable to a brakeman for injuries occasioned by the negligence of the conductor of the train on which he was employed where the conductor had full charge of the movements of the train and’ the brakeman was acting under his orders. In the case of a railway corporation there is no personal master. The stockholders and bondholders have the property interests but no direct management of the property. Their interests are looked after by a board of directors, which, in turn, employs general officers of greater or less authority, who have the direct and personal supervision of the operation of the property. Where the general power to manage and command is given to one, and the duty of the others is merely to execute and obey, he who directs stands in the place of the principal, and the principal must respond to those under him for his misconduct. This must be so, else it is impossible to see how at common law a railroad corporation can ever be responsible to any of its employees for the misconduct of any officer occupying a superior station in the same line of service ; for all are servants, and the master is only an intangible corporate entity.
In A. T. & S. F. Rld. Co. v. Seeley, 54 Kan. 21, the liability of the company to a brakeman for the negligence of those charged with the duty of loading cars was sustained. Where the injured employee and the one vyhose negligence occasions the injury, are engaged in different branches of corporate service, it seems to be now quite generally held that the common law rule exempting the master from liability does not apply. It may be that a mere matter of difference in the grade of service of the employees is not controlling, but where one is under the direct and personal supervision and control of the other it does control. We shall not attempt anything like a. review of all the authorities bearing on this much mooted question, but content ourselves with a few citations sustaining our conclusion. C. M. & St. P. Rly. Co. v. Ross, 112 U. S. 377; Moon’s Adm’rs v. Richmond & Allegheny Rld. Co., 78 Va. 745, 49 Am. Rep. 401; C. St. P. M. & O. Rly. Co. v. Swanson, 16 Neb. 254, 49 Am. Rep. 718; Cotules v. Rld. Co., 84 N. C. 309. In Railway Co. v. Ross, supra, it was said by Mr. Justice Field, delivering the opinion of the court:
“There are'decisions in the courts of other states more or less in conformity with those cited from Ohio and Kentucky, rejecting or limiting, to a greater or less exent, the master’s exemption from liability of a servant for the negligent conduct of his fellows. We agree with them in holding — and the present case requires no further decision — that the conductor of the railway train, who commands its movements, directs vhen it shall start, at what stations it shall stop, at what speed it shall run, and has the general management of it, and control over the persons employed upon it, represents the company, and therefore that, for injuries resulting from his negligent acts, the company is responsible.”
Great care was taken in the opinion in B. & O. Rld. v. Baugh, 149 U. S. 368 (which was an action by a fireman to recover for injuries resulting from the negligence of the engineer), to distinguish it from the case of Railway Co. v. Ross. The opinion was delivered by Mr. Justice Brewer, Mr. Justice Field and Chief Justice Fuller dissenting. If the court really intended in the latter case to restrict the rule declared in the former, the question being one of general law, we are satisfied with and adhere to the law first declared in Railway Co. v. Ross in its entirety. Whoever has full and unrestricted authority to direct and command is a vice-principal, and for his negligence the master must respond.
But little need be said on the question as to the sufficiency of the proof to sustain the charge of negligence on the part of the conductor. The plaintiff testified that the conductor told him— “You hurry up and go back and examine your air- . . , .. , , ,, brakes and couplings and get the tram x 0 0 in shape. I will get the numbers here of these cars and keep a lookout. We want to get out of the road of No. 23. If we hurry up we can get over on the passing track out of her way, so as to let her have the main line.” There is no question that it was the duty of the .plaintiff to obey this order, and to carefully inspect the couplings and remove any unsafe or defective one and supply it with a proper one. He was in the discharge of this duty when he was injured. In going between the cars to remove the bent rod, he necessarily went where he could not see what was being done, and where he was out of sight of the ■conductor. The conductor knew when he gave the order that in making any change of couplings he would necessarily go between the cars. Notwithstanding this, and his assurance to the plaintiff that he would keep watch, he gave the signal to the engineer to back down the cars against the stationary ones, resulting in running over the plaintiff. Under this state of facts, it was within the province of the jury to determine that the conductor was guilty of negligence, and that it was his fault rather than that of the plaintiff that caused the injury. The conductor being the representative of the Receivers in the management of the-train, they must respond in damages for his negligence.
We find nothing in the special findings inconsistent with .the general verdict, and the questions discussed on the motion for a new trial are substantially those presented on the merits of the case.
The judgment is affirmed. | [
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Allen, J.
The plaintiff was injured in the same collision considered in the preceding case of C. R. I. & P. Rly. Co. et al. v. Lissa Martin, Administratrix. Plaintiff recovered judgment in the District Court against both defendants for $8,000. The finding's of the j.ury, upon all essential questions of fact relating to the cause of the collision, are substantially the same as in the preceding case, and it is not deemed necessary to again recite them. In this case, however, the contract under which the trains of the Rock Island Company were operated over the Union Pacific tracks between Topeka and Kansas City was put in evidence. Counsel for the Rock Island Company again argue in the brief, with great earnestness and at length, that the trains of their company, while on the Union Pacific tracks, are wholly under the control of the Receivers, and that they alone are liable for accidents resulting from the mismanagement of trains.
The first article of the contract provides for connecting the tracks of the two companies at North Topeka, Kansas City and Armstrong, and lets to the Rock Island Company the joint use of the Union Pacific tracks between these points, with equal privileges to the engin'es and trains of both roads thereon. The second article fixes the rental to be paid, which is made up partly from percentage on the investment, partly from the taxes and expenses in repairing the property and “ a proportional share of the expenses actually incurred in paying reasonable salaries to switchmen, telegraph operators, train dispatchers, and such other employees as may be employed in the performance of the duties incident to the joint use and occupation of said railway, as well as a like shaz'e of expezzses for water supply.” In the third article provision is made excluding the Rock Island Company from local business to and fz*om intermediate points, and providing for joint schedules for the movement of trains, and for rules and regulations for the operation thereof to be made by the Union Pacific for the government of trains of both companies. It is also provided that “all traizzs shall move under and in accordance with the orders of the superintendent, or train dispatcher, of the party of the first part, who. shall as nearly as may be practicable secure equality •of right and privilege to all trains of the same class.” The fifth clause of the third article reads :
“Each party shall be liable as well to th,e other as to all third persons for all injuries and damage done by the running of its trains or by the misconduct, carelessness or neglect of its employees ; and in case of collision between the trains of the two parties, the one in fault shall sustain and pay all damages, or if neither is at fault each shall bear its own loss and damage.”
From these provisions, as well as from the general context of the agreement, it is perfectly clear that the Rock Island is responsible for the conduct of its employees in the operation of its trains over the Union Pacific tracks, and that the management ° Rock Island trains by employees of the un^on pacjgc Company is confined to orders and regulations in reference to their movements. For keeping the tracks and other Union Pacific property in repair, the Union Pacific Company is primarily responsible, but, for the conduct, skill and diligence of the trainmen in the operation of the trains of the Rock Island Company, it clearly is answerable both to its own passengers and to all others affected thereby. The negligence for which the Rock Island was held liable was the negligence' of the engineer and other trainmen employed by it and in •charge of its train. We are not called on to consider •any question concerning its liability for the negligence or mismanagement of train dispatchers, telegraph operators, switchmen, or other persons employed by the Union Pacific, but whose duties relate to the ■trains of both companies.
We find no fault in the ninth instruction. It certainly states, in substantially the usual form, the correct measure of the plaintiff’s recovery in case a verdict should, be rendered in his favor. The criticism of counsel, however, is not so much of the instruction itself as of the evidence on which it was based. The claim is that, as to earning capacity, no competent evidence was offered, but that, on the contrary, incompetent evidence of the plaintiff’s profits in his business was introduced over the defendant’s objection. The plaintiff himself testified that he was a farmer, feeder, and shipper of stock, and that in the year 1892 his profits were about two thousand dollars, and in 1893 about four thousand dollars ; that that included the two years previous to the accident, and that since then he had not been able to attend to that business, nor business of any kind. It is said that this income, being derived from invested capital as well as the personal attention of the plaintiff, did not furnish a proper measure of damages ; that profits of the kind realized were speculative, and that while profits might be made in one . 0 year, losses might be sustained in another. The contention is sound so far as it relates to the rule by which the plaintiff’s damages are to be measured, but it is not sound as to the proposition that testimony with reference to the plaintiff’s employment and the nature and character of his business, and whether it is profitable or otherwise may not be admitted in evidence. Certainly evidence as to earnings in cases of this kind is not necessarily confined to wages. It is not alone wage-earners whose time is valuable, and who may recover damages for injuries resulting in the loss of it. In order that the jury may intelligently estimate the loss the plaintiff has sustained, it is necessary that they should be informed with reference to his business affairs, and while they may not, as compensation for the loss of his time, include speculative profits, or profits on invested capital, it is for them to say what loss has resulted to his business because of his being incapacitated from attending to it, and to award him as damages the value of his time and labor to himself in the transaction of his own business. This is the same compensation, and for precisely the same reasons, that a clerk or agent doing the same work for wages might recover for his loss. In Sutherland on Damages, vol. 3, page 261, it is said :
‘ Evidence of the loss sustained- by the plaintiff in his business in consequence of the injury received, is proper, not as furnishing the measure of damages, but to aid the jury in estimating them ; and for this purpose the nature of such business, its extent, and the importance of his personal oversight and superintendence in conducting it, may be shown.”
This view of the law is sustained in the following cases: Kinney v. Crocker, 18 Wis. 80; Stafford v. The City of Oskaloosa, 64 Ia. 251; City of Ripon v. Bittel, 30 Wis. 614; Wade v. Leroy, 20 How. (U. S.) 34.
. The plaintiff in this case was riding on a stock-pass, similar to that of Martin, discussed in the preceding case. In this case, Posten is plaintiff, . and the question is presented whether the liability is limited by the terms of the pass, which provides that in no case shall the liability of the Company exceed one thousand dollars. This is an attempt to restrict the liability of the Receivers of the Railway Company by contract, without the sanction of an order of the Board of Railroad Commissioners. In the case of Rouse v. Harry (55 Kan. 589, 40 Pac. 1007), it was held, that the liability of receivers operating a. railroad is to be determined by the same rules as those applicable to the company. In the case of St. Louis & S. F. Ry. Co. v. Sherlock, (ante, p. 23, 51 Pac. 899), it was held :
“A stipulation in a contract for the shipment of live stock, limiting the amount for which the railroad company shall be liable in case of loss or injury, made without the permission or order of the Board of Railroad Commissioners, is invalid and cannot be enforced.”
This decision was based on section 17, chapter 69, General Statutes of 1897, which provides : “ No railroad company shall be permitted except as otherwise provided by regulation or order of the board to change or limit its common-law liability as a common carrier.” At common law, common carriers are liable to pfersons injured through their negligence for the damages so occasioned. The provision incorporated into this stock-pass is an attempt to relieve the Company from the major part of this common-law liability, and falls within the prohibition of the statute..
Most of the other questions discussed in the brief have been considered and disposed of in the Martin case. The others appear of minor importance, and,. while all of them have been examined, we find nothing warranting a reversal of the judg'ment. It is therefore affirmed. | [
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Doster, C. J.
This was a suit upon an account for goods sold, brought by the plaintiff in error against the defendant in error, to which the defense of former adjudication was interposed. Lykins, Adler and Westenbérger were partners in the mercantile business and became indebted to Farwell & Company for goods purchased. They dissolved partnership, undei* an agreement that Lykins should retire from the firm, and that the others should assume the payment of the partnership debts and should continue the business under the name of Adler & Company. The account in question was then due, and in settlement of it, and in extension of the time of its payment, notes were taken, signed, Lykins, Adler & Company, but executed by Adler alone. Of this extension of time and giving of notes Lykins was un aware, and to it he never assented. Farwell & Company were, however, aware of the dissolution of the firm. Some question is raised as to whether it was agreed that these notes should be taken in payment of the account- or otherwise, but it is not claimed that any agreement was made releasing Lykins from liability on the original account, other than what was implied from the act of merging it into the notes. Suit upon the notes was thereafter brought by Farwell & Company against Lykins. To this suit he answered, first, by a general denial, and for a second defense alleged that his firm had been dissolved, to the plaintiff's knowledge, before the notes were given, and that he neither signed the notes nor authorized their execution in his name. The plaintiffs thereafter filed an amendment to their petition, setting forth a statement of the original account and alleging that “said notes were given in settlement of said account, which account has never been paid by defendants and is still due.'' This amendment concluded with a prayer for judgment “ as set forth in the original petition.'' No answer was filed to this amendment of the petition. The general denial contained in the answer already filed, as we may infer, ivas treated as a denial of the allegations of the amendment. The case was tried to the court, which made findings and rendered judgment as follows :
“ 1. That at the time of the execution and delivery of the notes sued on herein, .the firm of Lykins, Adler & Co. had been dissolved.
“2. That the plaintiff at the time of accepting said notes had notice that the said firm of Lykins, Adler & Co. had before that time been dissolved.
“3. That W. C. Lykins did not sign, or authorize any person for him to sign, the firm name of Lykins', Adler & Co. to said notes, and that said notes were signed and executed by one Joseph Adler without the knowledge or consent of said W. C. Lykins.
“ 4. That the said W. C. Lykins, defendant herein, is not bound by said notes.
“ Wherefore, it is ordered and adjudged by the court that the defendant W.' C..Lykins be, and is hereby, absolved from the payment of said notes or any part thereof; and that the said W. C. Lykins recover his costs against the said plaintiff, herein expended, and taxed at $ — —.”
Suit was thereafter brought against Lykins.directly upon the original account, to which the matters above stated were pleaded in defense. A trial to the court was had, and judgment rendered for defendant, from which judgment error is prosecuted to this court.
The general rule is that upon the dissolution of a partnership the mutual agency of the partners to contract in reference to the partnership business ceases ; therefore, the note given by Adler, one of the partners, in settlement of the debt to Farwell & Company, they having knowledge of the dissolution of the firm, was not binding upon Lykins, he not having assented thereto. Doubtless it was the recognition of this principle of law which moved the plaintiffs in the former suit to amend their petition upon the notes by pleading the consideration for which they were given, and by setting out the items of the original account and alleging that they remained due and unpaid. The purpose was to recover upon the account, if the defense of non-execution of the notes should prevail. The fact that there was a good consideration for the giving of the notes, would be no sufficient answer to the.objection that they were in fact notgiven ; hence, to guard against the contingencies of the defendant's proof, and to recover upon the debt itself if the claim of recovery upon the notes as evidence of such debt should fail, the amendment in question was made.
The fact that the prayer for judgment was the same as in the original petition does not justify the plaintiffs in disavowing the evident purpose of their amendment. The prayer for judgment is no part of the statement of a cause of action or ground of defense ; and while it may be looked to as aii aid to the construction of doubtful or ambiguous pleadings, it cannot force upon the pleadings a meaning totally different from that which the narration of the facts logically implies. The making of this amendment, therefore, involved in the issues of the former action not only the execution of the notes but also the existence of the account — the claimed consideration for the notes. Had the court trying such action made no special findings, but found generally in favor of the defendant and against the plaintiffs, no possible question could arise as to the effect of such general finding. It would be res jttdicata. Is it any the less so because the court omitted to find specially as to the indebtedness upon the account, but found specially as to non-indebtedness upon the notes, and then terminated its conclusions with a general judgment for costs in defendant's favor? A court trying a case is not required to make special findings unless-requested to do so by one of the parties. Gen. Stat. 1897, Civil Code, §300. However, a court may, of its own motion, in addition to its general judgment, find specially upon all the issues or upon a part of them ; and the fact that in such case the court failed to find specially upon some of the issues but not upon all of them, does not imply that it gave them no consideration and meant to render no judgment upon them. Therefore, in a case tried by the court, when findings are not made upon all or some of the issues, it must be presumed that a request therefor was not preferred, because it will be presumed that the court would obey the law, and make findings if requested to do so. In such case it must also be presumed that the court adjudged all the issuable facts in favor of the prevailing party, although specially finding only as to a part of them, else the general judgment would not have been rendered.
It is to be observed, however, that the court did not render a general judgment for defendant, but rendered a judgment for costs in his favor, only, and the difficult question is, whether a judgment for costs merely, is to be treated as a final determination of all the issues of the case. Upon this, which is really the meritorious question, we have not been aided by argument or brief of counsel to any extent. The authorities, so far as they have been collated in the text-books, are to the effect that a judgment for costs merely, is interlocutory and not final. Black on Judgments, § 31; Freeman on Judgments, (3d ed.) § 12, et seq.; Lisle v. Rhea, 9 Mo. 172; Scott v. Burton, 6 Tex. 322; Dusing v. Nelson, 7 Col. 184, 2 Pac. 922. The courts of Missouri and Texas have repeatedly affirmed the rulings first made by them and above cited, and in fact we are aware of no directly opposing authorities. The ground of these decisions is that the record of final adjudication, if for defendant, as in this case, should include an order “ that plaintiff take nothing by his suit,” or “that defendant go hence without day,” or the like, failing to do which, it does not appear with certainty that the issues in controversy have been finally determined ; that costs are but incident to judgments, and that the allowance of the relief mainly prayed for is not to be inferred from the allowance of the incident. We are unable to appreciate the force of this reasoning, and are constrained to take an opposing view. Under our statute, costs are allowed as matter of right to the prevailing party in actions for the recovery of money ; but a final judgment for costs cannot be rendered until the final determination of the suit. The costs of motions and other interlocutory proceedings may be adjudged as the case progresses; and to either party, in the sound discretion of the court; but such costs as depend upon the final determination of the main controversy can only be taxed upon such determination, and then only against the losing party. That which is necessarily implied from a record is as much within the record as the written matter entered upon the judgment roll. Such being the case, a judgment for costs, rendered upon the close of the trial, becomes conclusive of the fact that the case has been finally tried and judgment finally rendered upon the issues involved. If such were not true the judgment for costs could not have been rendered. A judgment upon the merits of a case for the recovery of money and a judgment for costs in such case stand in the relation of cause and effect. The effect, i. e., the judgment for costs, can be attributed to no possible cause other than a judgment upon the issues of the case. In Burlen v. Shannon, 99 Mass. 203, it was said :
“ It is allowable to reason back from a judgment to the basis on which it stands, upon the obvious principle that, where a conclusion is undisputable and could have been drawn only from certain premises the premises are equally indisputable with the conclusion. But such án inference must be inevitable, or it cannot be drawn. These we understand to be limitations of the rule according to all the well considered authorities, ancient and modern.”
An order contained in a judgment “that plaintiff take nothing by his suit,” looked at in the light of its own precise terms and nothing more, is not conclusive of the question of final adjudication ; for aught which such language discloses the plaintiff’s suit was abated — not tried. An allowance to defendant to “go hence without day," does* not imply, ex vi termini, that he may not have to return some other day, only that the day for his return, if any, is not fixed. Yet, according to the decisions above noted, either of these orders, if incorporated with the judgment for costs, would be conclusive evidence of a final adjudication. We do not assent to this view.
To recapitulate the facts of the former action between the plaintiff and defendant in error, and apply the principle herein adverted to, the pleading in such action presented the issue of indebtedness both upon the notes and upon the account. Special findings were made in defendant’s favor as to the indebtedness upon the notes, but no findings were made as to the indebtedness upon the account, other than a general finding or judgment for costs in defendant’s favor. This will be held inclusive of the issue as to indebtedness upon the account and to be a bar to this action subsequently begun for the recovery of the same indebtedness.
The above views are those of my associates, not my own. I do not concur in them. To begin, it is very doubtful in my ipind whether the original petition and the amendment to it, should be construed as demanding recovery in the alternative upon the account or the notes. Such method of stating a case would have been adjudged faulty if objected to, and we are hardly justified in assuming that counsel intended to violate an elementary rule of pleading and make his claim in the alternative. The amendment setting out the account, while containing much of unnecessary detail, would seem to be nothing more than a recital of the consideration for the giving of the notes. In no fair view, can one who merely sets out the consideration for the debt upon which he sues, be said to demand judgment upon such consideration as an original obligation. *
But my chief dissent is from the view of the judgment as res judicata. I think that the conclusion that such judgment evidences a thing decided has been reached through a violation of the settled rule that estoppels must be certain and not argumentative. An estoppel must appear by the very terms of the record, and not be evolved out of it by processes of reasoning. I do not lay the stress of my dissent. entirely upon the fact that the judgment was for costs only, although the decisions of the courts of Colorado, Missouri, and Texas seem to me to be sound. I draw my conclusions chiefly from the fact that the record is an utter blank as to the disposition made of the claim for recovery upon the account, assuming that by a fair construction of the pleadings such claim was made. I think the rule that judgments are conclusive upon everything that was within the issues of the case applies only where the terms of the judgment are broad enough to cover all the issues as made by the pleadings, and this I believe to be the rule of all the decisions. In many cases where the record is incomplete or ambiguous, extrinsic evidence is resorted to for the purpose of proving what matters are actually litigated ; but in this case no evidence was offered tending to show that the issues as to the indebtedness upon the account had been tried and determined. The general rule of estoppels by judgment is well stated in Russel v. Place, (94 U. S. 606.) It was there said :
“If, upon the face of a record, anything is left to conjecture as to what was necessarily involved and decided, there is no estoppel in it when pleaded, and nothing conclusive in it when offered as evidence.
“A judgment of a court of competent jurisdiction, upon a question directly involved in one suit, is con- elusive as to that question in another suit between the same parties ; but to this*operation of the judgment it must appear, either upon the face of the record or be shown by extrinsic evidence, that the precise question was raised and determined ■ in the former suit. If there be any uncertainty on this head in the record, the whole subject-matter of the action will be at large and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing-the precise point involved and determined. To apply the judgment and give effect to the adjudication usually made, when the record leaves the matter in doubt, such evidence is admissible.-”
A case which, to my mind, is .precisely in point is Steam-Gauge & Lantern Co. v. Meyrose, 27 Fed. 213. In that case it appeared that a bill in equity for an infringement of a patent had been dismissed upon the merits. A subsequent action for the same cause was begun. To this a plea of former adjudication was filed. The plea was held unavailing, because it did not appear by the record in the 'former case that the decision was upon the validity of the patent, or upon the question whether the defendants were guilty of infringing it. In this case, the amendment to the petition, setting up the account, alleged it to be due and unpaid. The judgment was against the defendant for costs only. Two issues were involved under this amended petition : First, Did the defendant owe the account ? Second, Was the account due? Which of these issues did the court find for defendant? Perchance it found that the defendant owed the account but that it was not then due, in which event he was only entitled to an abatement of the suit, and the plaintiffs were entitled to a new action thereafter.
However, the view of the majority of the court being opposed to that entertained by myself, the judgment of the court below is affirmed. | [
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Doster, C. J.
This was a suit brought by plaintiff in error against defendant in error, a city of the. second class, to recover upon city warrants issued in aid of the construction of a railroad, pursuant to chapter 107, Laws of 1876, as first amended by chapters 142 and 144, Law3 of 1877, and subsequently by chapter 183, Laws 1887 (Gen. Stat. 1897), and particularly in pursuance of section 11 of the first mentioned chapter. The case was submitted to the court upon an agreed statement of facts, on which judgment was rendered in favor of the defendant city. From this judgment the plaintiff prosecutes error to this court. The warrants were issued pursuant to a vote of the city council, November 1, 1887, and at that time one J. L. Huey was mayor of the City and one James'Hill was a member of the city council. Huey was also president of the railroad company to which aid was voted, and Hill was a contractor under whom the road had been built by contract with the railroad company. Hill voted for the issuance of the warrants, and his vote was necessary to make up the requisite majority. Huey as mayor approved the proceedings of the council ordering the issuance of the warrants, and also as such officer signed the warrants when issued.
It is urged that the fiduciary relation in which these men, stood to the City precluded them from taking part in the proceedings by which the issuance of the warrants was authorized and attested. 'We are of a contrary opinion. The contract, it must be observed, which Hill had taken to construct the railroad, was not a contract with the City or in which the City was interested. It was a contract with the railroad company, and with it alone. It will also be observed that.no question was raised as to whether at the time the issuance of the warrants was made the railroad company had constructed its road in pursuance of the terms upon which the aid had been granted. No statute upon which the contention of defendant in error can be based has been cited to us, and we know of no rule of law by which these persons as officers of the city government were precluded by reason of their business relations with the railroad company from executing the ministerial duty cast upon them by the statute in pursuance of the vote of the electors of the City. Chapter 144, Laws 1877, declares that if a proposition to aid railroads shall receive the vote of a majority of the electors, the mayor and council for, and on behalf of, the city shall order the city clerk to subscribe for the stock, and shall also order the securities of the city to be issued in payment therefor. Formerly county and city authorities had a discretion in such matters, notwithstanding the authority conferred upon them by the vote of the electors, as decided in Land Grant Railway Co. v. Comm’rs of Davis Co., 6 Kan. 256; but, under the statutes hereinbefore cited, the* duty has been made a merely ministerial one to carryout the directions of the electors, and it was so held in C. K. & W. Rly. Co. v. Comm’rs of Stafford Co., 36 Kan. 127, 12 Pac. 593. In taking the action which these officers did, they were simply doing what their constituency had directed should be done, and nothing' more. The one committed no fraud upon the City and violated no rule of law in voting that the mayor and clerk be ordered to issue the warrants, for a superior authority — the electors — had directed by their ballots that this very thing should be done. For the same reason, the other neither committed a fraud nor violated a rule of law in attesting the order of the council and signing the warrants. The electors had likewise directed that these very things should be done.
It is also urged that the vote by which the issuance of the warrants was directed was not evidenced in proper form. It is argued that the authority to issue municipal securities voted in aid of the construction of railroads can be exercised only by ordinance ; that the vote taken in this case was upon a mere motion by a member of the council, and this will not suffice. Some decisions of the inferior Federal courts have been cited as sustaining this claim. These decisions were made in cases where outstanding city bonds or other city indebtedness had been merged in the form of what are called refunding bonds. In such instances, the action of the city council is not ministerial in its nature. It is one in which judgment and discretion are to be exercised. There is no law compelling city councils to fund outstanding city indebtednes, and it may be that in such cases the statute (section 69, chapter 37, General Statutes 1897), and other statutory provisions in pari materia require the exercise by ordinance-alone of the authority conferred. In the case of City of Alma v. Guaranty Savings Bank (60 Fed. 203), it was held that a city council might by resolution submit to a vote of the electors the question of borrowing money and issuing bonds, and that a formal ordinance in submission of the question was not necessary. In passing upon this point, the court declares as a general rule :
“ If the action taken by a municipality amounts to prescribing a permanent rule of conduct, which is to be thereafter observed by the inhabitants of the municipality, or by its officers in the transaction of the corporate business, then, no doubt, the rule may be more properly expressed in the form of an ordinance ; but it is eminently proper to act by resolution, if the action taken-’s merely declaratory of the will of the corporation i a given matter, and is in the nature of a ministerial act.”
This language commends itself to us as applicable to the facts of the present case. .The action of the council is evidenced by the following quotation from its proceedings :
“0. Ingersoll moved warrants to the amount of thirty thousand dollars to be issued to the Grouse Creek Railway Co. Carried.
“ It is therefore ordered that the warrants of the city of Arkansas City in said Cowley County be issued to said Railway Company in the sum of thirty thousand dollars.”
This is dated at Arkansas City, Kan., November 1, 1887, signed by the mayor and five members of the council, constituting a majority of -the whole number, and attested by the city clerk. There is no substantial difference between the motion above stated, and the action of the council in adopting the same and ordering the issuance of the warrants pursuant thereto, and the technically variant form of a resolution.
The two above-noted objections to the validity of the warrants sued upon are the only ones brought to our attention. Neither of them is availing, and the decision of the District Court will therefore be reversed, with directions to enter judgment upon the agreed statement of facts in favor of the plaintiff in error. | [
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Malone, J.:
Debra K. Womelsdorf appeals her convictions of arson and committing a fraudulent insurance act. Womelsdorf claims: (1) there was insufficient evidence to support both convictions; (2) the district court committed reversible error in the procedure it followed in responding to a juiy question during deliberations; (3) the district court committed reversible error when it accepted the jury’s verdict' without inquiring into the accuracy of the verdict; and (4) the district court committed reversible error by improperly instructing the jury on reasonable doubt. For the reasons set forth herein, we affirm the district court’s judgment.
On September 9, 2009, at approximately 10 p.m., Krystal Stahl, a 911 dispatcher for Anderson County, received an emergency call from a woman who said her name was Debbie, but the woman could not provide her last name or address. The woman repeatedly asked for help and told Stahl that “they” had been holding her for 2 days. The first call was cut off, and approximately 2 minutes later, Stahl received a second call; this time, the woman gave a partial address and said her last name was Womelsdorf. As a result of the calls, Sergeant Shawn Chambers of the Anderson County Sheriff s Office was dispatched to Debra Womelsdorf s home.
When Chambers arrived at Womelsdorf s home, he found a truck on fire; the truck was parked with its rear bumper touching the porch of the house. Chambers called the fire department and walked around the house to assess the situation. On the east side of the house, Chambers found Womelsdorf lying on a pile of pillows and blankets approximately 6 to 10 feet from the house. Womelsdorf had a piece of rope around her wrist and seemed hysterical. Chambers helped Womelsdorf away from the house. During this process, the fire spread from the truck to the house. Womelsdorf was taken to a hospital for examination.
While at the hospital, Womelsdorf met with Kansas Bureau of Investigation Agent Jeff Hupp and Detective Vem Valentine of the Anderson County Sheriff s Office. Womelsdorf told Hupp and Valentine that while in bed the previous night, she heard a noise at the screen door, so she picked up a baseball bat and went to the door. There were two men outside, who identified themselves as friends of Wolmesdorf s son, Dakota Ramsey, who did not live with Womelsdorf at the time. Womelsdorf opened the door, and the men shoved her to the floor. The men took the baseball bat from her, struck her several times in the head, and ultimately tied her to the bed in her bedroom. Womelsdorf told Hupp and Valentine that the men said they had seen her getting gas at a convenience store and came to her house to rob her.
Womelsdorf also told Hupp and Valentine that the two men kept her tied to the bed except when they allowed her to get up to use the bathroom. Womelsdorf stated that the men sometimes left her unattended but tied to the bed while they drank and watched tel evision in another room. The men searched Womelsdorf s home for money, rummaging through her drawers and drinking whiskey and beer. The men also hit Womelsdorf with either a tire iron or crowbar that they had brought with them and threatened her with a gun.
According to Womelsdorf, the following morning, the men were hungry and she did not have any food in the house, so they forced her to drive to a convenience store and to the Dollar General Store in Iola. One of the men hid in the back of her truck and threatened to kill Ramsey if Womelsdorf told anyone what was happening. Womelsdorf purchased cigarettes at the convenience store, and she purchased a loaf of bread and some allergy medicine at the Dollar General Store. After returning to the house, the men again tied Womelsdorf to the bed, ate sandwiches, and continued drinking.
On one occasion when Womelsdorf was in the bathroom, the men discovered some money under her bed. Angry because she had lied about not having any money, the men lacked her and hit her with a crowbar. When the men decided to leave, they took the keys to her truck, backed the truck up to the porch, and lit the truck on fire. Womelsdorf told Hupp and Valentine that she realized there was a fire and cut herself free from the bed using a pocketlcnife she had hidden in her pants pocket. She went to Ramsey’s bedroom, turned on her cell phone, and called 911. Womelsdorf then threw some of Ramsey’s pillows, blankets, and other belongings out the window and escaped out the window herself.
The day after the fire, Valentine and Nancy Thomas, an investigator for the Kansas State Fire Marshal’s Office, searched Womelsdorf s house and collected physical evidence. Valentine later testified that the refrigerator in the house was “completely full” of food. Thomas photographed the interior and exterior of the house and later testified that the bed to which Womelsdorf stated she had been tied did not have any indentations, as she would expect if someone had been tied to it for a long period of time, nor was the mattress disturbed, as if someone had looked under it. Thomas also testified that she did not find any rope on the bedpost and that the fire would not have been hot enough to destroy rope. In addition, Thomas found $2 in currency in plain sight, a gun behind the bedroom door, and five cell phones inside the bureau. Thomas made test calls and two of the cell phones were activated. The investigators did not find any whiskey bottles, beer cans, or beer bottles inside the house.
On October 22, 2009, Womelsdorf completed and submitted a sworn “Proof of Loss” statement to Farm Bureau Mutual Insurance Company (Farm Bureau). Womelsdorf completed the statement in the office of Keith Renz, a property claims adjuster for Farm Bureau in Olathe, Kansas. The sworn statement was signed by Womelsdorf and stated that the loss “did not originate by any act, design or procurement on the part of the insured, or this affiant.” The total amount of the claimed loss was $177,752.42.
On December 9, 2009, Womelsdorf was deposed at the Farm Bureau office in Garnett, Kansas, in connection with her insurance claim. The story Womelsdorf told at the deposition differed from her statement to Hupp and Valentine. In her deposition, Womelsdorf added new details about the alleged kidnapping incident: (1) The two men at Womelsdorf s door stated they needed a ride because their truck had broken down; (2) the men told Womelsdorf they were looking for money from the Sale Barn, an auction house and restaurant where Womelsdorf had previously worked; (3) the men took $60 from her purse; (4) the men dragged Womelsdorf by her hair to the laundry room and forced her to show them how the washing machine worked because they were wet and dirty and wanted to wash dreir clothes; and (5) the men threw boots and shoes at Womelsdorf 5 to 10 times and hit her in the stomach and shins. Womelsdorf also stated in the deposition that she owned her home and had a mortgage through Garnett State Bank with an outstanding balance of approximately $62,000.
On April 20,2010, tire State charged Womelsdorf with one count of arson. On June 24, 2010, the State filed an amended complaint also charging Womelsdorf with one count of committing a fraudulent insurance act and one count of making a false information. A jury trial commenced on December 15, 2010. Stahl testified for tire State and played recordings of the two 911 calls. Chambers also testified for the State and showed the jury the video recorded by the camera in his patrol vehicle, which showed Womelsdorf s burning truck and, eventually, her burning house. The State also admitted the photographs Chambers took on the night of the fire, including photographs of the burning truck, the blankets and pillows on which he found Womelsdorf, the house after it caught fire, a gas can found in the front seat of the truck after the fire department extinguished the fire, and the window through which Womelsdorf said she escaped.
The State presented the testimony of Dr. Lynne Holz, who examined Womelsdorf at the hospital on the night of the fire. Holz testified that the injuries she found on Womelsdorf were not consistent with her story that she had been struck by a baseball bat on tire left side of her body. Holz also testified that she saw no physical evidence of ligature marks. The State admitted photographs of Womelsdorf taken at the hospital that night. The State also called Hupp and Valentine, both of whom testified about their conversation with Womelsdorf at the hospital the night of the fire. Thomas also testified for the State, explaining inconsistencies between Womelsdorf s story and the findings she made when she investigated Womelsdorf s home die day after the fire. In addition, Thomas testified that the fire in the truck was started by a person who poured gasoline into the interior of the truck and lit it on fire.
The State also called Raymond Hess, the owner of the convenience store Womelsdorf visited on the morning of September 9, 2009. Hess reviewed his surveillance camera footage for the day in question, and a copy of the footage was admitted into evidence and played for the jury. The video showed Womelsdorf coming into the convenience store, purchasing cigarettes from Hess, and leaving. Just prior to Womelsdorf entering the store, another man entered and, when Womelsdorf left, she passed another man on his way into the store. Likewise, David Hines, the district manager for the Iola Dollar General Store testified and the jury saw footage from the surveillance camera in that store. The video showed Womelsdorf entering the store, purchasing some bread and allergy medicine, and leaving. Brenda Kern, the store manager who rang up Womelsdorf s purchase, testified that Womelsdorf said “somebody was sick and she had to get some medicine and that’s about it.”
Finally, the State called Keith Renz, the property claims adjuster for Farm Bureau. Renz testified that Womelsdorf originally reported that someone broke into her house and ran a truck into the house on September 9, 2009. The State admitted the sworn proof of loss statement that Womelsdorf completed in Renz’ office in Olathe, Kansas, on October 22, 2009. Renz testified that when he met with Womelsdorf during the investigation of the fire, Womelsdorf told him she that she had $300 in her bank account and that $1,600 had been stolen from her. Womelsdorf also told Renz that she was not behind on any payments except for some credit card bills she was disputing. The State then introduced bank records, showing the lien on Womelsdorf s house held by Garnett State Bank and a notice of late payment in February 2009.
At the end of the State’s case, the district court dismissed the charge of making a false information. Womelsdorf did not present any witnesses or offer any evidence, relying on the theory that she was a victim of kidnapping, not an arsonist. After deliberating, the juiy found Womelsdorf guilty of arson and committing a fraudulent insurance act. On January 19, 2011, the district court sentenced Womelsdorf to a controlling sentence of 18 months’ imprisonment and placed her on probation for 24 months. Womelsdorf timely appealed her convictions.
Sufficiency of the Evidence to Support Arson Conviction
Womelsdorf claims the evidence was insufficient to support her conviction of arson. In essence, Womelsdorf argues that the State’s theory of arson did not make sense and that if Womelsdorf wanted to commit arson, she would not have presented such a complex story to law enforcement. Womelsdorf asserts that if her intent was to bum her house, she would have started a fire in the house before calling 911 rather than starting a fire in the truck. Womelsdorf contends that she had no intent to burn her house and she did not commit arson as charged.
“ ‘ “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found tire defendant guilty beyond a reasonable doubt.” ’ [Citation omitted.]” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
The complaint alleged that Womelsdorf “did unlawfully, and knowingly, by means of fire or explosive, damage any building or property, to-wit: home, automobile & contents of home which is a dwelling with intent to injure or defraud an insurer or lienholder, in violation of K.S.A. 21-3718(a)(l)(B).” As stated above, Womelsdorf argues that the State’s explanation was not “the most effective way” for Womelsdorf to destroy her home and collect insurance money. Womelsdorf argues that the more reasonable inference is that she did not intend to damage her home, automobile, or the contents of her home by fire, nor did she intend to defraud an insurer or lienholder. But as our Supreme Court has stated:
“[0]ur function in reviewing evidence sufficiency is not to select the inference which we find most compelling, but to view the evidence in a light most favorable to the prosecution. We permit a factfinder to infer the existence of a material fact from circumstantial evidence, even though tire evidence does not exclude every other reasonable conclusion or inference. [Citation omitted.] Moreover, a conviction of even the gravest offense may be sustained by circumstantial evidence. [Citation omitted.]” State v. Scaife, 286 Kan. 614, 618-19, 186 P.3d 755 (2008).
Here, one of the reasonable conclusions or inferences the jury could have drawn from the evidence presented was that Womelsdorf s explanation involving two men who held her hostage and ultimately started the fire was untrue and that Womelsdorf herself started the fire with the intent to collect money from her insurance company. As the State notes in its brief, there were numerous inconsistencies between Womelsdorf s statements and the physical evidence was not entirely consistent with her story. For example, Womelsdorf stated in a police interview that her captors tied her to the bed, yet Thomas, the fire investigator, testified that there was no sign that anyone had been tied to the bed. In addition, Womelsdorf stated that her captors hit her repeatedly with a baseball bat and a crow bar, yet Holz, the doctor who examined her at the hospital, found very few scrapes and bruises and testified that Womelsdorf s injuries were not consistent with being hit with a baseball bat. Holz also testified that he saw no physical evidence of ligature marks. Finally, the evidence showed that Womelsdorf was late with her mortgage payments. Considering the evidence in the light most favorable to the State, we conclude there was sufficient evidence for the jury to convict Womelsdorf of arson.
Sufficiency of the Evidence to Support Conviction of a Fraudulent Insurance Act
Next, Womelsdorf claims there was insufficient evidence to support her conviction of committing a fraudulent insurance act. Womelsdorf argues: (1) The jury could not properly convict her because the date of the alleged crime given in the jury instruction — October 22, 2009 — did not match the date in the complaint; and (2) the juiy could not properly convict her because it was instructed that the act occurred in Anderson County, and the evidence did not support such a finding.
Womelsdorf was charged with committing a fraudulent insurance act in violation of K.S.A. 2010 Supp. 40-2,118(a). This statute defines a fraudulent insurance act as:
“[A]n act committed by any person who, knowingly and with intent to defraud, presents, causes to be presented or prepares with knowledge or belief that it will be presented to or by an insurer, purported insurer, broker or any agent thereof, any written statement as part of, or in support of, an application for the issuance of, or the rating of an insurance policy for personal or commercial insurance, or a claim for payment or other benefit pursuant to an insurance policy for commercial or personal insurance which such person knows to contain materially false information concerning any fact material thereto; or conceals, for tire purpose of misleading, information concerning any fact material thereto.”
The district court instructed the jury that to establish the charge of fraudulent insurance act, die State needed to prove:
“1. That the defendant presented a written statement as part of, or in support of, a claim for payment or other benefit pursuant to an insurance policy for personal insurance covering her home, automobile and contents of her home;
“2. That the defendant knew such statement to contain materially false information concerning any fact material thereto;
“3. That the defendant intended to defraud; and
“4. That this act occurred on or about the 22nd day of October, 2009, in Anderson County, Kansas.”
Womelsdorf first contends that the conviction must be reversed because the alleged date of the crime differed between the com plaint and the jury instruction. The original complaint, filed on April 20, 2010, charged Womelsdorf with one count of arson. On June 24, 2010, the State filed a first amended complaint, charging Womelsdorf with one count of arson; one count of committing a fraudulent insurance act between the 9th and 22nd of September, 2009; and making a false information. On December 17, 2010, the State again moved to amend the complaint to change the date of the fraudulent insurance act to October 22, 2009. Defense counsel stated he had no objection to the amendment, and the district court granted the motion on the record. Thus, tire complaint was amended to include a date of October 22, 2009, for the charge of committing a fraudulent insurance act, and this was the date given in the jury instructions. Therefore, because there was no discrepancy in dates, this portion of Womelsdorf s argument fails.
Next, Womelsdorf argues that her conviction must be reversed because the complaint and the jury instructions required the State to show that the act occurred in Anderson County, Kansas, but there was insufficient evidence to support that finding; rather, all the evidence showed that the allegedly fraudulent insurance act was committed in Johnson County, Kansas. Although Womelsdorf argues insufficiency of the evidence, she is essentially claiming the district court did not have jurisdiction to convict her of this offense. The “element” that Womelsdorf attacks as being unsupported by the evidence is the venue element of the crime. See State v. Rivera, 42 Kan. App. 2d 1005, 1008-10, 219 P.3d 1231 (2009), rev. denied 290 Kan. 1102 (2010) (noting that venue is not strictly an element of the crime as defined by statute).
Although Womelsdorf did not raise the issue of venue to the district court, this court may address the issue for the first time on appeal. In State v. McElroy, 281 Kan. 256, 264, 130 P.3d 100 (2006), the Kansas Supreme Court stated:
“We note that the defendant’s failure to object to venue at trial is irrelevant because venue is a matter of jurisdiction. Lack of jurisdiction is not a waivable defense and may be raised for the first time on appeal. [Citations omitted.] Although venue is a question of fact to be determined by the jury, the existence of jurisdiction is a question of law over which this court’s scope of review is unlimited. [Citations omitted.]”
As stated above, the jury was instructed that to establish the charge of fraudulent insurance act the State needed to prove that the act occurred on or about October 22, 2009, in Anderson County, Kansas. Womelsdorf contends that because “the gravamen of this crime is the presentation of a written [insurance] statement,” venue is proper only in the county in which the fraudulent insurance statement was completed and submitted. The evidence regarding the fraudulent insurance statement consisted of the testimony of Renz, the property claims adjuster for Farm Bureau, and the sworn proof of loss statement executed by Womelsdorf. Renz testified that Womelsdorf completed and submitted the sworn proof of loss statement in his office in Olathe, Kansas. The sworn statement was signed by Womelsdorf and stated that the loss “did not originate by any act, design or procurement on the part of the insured, or this affiant.” Based on the evidence, Womelsdorf argues that the proper venue for the offense of committing a fraudulent insurance act was only in Johnson County and not Anderson County.
Under K.S.A. 22-2602, “[e]xcept as otherwise provided by law, the prosecution shall be in the county where the crime was committed.” However, K.S.A. 22-2603 provides: “Where two or more acts are requisite to the commission of any crime and such acts occur in different counties the prosecution may be in any county in which any of such acts occur.” The State argues that the arson was requisite to the commission of the fraudulent insurance act; without the arson, Womelsdorf s statements in the sworn proof of loss were not fraudulent. Therefore, because the arson occurred in Anderson County, the State argues that venue was proper in Anderson County.
Our Supreme Court addressed a similar venue issue in State v. Boorigie, 273 Kan. 18, 41 P.3d 764 (2002). In Boorigie, the defendant’s wife was found dead in Montgomery County, and the defendant was arrested and charged in that county with first-degree murder and other felony offenses. While awaiting trial, the defendant was held in jails in Montgomery County, Linn County, and Elk County. Two inmates at the Elk County jail later testified that the defendant offered them each $50,000 to find someone to confess to the murder. A corrections officer also testified that he met with the defendant in Wilson County, and the defendant offered him $10,000 to find someone to confess to the murder. As a result of these conversations, the defendant was also charged and convicted in Montgomery County with three counts of criminal solicitation based on the testimony of the two inmates and the corrections officer.
On appeal, the defendant contended that venue for the three counts of criminal solicitation was in Elk and Wilson Counties because the acts of solicitation occurred only in those counties; therefore, the charges were improperly filed in Montgomery County and the district court did not have jurisdiction to convict him of the charges. Our Supreme Court disagreed and determined that under K.S.A. 22-2603, the first-degree murder charge in Montgomery County was requisite to the criminal solicitation that occurred in Elk and Wilson Counties; thus, venue for the criminal solicitation charges was proper in Montgomery County. 273 Kan. at 23-25. After citing other prior cases in which crimes in one county were requisite to crimes committed in another county, the court stated:
“Similarly, in this case, Montgomery County was the county where the defendant faced tire original charges and it was the place in which the crimes the defendant solicited false testimony for were committed.... [T]he subsequent criminal charges were a direct outgrowth of the original charges committed in the county ultimately exercising jurisdiction to try the defendant!]. . . . Boorigie’s efforts to find someone to falsely testify were for the sole purpose of avoiding prosecution in Montgomery County. . . . [Considering the direct link between the Montgomery County criminal charges and the crimes committed in Elk and Wilson Counties, it is logical that Montgomery County was a proper venue for the prosecution of the defendant’s solicitation for false testimony” 273 Kan. at 24-25.
Similarly, Anderson County is where Womelsdorf faced the original arson charge. The insurance statement submitted by Womelsdorf stemmed from the fire that occurred in Anderson County. As the State argues, if the fire was not arson, the sworn insurance statement was not fraudulent; thus, without the arson in Anderson County, the insurance claim in Johnson County was not criminal. Stated differently, the arson in Anderson County was requisite to the fraudulent insurance act in Johnson County. Under K.S.A. 22- 2603 and the rationale of Boorigie, venue was proper in Anderson County.
Response to Jury Question During Deliberations
Next, Womelsdorf claims die district court committed reversible error when in response to a jury question submitted during deliberations, the district court responded in writing rather than calling the jury into the courtroom to communicate the answer. During deliberations, the jury sent a note to the judge that stated: ‘We the jury would like to obtain a written transcript of the Womelsdorf interview conducted by Jeff Hupp and Vernon Valentine on 9/9/ 09 at [Anderson County Hospital]” and “[w]e would like to see a diagram of the home layout as well.” The judge read the requests on the record, in the courtroom, and the judge and both counsel discussed how to respond to the questions. Womelsdorf does not contend that she was not present in the courtroom for this discussion. Both counsel acknowledged that a transcript of the interview was not available and that a diagram of the residence had not been admitted into evidence.
The judge suggested that the appropriate response was to inform the jury that the requested documents were not available and that the juiy must consider only the evidence admitted during the trial. Womelsdorf s counsel replied, “That’s what I would prefer to do.” The judge prepared a written answer to the juiy question that stated: “A transcript of the Womelsdorf interview and a diagram of the home [are] not available. You must consider only the evidence admitted during the trial.” The judge asked if either party had a problem with the answer, and Womelsdorf s counsel stated, “That’s fine.” The bailiff then delivered the written answer to the jury in the jury room. Neither party objected to the procedure followed by the district court in responding to the jury question.
Womelsdorf now asserts that the district court’s procedure of sending a written response to the juiy question was contrary to K.S.A. 22-3420(3) and violated numerous constitutional rights. Moreover, Womelsdorf asserts that responding to the jury’s question in writing could not be harmless because it was structural error and the cumulative effect of the error denied her a fair trial and requires this court to reverse her convictions. The State argues that because Womelsdorf did not raise these issues before the district court, she may not raise them for the first time on appeal. In the alternative, the State argues that the district court’s procedure of sending a written response to the jury question was not erroneous and, even if it was error, it was harmless beyond a reasonable doubt.
Resolution of this issue requires statutory and constitutional interpretation. This presents a question of law over which appellate courts have unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
As a threshold matter, the State correctly asserts that Womelsdorf is raising this issue for the first time on appeal. Womelsdorf did not object to the district court’s written response to the jury question, nor did she challenge the district court’s procedure in responding to the question in writing rather than calling the jury into the courtroom to communicate the answer. Generally, issues not raised before the district court cannot be raised on appeal. State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). There are exceptions to this general rule, but Womelsdorf does not argue that any exceptions apply. Even trial errors affecting constitutional rights may be waived in the absence of a proper, timely objection. See State v. Gant, 288 Kan. 76, 82, 201 P.3d 673 (2009).
Although Womelsdorf arguably failed to preserve this issue for appeal, we note that the Kansas Supreme Court has previously addressed an identical issue for the first time on appeal in State v. Bell, 266 Kan. 896, 918-20, 975 P.2d 239, cert. denied 528 U.S. 905 (1999). In Bell, tire jury sent a note to the district judge during deliberations asking for further information about the jury instructions. The district court consulted with both attorneys, but the record on appeal did not show that the defendant was present during the discussion, nor did it show that he voluntarily waived his right to be present. After hearing the attorneys’ positions, the district court prepared a written answer to the question, which was delivered to the jury outside the courtroom. Although the defendant objected to the substance of the district court’s answer to the jury question, the defendant did not object to the procedure fol lowed by the district court in responding to the question. But on appeal, the defendant argued the district court erred by responding to the jury question outside the presence of the defendant.
The Bell court addressed the defendant’s argument and determined that the procedure adopted by the district court in responding to the jury question was contrary to K.S.A. 22-3420(3) and violated the defendant’s constitutional right to be present at every critical stage of the trial. However, the Supreme Court noted that the district court’s response to the jury question was an accurate statement of the law and concluded that the error was harmless. 266 Kan. at 919-20; see also State v. Brown, 272 Kan. 809, 812-13, 37 P.3d 31 (2001) (identical issue addressed for the first time on appeal); State a. Coyote, 268 Kan. 726, 731-35, 1 P.3d 836 (2000) (same result). Because our Supreme Court has previously addressed this issue for the first time on appeal, we will address the merits of Womelsdorf s claim. But see State v. Groschang, 272 Kan. 652, 672-73, 36 P.3d 231 (2001) (time-honored rule that an issue not raised in district court may not be raised for the first time on appeal applies to jury requests under K.S.A. 22-3420[3]).
Womelsdorf argues that the district court’s procedure of submitting a written answer to the jury question was contrary to K.S.A. 22-3420(3), which provides:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to tire prosecuting attorney.”
In Bell, our Supreme Court stated:
“The correct procedure for a trial court to follow when answering a question from a deliberating jury is set forth in K.S.A. 22-3420(3). [Citation omitted.] K.S .A. 22-3420(3) requires that once the jury has begun deliberations, any questions from the jury concerning tire law or evidence pertaining to the case must be answered in open court in the defendant’s presence, unless the defendant is absent voluntarily. [Citation omitted.]
“K.S.A. 1998 Supp. 22-3405, as well as the Sixth Amendment’s Confrontation Clause and the Due Process Clause of die Fourteenth Amendment, require the defendant’s presence at every critical stage of the trial. [Citations omitted.] This includes all times when the jury is present in tire courtroom and whenever the trial court communicates with the juiy. [Citation omitted.]” 266 Kan. at 919-20.
Bell is distinguishable from the facts herein. In Bell, the defendant was not present when the district court consulted with the attorneys and formulated a response to the jury question. Here, Womelsdorf does not contend that she was not present in the courtroom for this discussion. Womelsdorf s only complaint is that the jury was not ushered back into the courtroom to hear the district court’s response to the question in the defendant’s presence. Nevertheless, Bell states that a question from the jury during deliberations “must be answered in open court in the defendant’s presence” and that the defendant must be present “whenever the trial court communicates with the juiy.” See also State v. Murdock, 286 Kan. 661, 683, 187 P.3d 1267 (2008) (quoting language from Bell); Brown, 272 Kan. at 812 (same language); Coyote, 268 Kan. at 732 (same language).
Under the Kansas Supreme Court’s interpretation of K.S.A. 22-3420(3), once the jury has begun deliberations, any questions from the jury concerning the law or evidence pertaining to the case must be answered in open court in the defendant’s presence, unless the defendant is absent voluntarily. The best procedure for answering a juiy question during deliberations is for the district court to bring the jury into the courtroom and provide the answer in the defendant’s presence. Here, the district court failed to follow this procedure. But even if Womelsdorf is correct in asserting that the district court’s procedure in responding to the jury question violated K.S.A. 22-3420(3), our Supreme Court in Bell determined that such a violation is subject to harmless error analysis. Under the harmless error standard of K.S.A. 60-261, the test is whether the error affected a party’s substantial rights; in other words, the question is whether the error affected the outcome of the trial. State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied February 21,2012. For a constitutional error, a court must find beyond a reasonable doubt that there was no impact on the trial’s outcome. In other words, the court must find there is no reasonable possibility that the error contributed to the verdict. 292 Kan. at 568-69.
Here, there was no reasonable possibility that the error, if one occurred, contributed to the verdict. The district court’s response to the jury question did not misstate the law or the evidence. Instead, the answer merely informed the jury that the requested documents were not available and the juiy must consider only the evidence admitted during the trial. Essentially, the district court’s response restated an instruction that initially had been provided to the jury. The answer did not provide any additional information which could have changed the jury’s verdict. Furthermore, the answer did not place undue emphasis on whether the jury should find Womelsdorf guilty or not guilty. We conclude beyond a reasonable doubt that the district court’s procedure of submitting the answer in written form rather than calling the jury into the courtroom had no impact on the outcome of the trial. Under the facts of this case, any error by the district court in not following the procedure set forth in K.S.A. 22-3420(3) was harmless.
Next, Womelsdorf argues that her fundamental right to an impartial judge was violated by sending the written answer to the jury. According to Womelsdorf, the communication between the judge and jury was not complete until the jury received the written answer to its question. If no judge was present when the jury received the written answer, tiren no impartial judge was present, and Womelsdorf argues that this procedure violated her right to an impartial judge under the Fourteenth Amendment to the United States Constitution. See Ward v. Village of Monroeville, 409 U.S. 57, 59-60, 93 S. Ct. 80, 34 L. Ed. 2d 267 (1972) (detailing the right to an impartial judge). Womelsdorf correctly states that the lack of an impartial judge is considered a structural error and is therefore not subject to the harmless error rule. Arizona v. Fulminante, 499 U.S. 279, 308 & n.8, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991).
Womelsdorf compares the instant case to State v. Brown, 362 N.J. Super. 180, 827 A.2d 346 (2003). During the jury’s deliberations in Brown, the jurors requested a readback of the victim’s testimony. Although the defendant objected, the district judge ordered that the readback occur in the jury room, with counsel present, but without the judge or the defendant present. Moreover, prior to the readback, the district judge went into the juiy room with die jury but outside the presence of counsel and the defendant and instructed the jurors that they could take notes on the readback but not to discuss the readback in front of counsel.
On appeal, the Superior Court of New Jersey, Appellate Division, held that the readback of testimony was a “critical stage of the criminal proceedings”; that a defendant has a right to be present; and that the readback must be conducted in open court, on the record, and under the supervision of the presiding judge. 362 N.J. Super. at 182, 188-89. The court stated that it found the read-back to be a critical stage of the proceedings because “[i]t is furnishing [jurors] with information they need to decide the case.” 362 N.J. Super. at 188-89. The court concluded that the district court denied the defendant his right to be present at the critical stage and, by barring the public, also denied the defendant his right to a public trial. 362 N.J. Super. at 189. Accordingly, the court reversed the defendant’s convictions and remanded for a new trial. 362 N.J. Super. at 189-90.
The result in Brown was based primarily on violations of the defendant’s constitutional right to be present at each critical stage of the trial and also the right to a public trial, rather than on the defendant’s constitutional right to an impartial judge. Moreover, the facts of Brown are clearly distinguishable from Womelsdorf s case. The Brown court determined that the readback was a critical stage of the proceeding because it furnished the jurors with information they needed to decide the case. Here, the written answer to the jury denied it additional information it was seeking and reminded the jury to consider only the evidence admitted during trial. As the State points out, there is a distinct difference between the lengthy process of a readback, which also necessarily involves the court reporter, and the process of dehvering a short written answer to a jury question which does not provide additional information. Under the facts of this case, we conclude that the district court’s procedure in responding to the jury question in writing did not violate Womelsdorf s constitutional right to an impartial judge.
Womelsdorf also argues that the district court’s procedure in responding to the juiy question in writing violated her right to a public trial as guaranteed by the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. Womelsdorf s argument is again based on her contention that the communication with the jury was not effective until the jury received the written answer in the jury room. Womelsdorf argues that when “the court’s communication with the jury occurs in the jury room, a place where the public cannot go, a critical stage of the trial is occurring without any opportunity of observation by members of the public.” Womelsdorf argues that a violation of her right to a public trial constitutes structural error and is not subject to harmless error analysis. See Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984) (denial of constitutional right to public trial constitutes structural error).
As stated above, the judge read the juiy questions on the record, in the courtroom, and the judge and both counsel discussed how to respond to the questions. Womelsdorf does not contend that she was not present in the courtroom for that discussion or that the courtroom was not open to the public when the discussion took place. Nothing about the district court’s written response to the jury question, which is now available to the public as part of the court file, was hidden from public view. Obviously, the public was not present when the bailiff delivered the written response to the jury room, but jury deliberations are never open to the public. Under tire facts of this case, we conclude that the district court’s procedure in responding to the jury question in writing did not violate Womelsdorf s constitutional right to a public trial.
Finally, as part of this issue, Womelsdorf argues that this court should reverse due to cumulative error. Even if an individual error is insufficient to support reversal, the cumulative effect of multiple errors may be so great as to require reversal. The test is “ ‘whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.’ [Citation omitted.]” State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683 (2010). But at best, Womelsdorf has established a statutory violation in the procedure followed by die district court in responding to the juiy question. However, the test for cumulative error is whether the totality of circumstances substantially prejudiced tire defendant and denied the defendant a fair trial. As discussed above, Womelsdorf was not prejudiced by the district court’s actions. Therefore, her cumulative error claim fails.
Procedure for Accepting Jury Verdict
Next, Womelsdorf claims the district court committed reversible error when it accepted the jury’s verdict without inquiring into the accuracy of the verdict. Womelsdorf argues that the procedure followed by the district court in accepting the juiy verdict was contrary to K.S.A. 22-3421. The State responds that Womelsdorf failed to object and therefore cannot raise the issue on appeal. The State also argues that Womelsdorf s failure to establish prejudice means that any error by the district court was harmless. Finally, the State alleges that Womelsdorf waived her right to challenge the unanimity of the verdict when she declined to poll the jury.
Interpretation of a statute is a question of law over which appellate courts have unlimited review. Arnett, 290 Kan. at 47. Furthermore, appellate courts exercise de novo review over issues of jury unanimity. State v. Dayhuff, 37 Kan. App. 2d 779, 784, 158 P.3d 330 (2007).
Here, when the jury delivered its verdict, the following exchange occurred:
“THE COURT: . . . It’s my understanding the jury has reached a verdict.
“[Juiy Foreman]: Yes, Your Plonor, we have. The verdict was by all 12 of the jurors unanimously.
“THE COURT: Okay. If you can hand the verdict forms to the bailiff.
“THE COURT: The verdict form reads as follows: Verdict Count 1 — We the jury, find the defendant, Debra Kay Womelsdorf, guilty of the crime of arson of a home, automobile and contents of a home.’ Signed presiding juror.
“Verdict Count 2. We the juiy, find the defendant, Debra Kay Womelsdorf, guilty of tire crime of fraudulent insurance act.’ Again signed by the presiding juror.
“Does either party wish to have the juiy polled regarding die verdict?
“MR. LOWRY [defense counsel]: No, Your Honor.
“MR. CAMPBELL [prosecutor]: No, Your Honor.” (Emphasis added.)
K.S.A. 22-3421 sets forth the procedure for the district court to accept a jury verdict in a criminal case and provides:
“The verdict shall be written, signed by the presiding juror and read by the clerk to the jury, and the inquiry made whether it is the jury’s verdict. If any juror disagrees, the jury must be sent out again; but if no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete and the jury discharged from the case. If the verdict is defective in form only, it may be corrected by tire court, with the assent of the jury, before it is discharged.” (Emphasis added.)
K.S.A. 22-3421 requires a trial judge to follow two separate steps in accepting a jury verdict. First, the trial judge shall inquire whether the verdict read in open court is the jury’s verdict. Second, the trial judge must poll the jury if either party requests that the jury be polled. At Womelsdorf s trial, the judge complied with the second step of K.S.A. 22-3421 by asking both counsel if they desired to have the jury polled. However, the judge failed to satisfy the first step by inquiring whether the verdict read in open court was the jury’s verdict. Womelsdorf argues that the trial judge’s failure to fully comply with the statute constituted reversible error.
Womelsdorf admits that her trial counsel did not object to tire district court’s failure to inquire into the accuracy of the verdict. As she points out, however, there are exceptions to tire general rule that an issue not raised at trial may not be raised on appeal. These exceptions include where the newly asserted theory involves only a question of law arising on proven or admitted facts and is finally determinative of the case and when consideration of the theory is necessary to serve the ends of justice or prevent a denial of fundamental rights. See State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010). Womelsdorf asserts that both exceptions apply here because the facts are not in dispute, the issue may be finally determinative of the case, and the issue is a question of law pertaining to the fundamental right to a unanimous juiy verdict.
The State disagrees, citing State v. Holt, 285 Kan. 760, 766-67, 175 P.3d 239 (2008), in which our Supreme Court refused to consider on the merits a jury-polling challenge that allegedly violated K.S.A. 22-3421. The Holt court noted that the right to a unanimous jury is a statutory right, not a constitutional right. 285 Kan. at 766. The court also noted the difficulties an appellate court faces when a defendant fails to raise concerns about the verdict at the time of the verdict, i.e., it prevents a district court from “having any chance to cure any alleged defect in the polling before the jury [is] discharged.” 285 Kan. at 768-69. The defendant in Holt asked our Supreme Court to consider his argument for the first time on appeal to serve the ends of justice, as Womelsdorf asks here. The Holt court declined to do so because the defendant “failed to show that the polling procedure . . . actually harmed him” and there was no evidence suggesting that the defendant received anything less than a unanimous vei'dict. 285 Kan. at 770. The court concluded by stating that because the defendant “did not timely object to the polling, he did not preserve this issue for appeal.” 285 Kan. at 771.
Womelsdorf compares this case to State v. Johnson, 40 Kan. App. 2d 1059, 198 P.3d 769 (2008), in which this court considered an identical issue for the first time on appeal and found that the district court’s failure to inquire into the accuracy of the jury verdict constituted reversible error. In Johnson, this court acknowledged our Supreme Court’s holding in Holt and distinguished the case before it by noting that the record on appeal in Johnson called into question the unanimity of the jury through posttrial affidavits from jurors stating they did not feel the verdict was correct and unanimous. 40 Kan. App. 2d at 1079. Under the circumstances in Johnson, this court found that it could not say that the defendant was not prejudiced by the district court’s failure to inquire into the accuracy of the verdict as required by K.S.A. 22-3421; therefore, the failure was reversible error. 40 Kan. App. 2d at 1081.
The facts before this court are more similar to those in Holt than in Johnson. Here, the district court instructed the jury that the verdict must be unanimous. As in Holt, Womelsdorf has failed to show that the district court’s failure to follow the statutory requirements of K.S.A. 22-3421 actually harmed her. Additionally, like the defendant in Holt and unlike the defendant in Johnson, Womelsdorf does not point to any part of the record on appeal that calls into question the unanimity of the verdict or the impartiality of the jury. In fact, when delivering Womelsdorfs verdict to the district court, the jury foreperson stated, “The verdict was by all 12 of the jurors unanimously.” Although Womelsdorf correctly argues that the jury foreperson’s statement does not satisfy the statutoiy re quirement that the district court must inquire into the accuracy of die verdict, the statement is strong evidence that the jury was unanimous in its verdict.
Although the precise issue in Holt was not the same as the issue before this court, the Supreme Court’s language in that opinion provides this court with some authority to reject Womelsdorfs claim simply because she is raising the issue for the first time on appeal. Womelsdorf did not object when the district court failed to inquire about the jury’s verdicts. Had Womelsdorf objected to the procedure, the district court certainly could have corrected its error. There is no evidence in the record suggesting that Womelsdorf received anything less than a unanimous verdict, and in fact, the record suggests the opposite.
Finally, we note that the propriety of addressing this issue for the first time on appeal has recently been reexamined by this court in State v. Dunlap, 46 Kan. App. 2d 924, 934, 266 P.3d 1242 (2011), pet. for rev. filed December 30, 2011 (pending). In Dunlap, this court held:
“[Wjhen tlie trial judge in a criminal case explicitly asks the parties if they want to have the jury polled, which would accomplish the same purposes as having the trial judge inquire into the accuracy of the verdict, and the defendant declines the request for polling, the appellate court should not consider a challenge to the procedure for accepting the verdict for the first time on appeal based on concepts of waiver or invited error.”
Here, unlike in Johnson, the district court explicitly asked the parties if they wanted to have the jury polled and Womelsdorf s counsel said no. Polling the jury would have achieved the purpose of ensuring Womelsdorf s statutory right to a unanimous verdict. Likewise, polling the jury would have safeguarded the concept of finality with respect to the jury verdict. By polling the jury, each juror would have been given the opportunity to express disagreement with or dissent from the verdict in open court. Because Womelsdorf declined the district court’s explicit request to have the jury polled, which would have accomplished the same purposes as having the district court inquire into the accuracy of the verdict, we conclude she is not allowed to challenge the procedure for accepting the verdict for the first time on appeal. Because we are not reaching the merits of Womelsdorf s claim, we will not address the State’s argument that any error was harmless.
Jury Instruction on Reasonable Doubt
Finally, Womelsdorf claims the district court committed reversible error by improperly instructing the jury on reasonable doubt. Womelsdorf did not raise this issue to the district court. Generally, issues not raised before the district court cannot be raised on appeal. State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). There are exceptions to this general rule, however, including when consideration of the theory is necessary to serve the ends of justice or to prevent a denial of fundamental rights. Dukes, 290 Kan. at 488. If the reasonable doubt instruction unconstitutionally diluted the State’s burden of proof, the instruction impacted Womelsdorf s due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and consideration of her argument is necessary to prevent a denial of those rights. See Sullivan v. Louisiana, 508 U.S. 275, 277-82, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993) (denial of tire right to a jury trial by giving a defective reasonable doubt instruction constituted structural error requiring reversal of defendant’s conviction).
Jury instructions in any particular case are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct and the jury could not reasonably have been misled by them, the instructions will be approved on appeal. State v. Hall, 292 Kan. 841, 857, 257 P.3d 272 (2011). Where a defendant challenges a jury instruction on appeal but did not object at trial, an appellate court reviews the issue under the clearly erroneous standard. See K.S.A. 22-3414(3); State v. Adams, 292 Kan. 60, 75, 253 P.3d 5 (2011). “ Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the juiy would have rendered a different verdict if the error had not occurred.’ [Citations omitted.]” 292 Kan. at 75.
The jury instruction to which Womelsdorf now objects stated:
“The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to die truth of any of die claims required to be proved by the State, you must find the defendant not guilty; if you have no reasonable doubt as to the truth of any of die claims required to be proved by the State, you should find the defendant guilty. Your verdict must be unanimous.”
Womelsdorf s challenge to the jury instruction on reasonable doubt stems from the recent filing of an unpublished opinion by this court in Miller v. State, No. 103,915, 2012 WL 401601 (Kan. App. 2012) (unpublished opinion), pet. for rev. filed February 22, 2012. In Miller, the movant appealed the denial of a K.S.A. 60-1507 motion claiming ineffective assistance of counsel. Among other issues, Miller claimed the lawyer who handled his direct appeal was constitutionally deficient in failing to raise an issue based on the reasonable doubt jury instruction given at his trial. The jury instruction read:
“ ‘The test you must use in determining whether the defendant is guilty or not guilty is this: If you have a reasonable doubt as to the truth of each of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.’ ” 2012 WL 401601, at “2.
The instruction in Miller followed the Kansas pattern juiy instruction, PIK Crim. 3d 52.02, except that it transposed the words “each” and “any.” 2012 WL 401601, at *2. As the Miller court stated, the switch substantially changed the meaning of the juiy instruction so that it “tells jurors they should acquit Miller only if they have reasonable doubt about each claim or element the State must prove. And it tells them they should convict Miller if they hold no reasonable doubt as to any of those claims.” 2012 WL 401601, at *2. The Miller court found that this was a clear misstatement of the law and directly affected a fundamental constitutional right. 2012 WL 401601, at *5. Ultimately, the Miller court reversed the denial of the K.S.A. 60-1507 motion and remanded with directions to give the movant a new trial. 2012 WL 401601, at *9.
Womelsdorf argues that the same rationale applies here and her convictions must be reversed based on the reasonable doubt instruction given to the jury at her trial. However, Womelsdorf s reasonable doubt jury instruction was not identical to the juiy instruction given by the district court in Miller. While the instruction in Miller transposed the words “any” and “each,” Womelsdorf s instruction used the word “any” in both places, giving the test as follows:
“If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty; if you have no reasonable doubt as to tire truth of any of the claims required to be proved by die State, you should find the defendant guilty.”
The Miller court addressed this situation in dicta because the State argued there that the district court orally instructed the juiy using the word “any” in both places. 2012 WL 401601, at *6. The Miller court was troubled by this version of the reasonable doubt instruction, stating that the word “any” may mean “any one” or “eveiy,” depending on the context, and the court was concerned about ambiguity and possible confusion among the jurors. 2012 WL 401601, at *6. The Miller court concluded that even if the district court orally instructed the jury using the word “any” in both places, it would not have cured the constitutional defect in the written instruction, which plainly misstated tire law. 2012 WL 401601, at * 6.
However, the Miller court did not cite to or discuss State v. Beck, 32 Kan. App. 2d 784, 88 P.3d 1233, rev. denied 278 Kan. 847 (2004), which had considered and rejected a challenge to a reasonable doubt jury instruction that used “any” in both places. In Beck, the final sentence in the reasonable doubt instruction stated: “If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.) At the time of Beck’s trial, this language was recommended in PIK Crim. 3d 52.02. See 32 Kan. App. 2d at 785. Beck challenged the final sentence of the instruction arguing that “the use of the word ‘any’ in this context allows for a conviction even if there are insufficient facts to support each element of the crime.” 32 Kan. App. 2d at 787. The Beck court rejected this argument and stated:
“Again, Beck is focusing on one word of the instruction in isolation from its context. The word ‘any is used consistently in the instruction. The sentence immediately preceding the language Beck finds objectionable states: Tf you have a reasonable doubt as to the truth of any of tire claims required to be proved by the State, you must find the defendant not guilty.’ (Emphasis added.) We reject Beck’s argument that the word ‘any,’ as used in this context, could somehow create ambiguity or result in Beck being convicted if only one element of the crime is proven. Furthermore, Instruction No. 11, listing the elements of the crime of aggravated escape from custody, contains the language: ‘To establish this charge, each of the following claims must be proved ’ (Emphasis added.) This language negates any potential confusion that may have been caused by the use of the word ‘any in Instruction No. 6.” 32 Kan. App. 2d at 787-88.
Womelsdorf s case is identical to Beck and clearly distinguishable from Miller. The Beck court rejected the defendant’s argument that the use of the word “any” in the final sentence of the instruction could somehow create ambiguity or result in the defendant being convicted if only one element of the crime was proven by the State. The Beck court emphasized that the elements instruction for the crime charged in that case stated: “To establish this charge, each of the following claims must be proved . . . .” (Emphasis added.) 32 Kan. App. 2d at 787-88. Likewise, here, the juiy instruction on arson stated: “To establish this charge, each of the following claims must be proved . . . .” (Emphasis added.) The jury instructions on the lesser included offense of arson of an automobile and on fraudulent insurance act also contained this language.
In Miller, the elements instructions required the jury to find each of the following claims proved as well, but the Miller court found that there was tension between this requirement and the reasonable doubt jury instruction’s language stating that, in order to acquit, the jury must find “reasonable doubt as to the truth of each of the claims required to be proved by the State.” 2012 WL 401601, at °5. But that language was not present in Womelsdorf s instruction; rather, her instruction told the jury that, in order to acquit, it must find “reasonable doubt as to the truth of any of the claims required to be proved by the State.” In this way, Womelsdorf s case is again distinguishable from Miller.
In 2005, following this court’s decision in Beck, the PIK committee modified the reasonable doubt instruction at PIK Crim. 3d 52.02. The current approved instruction provides the following test:
“If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to tire truth of each of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.)
The current approved version of PIK Crim. 3d 52.02 provides the most accurate test for reasonable doubt, and the current instruction is an improvement on the jury instruction given at Womelsdorf s trial. Nonetheless, the language of the jury instruction on reasonable doubt given at Womelsdorf s trial was identical to the instruction recommended in PIK Crim. 3d 52.02 prior to 2005. In fact, the Kansas Supreme Court had previously held that this version of PIK Crim. 3d 52.02 accurately reflected the law of this state and properly advised the jury in a criminal case of tire burden of proof, the presumption of innocence, and reasonable doubt. See State v. Clark, 261 Kan. 460, 474-75, 931 P.2d 664 (1997).
Applying the reasoning in Beck and considering the jury instructions given at Womelsdorf s trial as a whole, rather than isolating any one instruction, we find that the instructions were substantially correct and the jury could not reasonably have been misled by them. The reasonable doubt instruction given by the district court at Womelsdorf s trial was not a clear misstatement of the law, as was the situation in Miller. We conclude that the reasonable doubt instruction provided in Womelsdorf s case, while not the best practice, was not clear error. Accordingly, Womelsdorf is not entitled to a new trial based on tire jury instructions.
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McAnany, J.:
On June 2, 2006, Harold Schmidt and Marie Kuhn were involved in an automobile accident. On May 30, 2008, Kuhn filed suit against Schmidt, alleging injuries and damages resulting from Schmidt’s negligence in the accident. Kuhn requested that the sheriff serve process on Schmidt at his apartment at an assisted living residential community where he resided. On June 2, 2008, Deputy Sheriff Scott Perkins went to Schmidt’s apartment and knocked on the door. When there was no response, Perkins left the petition and summons with the receptionist at tire front desk of the residential community. The receptionist said she would see that Schmidt received the papers. She apparently set the papers aside for Schmidt in an open box at the residential community, in an area separate from Schmidt’s apartment. The following day Perkins filed his return on service of summons, stating that he had served Schmidt on June 2, 2008, by residential service.
Schmidt filed his answer on June 20, 2008, asserting that service of process was defective. The parties proceeded with discovery, but Kuhn made no inquiry into the nature of the claimed defect in service.
On April 27,2009, Schmidt moved to dismiss for lack of personal jurisdiction due to insufficient service of process. The district court granted Schmidt’s motion on May 18, 2009. Kuhn moved to set aside the order of dismissal. After a hearing on Kuhn’s motion, the district court set aside the dismissal on June 29, 2009.
On August 17, 2009, Kuhn filed an alias summons and, on August 19, 2009, obtained personal service on Schmidt. Schmidt then filed his answer asserting that the action was barred by the 2-year statute of limitations.
Schmidt then moved for summaiy judgment based on his statute of limitations defense. He argued that his original answer put Kuhn on notice of the lack of personal jurisdiction over him and she took no action to correct the service defect within 90 days of the original date of service. Thus, the later service obtained on August 19,2009, did not relate back to the date suit was filed. As a result, the suit was deemed commenced on August 19, 2009, the date service was perfected, which was long after the 2-year statute of limitation had expired.
The district court granted Schmidt’s summary judgment motion. In doing so, the court found that the savings provisions of K.S.A. 60-203(b) did not apply because Kuhn was on notice of the defect in service when Schmidt filed his first answer but did nothing about it. When Schmidt filed his answer on June 20, 2008, Kuhn had 69 days left to perfect valid service on Schmidt, but Kuhn made no timely effort to do so. Kuhn appeals.
On appeal Kuhn contends that the original June 2, 2008, service on Schmidt was sufficient because it substantially complied with Kansas statutes on service of process. In the alternative, Kuhn argues that K.S.A. 60-203(b) applies to save Kuhn’s negligence action because she served Schmidt with an alias summons within 90 days of the district court adjudicating Kuhn’s service to be invalid.
We need not recount the standards for summary judgment and for appellate review because they are well known to the parties and are found in innumerable cases, including Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011) (quoting Warner v. Stover, 283 Kan. 453, 455-56, 153 P.3d 1245 [2007]).
A civil action is commenced with the filing of the petition if the plaintiff obtains service of process on the defendant, or makes the first publication for service by publication, within 90 days thereafter, unless the 90-day period is extended for 30 days upon a showing of good cause. Otherwise, the date the action is commenced is the date that the defendant is served. K.S.A. 60-203(a). Pursuant to K.S.A. 60-513, Kuhn had 2 years from the date of the accident, or until June 2, 2008, to commence her negligence action against Schmidt. Kuhn filed suit on May 30, 2008, so she had 90 days thereafter within which to perfect service in order for service to relate back to the date suit was filed.
Here, Kuhn attempted to serve Schmidt through personal or residential service. K.S.A. 60-303(d)(l) provides that personal service “shall be made by delivering or offering to deliver a copy of the process and accompanying documents to the person to be served.” It is clear that there was no personal service. K.S.A. 60-303(d)(l) states that residential service shall be made “by leaving a copy of the process and petition or other document to be served, at the dwelling house or usual place of abode of the person to be served with someone of suitable age and discretion residing therein.” (Emphasis added.) It is equally clear that residential service was not accomplished. The receptionist who accepted the papers did not reside there.
But K.S.A. 60-204 provides that service of process may still be achieved through substantial compliance:
“In any method of serving process, substantial compliance therewith shall effect valid service of process if the court finds that, notwithstanding some irregularity or omission, the party served was made aware that an action or proceeding was pending in a specified court in which his or her status or property were subject to be affected.”
Kansas courts have interpreted substantial compliance to mean “compliance with respect to the essential matters necessary to assure every reasonable objective of the statute.” But “Kansas case law is clear that mere knowledge of pending litigation is not a substitute for valid service of process.” Fisher v. DeCarvalho, 45 Kan. App. 2d 1133, 1147, 260 P.3d 1218 (2011).
In Fisher, service of process was held defective when the plaintiff attempted to serve the defendant by means of certified mail at his business address. 45 Kan. App. 2d at 1147. The papers were received and signed for by an unknown person. The defendant filed an answer that set forth the affirmative defense of insufficient service of process. In finding that the plaintiff s method of service did not substantially comply with the Kansas statutes, the Fisher panel stated that the plaintiff “did not satisfy the most important objective of service of process, i.e., actual service upon” the defendant or his authorized agent. 45 Kan. App. 2d at 1147.
The Fisher court cited Haley v. Hershberger, 207 Kan. 459, 485 P.2d 1321 (1971), superseded by statute on other grounds as stated in Myers v. Board of Jackson County Comm’rs, 280 Kan. 869, 874, 127 P.3d 319 (2006); see Fisher, 45 Kan. App. 2d at 1141-43. In Haley, the Kansas Supreme Court held that “[l]eaving a copy of a petition and summons with the secretary of the defendant is not substantial compliance with any of the provisions mentioned for personal service. The secretary was not an authorized agent to receive service of process. [Citation omitted.]” 207 Kan. at 463.
In keeping with Fisher and Haley, Perkins leaving the summons and petition with the receptionist was not substantial compliance with the statutory requirements for proper service of process. Delivering the summons and petition to an unauthorized third party who promises to pass them to the defendant does not constitute proper service of process even if the defendant is subsequently notified of the suit.
• But Kuhn argues that K.S.A. 60-203(b) saves her claim from being barred by the statute of limitations. The statute provides:
“If service of process or first publication purports to have been made but is later adjudicated to have been invalid due to any irregularity in form or procedure or any defect in making service, die action shall nevertheless be deemed to have been commenced at the applicable time under subjection (a) if valid service is obtained or first publication is made within 90 days after that adjudication, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff.”
The district court found that Kuhn could not claim that she was unaware that Schmidt was contesting service and thus K.S.A. 60-203(b) was inapplicable.
In Grimmett v. Burke, 21 Kan. App. 2d 638, 647-48, 906 P.2d 156 (1995), rev. denied 259 Kan. 927 (1996), the court determined that the following factors must exist before K.S.A. 60-203(b) applies:
“(1) The original service must have ‘appeared’ to be valid and the returns by the sheriffs office or odier process servers must indicate that the service was valid. (2) The record should show that the plaintiff believed in good faith that his or her service was valid and relied oil that validity to his or her' detriment. (3) The plaintiff had no reason to believe the defendant was contesting service until after the statute of limitations had run, but had no opportunity to take steps to correct the defective service(Emphasis added.)
The Grimmett factors were adopted by our Supreme Court in Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 101-02, 106 P.3d 492 (2005). The court in Pieren-Abbott held that K.S.A. 60-203(b) was inapplicable when a plaintiff was “clearly informed that [tire defendant] was contesting service and could easily have served the [defendant] with summonses before the 90-day period in K.S.A. 60-203(a) had expired.” 279 Kan. at 102. We are bound to follow Pieren-Abbott. See Buchanan v. Overley, 39 Kan. App. 2d 171, 175-76, 178 P.3d 53, rev. denied 286 Kan. 1176 (2008).
Here, Schmidt’s June 20, 2008, answer raised the defense of insufficient service of process. Kuhn had 69 days thereafter within which to correct the defective service and have service of process on Schmidt relate back to the pre-statute-of-limitations filing of the petition. Kuhn failed to inquire into why Schmidt contested service of process before the 90-day relation-back period expired. Proper service of process was not accomplished until later. Accordingly, K.S.A. 60-203(b) was not available to Kuhn, and the service of process on Schmidt did not relate back to the filing of her petition. The district court correctly granted Schmidt’s summary judgment motion.
Affirmed.
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Green, J.:
In an appeal following a remand to the trial court, Russell and Paula Leffel challenge the trial court’s decision to affirm the denial of the Leffels’ application for a building permit by the City of Mission Hills Board of Zoning Appeals (BZA). The Leffels argue that the trial court applied an incorrect standard of review of the BZA’s decision, that the BZA did not properly follow this court’s mandate in its reconsideration of the application, and that the Leffels were denied due process in the reconsideration process. We disagree. Accordingly, we affirm.
The Leffels own a residence at 6408 Willow Lane in Mission Hills and proposed to build a new residence on a vacant lot, which they also owned, at 6400 Willow Lane. The architectural review board (ARB) approved amended construction designs on May 9, 2006, but the ARB’s approval was later reversed by the BZA on July 13, 2006.
The Leffels appealed, and the trial court reversed the BZA decision. The trial court concluded that the BZA’s reliance upon the majority of voiced public opinion about the proposed building project constituted an impermissible plebiscite. The trial court further found the BZA’s implementation of its standard of comparison between the proposed building project and surrounding structures to be unreasonably contradictory, confusing, and inconsistent. Finally, the trial court believed that the BZA had employed an improper de novo review of the ARB’s decision.
The City of Mission Hills appealed the trial court’s decision to this court. This court affirmed the trial court’s determination that the BZA had conducted an impermissible plebiscite, though acknowledging that consideration of neighboring property owners was a legitimate aspect of zoning decisions. Nevertheless, this court rejected the trial court’s other grounds for reversing tire BZA decision, noting the deference a court must give to the final agency action. Accordingly, this court reversed the trial court’s decision in part and remanded the case to the trial court with directions to remand the case to the BZA for reconsideration of the building application in light of the appellate court’s decision. Leffel v. City of Mission Hills, No. 99,336, unpublished opinion filed December 5, 2008 (Kan. App.) (Leffel I), slip op. at 4, 6-8, 11-15.
On remand, the BZA entertained suggestions regarding the procedure to be used in the reconsideration phrase. Pete Heaven, the BZA’s legal counsel, indicated that the reconsideration should be accomplished by review of the record without considering additional evidence. Doug McKenna, counsel for the Leffels, objected to a reconsideration based entirely on the previous record and requested the opportunity to present additional evidence and arguments. In discussing the scope of the remand, BZA Chairman Tom Roszak expressed a desire to receive input from the ARB as to the style and design aspects of the proposed building project and suggested that the BZA adopt a definition of “surrounding structures” that is consistent with the notice provisions, i.e., an area extending 500 feet from the proposed construction site. The other BZA members agreed. The BZA proposed to send the matter to the ARB for a limited consideration of the proposed project’s style and design conformity with structures within a 500-foot radius of the project. Courtney Christensen, the city administrator, asked whether the ARB’s review would be limited to the record, but Heaven suggested that the BZA could not dictate the procedure used by the ARB. The BZA unanimously voted to “remand this matter to the ARB for consideration of the surrounding structures in the 500-foot notice area in terms of style [and] design.”
The ARB issued a letter to the parties on June 23,2009, outlining the procedure the ARB planned to use in its review of the Leffels’ proposed building project. The ARB indicated that it had received 75 photographs by city staff members of homes within 500 feet of the proposed building project and that each board member was asked to individually view the 75 homes within the “surrounding structures” area and review the plans for the proposed building project before meeting in a quasi-judicial deliberative session on June 30, 2009. The ARB indicated that it would not receive arguments, evidence, or testimony at the June 30 meeting.
The Leffels responded with a letter objecting to the proposed procedure, arguing that the ARB should merely review the evidence in the record to determine whether its previous decision was limited to a comparison of structures within 500 feet of the proposed building project.
At the June 30 meeting, the ARB proposed to consider the question directed by the BZA in quasi-judicial deliberative session. The ARB indicated that it would consider the staff photographs. The Leffels requested that the ARB permit Drew Loboda, a former ARB member, to participate in the deliberative session and proffered photographs of homes with comments by Paula Leffel. The Leffels also indicated that Jim Scovell and the architect of the project, Bob Gould, were available for questions. The ARB indicated that it was considering no new evidence other than the photographs provided by the city staff members and observations by board members personally visiting the area.
On July 14, 2009, the ARB adopted a resolution recommending to the BZA that the proposed building project did not conform to the style and design of the surrounding structures, as that term was defined by the BZA. In adopting its resolution, the ARB specified that it had considered the application and plans originally approved by the ARB, staff reports and minutes of ARB and BZA meetings, and photographs of all residences within a 500-foot radius of the proposed building site. In addition, each ARB member personally viewed the proposed building site and all surrounding structures within 500 feet as identified in the address list provided by the city staff.
At the next meeting of the BZA, the Leffels objected to the ARB’s recommendation and urged the BZA not to consider the recommendation because the ARB went outside the evidence presented at the 2006 proceedings without providing the Leffels the opportunity to present new evidence to counter tire evidence prepared by Mission Hills. The BZA considered the ARB’s recommendation over the Leffels’ objection and affirmed its previous denial of the Leffels’ building application. The BZA’s resolution provided:
“RESOLVED, that upon reconsideration of the record in this matter, this Board affirms its original decision overturning the decision of the ARB to approve the proposed house. This affirmation is on die basis that the proposed house is not in conformity with the style and design of surrounding structures, and the decision of the ARB to approve was therefore not in accordance with the law and was not supported by the evidence. This decision is irrespective of the sentiments expressed by tiiose who made dieir positions known during the various hearings before die ARB and this Board in this matter.”
Afterwards, the trial court heard arguments regarding the BZA’s compliance with the appellate mandate and affirmed the BZA.
Was the Decision of the Board of Zoning Appeals Affirming the Denial of the Leffels’ Building Application Lawful and Reasonable?
Judicial review of a zoning board decision is limited to. determining if the zoning board acted unlawfully or unreasonably. A court does not substitute its judgment for that of the administrative body and may declare an action unreasonable only when the evidence clearly demonstrates that the action was arbitrarily taken without regard to the benefit or harm to the community at large, including ¿1 interested parties. The property owner appealing the zoning board’s decision bears the burden of overcoming, by a preponderance of the evidence, a presumption that the board acted reasonably. On appeal, the appellate court applies a similar standard without according deference to the conclusions of the trial court. See Zimmerman v. Board of Wabaunsee County Comm'rs, 289 Kan. 926, 944-45, 218 P.3d 400 (2009).
A. Presumption of Reasonableness.
As a preliminary matter, the Leffels contend that this court should extend no deference to the BZA in this appeal. First, the Leffels contend that the trial court applied an inappropriate standard of “good faith and fair play” rather than reasonableness. While the trial court may have employed imprecise language in stating the standard of deference the Leffels were required to overcome, the trial court applied the correct standard in evaluating the Leffels’ appeal from the BZA. As the Leffels concede, Kansas case law establishes a legal presumption that public officials act properly and administer acts within their authority regularly and lawfully. See Lewis v. City of South Hutchinson, 162 Kan. 104, Syl. ¶ 8, 174 P.2d 51 (1946); Manufacturing Co. v. Hayes, 98 Kan. 269, 270, 157 P. 1169 (1916). There is no principled reason to believe that a presumption of reasonableness does not encompass a presumption that the government officials acted fairly with good faith. The distinction attempted to be drawn by the Leffels possesses little merit.
Moreover, to the extent that the trial court applied the wrong presumption when evaluating the BZA’s decision, the error is harmless because this court conducts an independent review of the BZA’s conduct without deferring to the trial court’s conclusions. See Zimmerman, 289 Kan. at 944-45.
“Unless justice requires otherwise, no error in admitting or excluding evidence, or any other error by the court or a party, is ground for granting a new trial, for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights.” K.S.A. 2010 Supp. 60-261.
See also Drake v. Kansas Dept. of Revenue, 272 Kan. 231, 238, 32 P.3d 705 (2001) (error that does not prejudice the substantial rights of a party affords no basis for reversal and may be disregarded).
Second, the Leffels contend that the BZA’s decision in this matter should not be accorded deference because the BZA’s initial decision was adjudicated illegal by the trial court and this court in the first appeal. Accordingly, the BZA has lost its presumption of reasonableness.
The Leffels’ argument runs counter to the limited role the courts play in zoning decisions:
“ ‘[C]ommunities are entitled to decide for themselves how they shall be zoned or rezoned and that elected representatives from within the community are more likely tiran tire courts to be familiar with the pertinent facts and to reflect the community’s will. In this vein, appellate courts have frequently warned trial courts against substituting their judgment for that of a community’s elected representatives merely on the basis of their differing opinion as to what is the better policy in a given instance.’ ” Zimmennan, 289 Kan. at 949 (quoting 3 Rathkopf, Rezonings: Validity and Review § 40.8, pp. 40-16 to 40-17).
While the discussion in Zimmerman involved a different zoning question than the one presented by this case, the policy rationale provided in Zimmerman is equally applicable to the present case. The lawfulness of a zoning board’s actions should be closely scrutinized by the courts. See Owen Lumber Co. v. Chartrand, 283 Kan. 911, 915-16, 157 P.3d 1109 (2007) (an appellate court has unlimited review over questions of law). Yet, the reasonableness of a zoning board’s decision implicates fact and policy determinations that are not the province of the courts. See Zimmerman, 289 Kan. at 947-49.
The Leffels further attempt to argue that because the case was presented to the BZA on documents only, the court is in as good a position as the BZA to rule on the zoning question and, therefore, this court should not apply a presumption of reasonableness but should review the BZA’s decision for substantial competent evidence. The Leffels’ argument ignores the fact that many zoning decisions are made primarily upon documentary evidence rather tiran testimony. This circumstance does not diminish the fact that a zoning determination involves weighing facts and considering policies inherent to the community. These reasons are the basis for judicial deference to zoning board decisions. See Zimmerman, 289 Kan. at 947-49.
Finally, the Leffels’ argument regarding tire appropriate standard of deference for review of the BZA’s decision is mostly academic. The Leffels’ appellate issues may be broadly categorized into two complaints. First, tire Leffels contend that the BZA’s decision did not comply with this court’s mandate. Second, the Leffels argue that the procedure used by the ARB violated due process and later tainted the entire decision-making process on remand. Both of these claims involve questions of law over which appellate review is unlimited. Davenport Pastures v. Board of Morris County Comm'rs, 291 Kan. 132, 139, 238 P.3d 731 (2010) (due process); State v. DuMars, 37 Kan. App. 2d 600, 603, 154 P.3d 1120, rev. denied 284 Kan. 948 (2007) (mandate).
B. Compliance with Mandate.
Separated by issue, the Leffels contend that the BZA violated this court’s mandate in two ways. First, the BZA authorized a “new look” at the building application rather than reconsidering the 2006 building application with the parameters set by the Court of Appeals. Second, the BZA failed to address the impermissible plebiscite undermining its 2006 decision.
When an appellate court has remanded a case for further proceedings, a trial court must comply with the appellate court’s mandate and may consider only the matters essential to implementing tire mandate. In a second appeal, a determination regarding the trial court’s compliance with the mandate involves questions of law over which this court has unlimited review. DuMars, 37 Kan. App. 2d at 603. Nevertheless, absent specific direction by the appellate court, the trial court possesses discretion in implementing the mandate.
“Where the mandate of an appellate court merely reverses a ruling of the district court and remands die case for further proceedings but does not direct die judgment of the district court, die district court has discretion to preside over the remaining trial proceedings, as if the district court had originally made the z-uling mandated by the appellate court. See Waddell v. Woods, 160 Kan. 481, 483-84, 163 P.2d 348 (1945). In other words, a district court may address tiiose issues necessary to die resolution of die case that were left open by the appellate court’s mandate. See Laitram Corp. v. NEC Corp., 115 F.3d 947, 951 (Fed. Cir. 1997) (citing In re Sanford Fork & Tool Co., 160 U.S. 247, 256, 40 L. Ed. 414, 16 S. Ct. 291 [1895]; Caldwell v. Puget Sound Elec. Apprenticeship & Training Trust, 824 F.2d 765, 767 [9th Cir. 1987]).” Edwards v. State, 31 Kan. App. 2d 778, 781, 73 P.3d 772 (2003).
The rules governing appellate court mandates are a subset of judicial policy regarding the law of the case and are designed to implement consistency and finality of judicial rulings. See State v. Collier, 263 Kan. 629, 636, 952 P.2d 1326 (1998); DuMars, 37 Kan. App. 2d at 603. All questions decided in the prior appeal are settled law and will generally not be reconsidered. Collier, 263 Kan. at 632; DuMars, 37 Kan. App. 2d at 603. Where an appellate court has decided an issue by explicit language or necessary implication, a trial court may not reconsider the issue. Edwards, 31 Kan. App. 2d at 781; see also Cooke v. Gillespie, 285 Kan. 748, 758,176 P.3d 144 (2008) (refusing to allow a trial court to entertain summary judgment on the basis of a statute of limitations defense that was not raised in the prior appeal and was outside the specific consideration contained in the appellate court’s mandate).
Here, the remand did not require the trial court to effectuate the mandate of this court but required the BZA to effectuate the mandate. There is no principled reason the same rules should not apply to the BZA’s reconsideration under these circumstances. The mandate of this court in the prior appeal was broad, requiring reconsideration of the Leffels’ application for a building permit without giving undue weight to the public sentiment surrounding the proposed structure. Leffel I, slip op. at 14-15.
1. “New Look” versus “Look Back”
The Leffels contend that the BZA violated the mandate of this court by taking a “new look” at the application rather than a “look back” at the 2006 application. The Leffels concede that the BZA adopted an appropriate standard of review at its May 27, 2009, meeting when the BZA proposed reconsidering the information presented during the 2006 application process. Nevertheless, the Leffels contend that the BZA inappropriately remanded tire case to the ARB to exercise a “new look” at the surrounding properties to provide a recommendation about the proposed construction’s conformity with the style and design of houses within 500 feet of the proposed construction.
To address this argument, it is necessary to review the BZA’s decision in the original zoning appeal. In reversing the ARB’s decision to grant the Leffels a building permit, the BZA relied on four considerations: (1) The ARB should have deferred to the neighborhood input in opposition to the proposed construction; (2) the ARB failed to provide a clear basis for its finding that the proposed construction was in conformity with surrounding structures; (3) the ARB erroneously interpreted “surrounding structures” too broadly to include the general municipal area; and (4) the evidence presented to the ARB demonstrated that the proposed structure was not in conformity with surrounding structures.
On appeal, this court extended substantial deference to the BZA in making zoning determinations and finding reasonable the BZA’s limitation to the surrounding structures used for comparison. Leffel I, slip op. at 6-8. Accordingly, this court reversed the BZA’s denial of the Leffels’ building application only because this court could not determine the extent to which the BZA erroneously relied upon an impermissible plebiscite. Leffel I, slip op. at 15.
After remand, the BZA concluded that the ARB should provide a recommendation regarding the style and design conformity of the proposed construction when compared to the surrounding structures, which the BZA interpreted to mean die structures within 500 feet of the proposed construction. Because one of BZA’s objections to the ARB’s initial decision approving the Leffels’ ap plication rested on the ARB’s consideration of structures within Mission Hills instead of the “surrounding structures,” it was entirely consistent with this court’s mandate for the BZA to permit the ARB to reconsider the style and design of the proposed structure in light of the surrounding structures as defined by the BZA. See Edwards, 31 Kan. App. 2d at 781 (permitting consideration of all issues necessary to effectuate the mandate).
Moreover, at tire initial BZA hearing on remand, the Leffels’ attorney specifically requested the BZA to send the matter back to the ARB “for a review of the comparison for the houses in the 500 feet radius.” Implicit in the Leffels’ request is a reexamination of the evidence within the parameters set by the BZA. Though the Leffels challenge tire manner in which the ARB reconsidered the style and design of tire proposed structure, they cannot complain that the ARB’s reconsideration of the application constituted a violation of this court’s mandate when they suggested the procedure. See Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 296, 64 P.3d 357 (2003) (“A party may not invite error and then complain of that error on appeal.”).
The Leffels’ attempt to draw a distinction between a “new look” procedure and a “look back” procedure also fails for three reasons. First, on remand, the ARB’s composition was not identical to its composition the first time ARB considered the application. Consequently, at least one of tire ARB members would be required to take a fresh look at the evidence, even if consideration of the matter had been confined to information in the record.
Second, labeling the ARB’s procedure on remand a new look as opposed to a look back is a substantial misnomer. While the ARB did consider 75 photographs taken by city staff and depicting the homes within 500 feet of the proposed building site and the ARB members did conduct a personal visit to each of the homes within the 500-foot radius area, the ARB also reviewed and considered the information presented the first time the ARB considered the application. Based upon the amount of information presented to this court in Leffel I, the weight of the evidence in the ARB’s reconsideration must have been old evidence, not new evidence.
Finally, due to the BZA’s narrowed scope of surrounding structures used for comparison, a fresh consideration of the evidence, whether the evidence was limited to the information in the record or new evidence, was required to effectuate tire mandate of this court. The mere fact that the ARB considered evidence outside the administrative record in its consideration of the proposed structure’s conformity with the style and design of houses within 500 feet of the proposed building site does not constitute a violation of this court’s mandate.
The procedure used by the ARB and the BZA on remand did not violate this court’s mandate.
2. Impennissible Plebiscite.
The Leffels also contend that the BZA ignored the appellate mandate to consider tire extent to. which the BZA’s previous decision was affected by an impermissible plebiscite.
The mandate in Leffel I required the BZA to reconsider the Leffels’ application for a building permit without giving undue weight to the opinions of neighboring landowners. Quoting Gump Rev. Trust v. City of Wichita, 35 Kan. App. 2d 501, 511, 131 P.3d 1268 (2006), this court in Leffel I, slip op. at 3, noted that consideration of the opinions of neighboring property owners is permissible in a zoning decision, so long as the consideration of such opinions is relevant to establishing the existence or absence of one of the regulatory factors governing the zoning decision. Consideration of public opinion becomes improper when the zoning determination is based entirely upon public sentiment. Leffel I, slip op. at 3-4.
Contrary to the Leffels’ argument in this appeal, this court did not order the BZA to consider the extent to which its decision rested upon an impermissible plebiscite. Rather, this court directed the BZA to reconsider its decision without the influence of the impermissible plebiscite. This was done.
At flie initial BZA meeting after remand, legal counsel for the BZA told the BZA that it was to reconsider the application without taking into account the vote of the neighbors. The BZA then entered a discussion of the comparison of style and design between the proposed project and surrounding structures. The BZA sent the matter back to the ARB for limited consideration of the style and design conformity of the proposed building project.
There was no discussion of public opinion regarding the Leffels’ application for a building permit in the ARB proceedings. While the ARB indicated that it had reviewed tire record, nothing within its discussion or resolution indicated any reliance upon public sentiment.
At the next BZA meeting, legal counsel for the BZA again reminded the BZA not to consider public sentiment in arriving at its decision. The Leffels objected to the ARB’s willingness to consider the statements of Gary Gilson, the neighbor appealing the ARB’s original decision to approve the Leffels’ application for a building permit. The Leffels argued that Gilson’s participation in the case was contributing to an impermissible plebiscite. The BZA’s resolution affirming its earlier decision to deny tire Leffels’ application for a building permit specifically indicated that its decision was not based upon “the sentiments expressed by those who made their positions known during the various hearings before the ARB and this Board in this matter.”
All things considered, the BZA followed this court’s mandate. Moreover, BZA made its decision regarding the Leffels’ building application upon objective evidence relating to the regulatory factors regarding the style and design of the proposed structure without considering the opinions of the neighboring property owners.
The Leffels have failed to show that the BZA considered public sentiment in reaching its decision on remand. Rather, the record indicates that legal counsel to the BZA warned the BZA of an impermissible plebiscite at each meeting so that the BZA members were aware of this court’s mandate. The absence of any discussion of public sentiment further indicates the BZA’s attempts to remove the influence of public opinion from its deliberations. Nothing within the record contradicts the BZA’s statement that it reached its decision without considering the public opinion toward the project. It is the Leffels’ burden to establish that the action by the zoning board was unlawful or unreasonable. See Zimmerman, 289 Kan. at 945 (noting that appellant bears the burden of establishing unreasonableness of the zoning board’s action). This record clearly does not support the Leffels’ position that the BZA violated this court’s mandate in the remand proceedings.
C. Due Process.
Next, the Leffels contend that the reconsideration procedure used by the BZA after remand from this court violated due process. While the Leffels cite several cases indicating that due process is required in zoning proceedings, they fail to articulate the manner in which the ARB and the BZA violated their due process rights. The Leffels quote their entire letter to the BZA in opposition to the ARB’s recommendation, which includes both challenges to the procedure and to the substance of the ARB’s recommendation.
Appellate courts must liberally construe pro se pleadings to give effect to the content rather than rely on the form or label of the pleading. State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010). Nevertheless, a pro se litigant is held to the same procedural rules as a litigant who is represented by counsel. See Guillory v. State, 285 Kan. 223, 229, 170 P.3d 403 (2007). The Leffels’ brief, however, provides no argument illustrating how any of the cited challenges to the ARB’s decision constituted a violation of due process.
In any event, we will briefly address the Leffels’ due process arguments. The Leffels raise, at most, three due process objections to the ARB reconsideration procedure: (1) The ARB considered new evidence without permitting the Leffels an opportunity to present additional evidence; (2) the ARB arbitrarily adopted new rules and legal standards by which it addressed the Leffels’ application for a building permit;-and (3) the ARB continued to promote an impermissible plebiscite by adopting the procedural recommendations of Gilson.
The protection of the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution extends to quasi-judicial administrative proceedings as well as to court proceedings. See Davenport Pastures, 291 Kan. at 138-39; McPherson Landfill, Inc. v. Board of Shawnee County Comm’rs, 274 Kan. 303, 305, 49 P.3d 522 (2002). A denial of due process in a zoning determination renders the resulting decision void. Administrative proceedings, including zoning determinations, must be fair, open, and impartial, with adequate notice of the issues and the opportunity to test, explain, or rebut evidence. McPherson Landfill, Inc., 274 Kan. at 305; Suburban Medical Center v. Olathe Community Hosp., 226 Kan. 320, 330-31, 597 P.2d 654 (1979). Appellate review of a due process challenge is unlimited. Davenpoit Pastures, 291 Kan. at 139.
1. Consideration of New Evidence.
If the first argument is broadly construed, the Leffels contend that the ARB impermissibly considered new evidence on remand by accepting photographs by staff members of houses within 500 feet of the proposed building site and by conducting a tour of the neighborhood to examine the houses within 500 feet of the proposed building site, without giving the Leffels the opportunity to challenge the evidence with competing evidence or by presenting witnesses.
Mission Hills contends that the Leffels were not entitled to a full hearing on remand, citing Gump Rev. Trust, 35 Kan. App. 2d at 515. In Gump Rev. Trust, the trial court remanded a zoning decision to the administrative board for further findings regarding its decision. On remand, without holding a hearing, the Wichita city council deliberated in executive session without permitting further hearing by the parties. The council then adopted additional findings in support of its decision to deny a conditional use permit. Based on those additional findings, the trial court affirmed the council’s action. On appeal, this court found no due process violation in the council’s decision to make additional factual findings without further hearing on remand. Gump Rev. Trust, 35 Kan. App. 2d at 515.
While factually distinguishable and therefoi'e not controlling, Gump Rev. Trust is instructive. As in Gump Rev. Trust, the Leffels were given the full opportunity to present any evidence in support of their application for a building permit in the original administrative proceedings. On remand, the BZA determined that it would entertain no new evidence by either party. For the purpose of defining the scope of its review, the ARB did accept photographs and an address list of the 75 homes within 500 feet of the proposed building site, and its members visited tire neighborhood of the proposed site to view the houses on the address list. Otherwise, the ARB relied upon the evidence in the record.
Although the Leffels have complained that the ARB did not consider photographs with comments by Mrs. Leffel, they have not alleged that the 75 photographs taken by the city staff misrepresented the area within 500 feet of their proposed building project by omitting significant architectural details of the surrounding structures or omitting certain homes. Moreover, the Leffels’ challenge to ARB’s refusal to consider their photographs with comments is neutralized by the fact that each ARB member conducted a visual inspection of all the surrounding structures within 500 feet of the proposed building site. After all, a visual inspection is a common method of evaluating a structure.
Further, as far as the record on appeal demonstrates, both the photographs and the on-site observations by the ARB members were completely uninfluenced by the parties and were neutral with respect to tire litigation. “Knowledge gained by the board through an inspection of the premises may be used in deciding whether to grant or deny relief sought.” 83 Am. Jur. 2d, Zoning and Planning § 715, p. 603 (2003). Neither the use of the walking tour to consider the style and design of the proposed project in the context of the area in which it will be built nor consideration of photographs to define the area of comparison violates principles of due process.
Finally, the Leffels have provided no indication that their proffered evidence would have added anything new to the ARB’s deliberation process. In a similar context, our Supreme Court has affirmed an administrative procedure authorizing introduction of only new evidence or arguments. See Houston v. Board of City Commissioners, 218 Kan. 323, 331, 543 P.2d 1010 (1975) (finding nothing objectionable in a procedure that refused to consider evidence or arguments of the parties unless it was original).
Accordingly, the Leffels have failed to carry their burden to establish that the procedure used by the ARB violated due process.
2. Adoption of New Rules and Definitions.
The Leffels also challenged the ARB’s change of rules and definition of “style and design.” Nevertheless, the Leffels do not indicate what rules changed or how the definition of “style and design” was modified. The ARB reviewed the Leffels’ building application for the limited purpose of determining its architectural conformity with the structures within 500 feet of the proposed building site. This limited review was prompted by the BZA’s adoption of 500 feet as a reasonable definition of “surrounding structures.”
During tlie original discussion of the Leffels’ building application, the ARB specifically noted that the proposed structure must be “in general conformance with the style and design of surrounding structures.” Yet, the ARB broadly construed “surrounding structures” to include homes in “the area at large.” In the proceedings by the ARB after remand from this court, the ARB clearly reconsidered the conformity of the proposed structure’s style and design with the houses within 500 feet of the proposed building project as prescribed by the BZA. Although the ARB reached a different conclusion after reviewing the narrowed scope of surrounding structures, the record contains no indication that the BZA applied a different definition of style and design, as suggested by the Leffels.
Similarly, the Leffels fail to articulate what different rules were applied in the remand proceedings. Because these proceedings were required by remand from this court, due process does not require an identical procedure to that used for an initial zoning determination. See Gump Rev. Trust, 35 Kan. App. 2d at 515. The Leffels fail to articulate tire rules they believed the ARB or the BZA changed, and this court cannot conduct a meaningful review of the claim. See Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009) (failure to brief is deemed abandonment of claim).
3. Impermissible Plebiscite.
Undue reliance upon community opinion regarding a proposed building project might constitute a due process violation, see Leffel I, slip op. at 3-4, but, as previously discussed, nothing in the record on appeal indicates that the ARB or the BZA was influenced by public opinion regarding the proposed construction. Rather, the BZA specifically stated that it did not consider public sentiment in ruling on the Leffels’ building application.
The Leffels contend that the BZA’s consideration of Gilson’s opinion concerning the appropriate procedure to implement on remand constituted an impermissible plebiscite. This due process argument also fails.
When the BZA initially determined to send the matter to the ARB for a recommendation, Gilson was not present. After the ARB proposed its review procedure in the June 23,2009, letter, the ARB accepted comments from both parties regarding the proper procedure. Gilson is a party to this litigation.
Clearly, the Leffels do not understand the meaning of a plebiscite. This court has never said that a zoning board cannot consider the opinion of members of the general public with regard to a zoning determination. In fact, in Leffel I, this court indicated that the failure to consider public sentiment about a particular building project might be improper. See slip op. at 3 (citing Gump Rev. Trust, 35 Kan. App. 2d at 511) (“[Neighborhood objections] remain[ ] a consideration in the ultimate decision.”). An impermissible plebiscite occurs when the zoning board relinquishes its quasi-judicial role to adopt the public sentiment expressed by a vocal majority. Such a plebiscite is impermissible because popular support for, or opposition to, a proposed construction project might be based upon irrelevant environmental, financial, or personal concerns. Leffel I, slip op. at 4. Gilson’s opinion regarding the review procedures used to reconsider the Leffels’ application was not irrelevant and did not touch upon the ultimate zoning decision. Consequently, the ARB’s consideration or adoption of Gilson’s recommendation as to the procedure the ARB should use does not constitute an impermissible plebiscite or violate due process.
Because tire Leffels have failed to carry their burden to establish that the BZA’s decision was unlawful or unreasonable, we affirm.
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Green, J.:
Baldhir Sood appeals from his convictions by a jury of one count of computer fraud, in violation of K.S.A. 21-3755, and one count of attempted theft, in violation of K.S.A. 21-3301 and K.S.A. 21-3701. On appeal, Baldhir argues that the trial court erred in denying his request for a jury instruction on ignorance or mistake of fact. We agree and reverse. Baldhir also argues that the State failed to present sufficient evidence to convict him of computer fraud. We disagree and affirm. Finally, Baldhir argues that the State failed to present sufficient evidence to convict him of attempted theft. We disagree and affirm.
Because the attempted theft charge is so closely interwoven with the computer fraud charge, and because we are reversing the computer fraud conviction based on the trial court’s failure to give the ignorance or mistake of fact instruction and a specific intent instruction concerning the computer fraud charge, we reverse the attempted theft conviction as well and remand both the computer fraud and attempted theft charges for a new trial.
In 2009, the Security Division of the Kansas Lottery (Lottery), as part of its Retailer Honesty Assurance Program, conducted a sting operation to test the integrity of the state lotteiy. The purpose of the sting operation was to “ensure that eveiy player ha[d] a fair chance of being paid if they [had] a winning ticket.” As part of the sting operation, the Lotteiy made counterfeit scratch off tickets for its Scrabble game. When scanned, the counterfeit ticket (sting ticket) would appear to have a prize value of $25,000. To implement the sting operation, the Lottery sent an undercover Lottery enforcement agent to various stores around the state. The agent, dressed in street clothes, would enter the store with a sting ticket and an authentic nonwinning ticket. Then, the agent would present both tickets to the clerk to see if either ticket was a winning ticket. If possible, the agent would tiy to appear distracted to give the clerk the opportunity to check die tickets without the agent seeing the results.
Once a store clerk received the tickets from the agent, he or she would have to enter a three-digit code printed on the ticket and would have to scan the ticket’s bar code at the lotteiy terminal to determine if the ticket was a winner. Generally, when a clerk scanned a winning ticket, the terminal would display one of two messages. If the value of the winning ticket was less than $600, the terminal would display “winner” and would show the prize amount, which could be paid by the store clerk immediately. If the prize value of the ticket was $600 or more, then the terminal display would display “Claim at Lottery.” Moreover, the terminal would play either You’re in the Money or Beethoven’s Fifth Symphony if the ticket was a winning ticket. When a losing ticket was scanned, however, the lottery terminal would not produce sound but merely displayed, “Sorry not a winner.” Under the sting operation, the agent’s actions were dependent on the actions of the store clerk. If the agent was told by the clerk that the sting ticket was a winner, he took the ticket back and left the store. But if the agent was told that the sting ticket was not a winner, he or she would do the following:
“I would — if it was said in a manner that it was clear, I would say, Thank you, and walk out of the store. If it was said in a manner that was a little bit ambiguous, I would ask, Are you sure it’s not a winner, or Is it not a winner, or Neither ticket’s a winner? And then I would leave once being told that the ticket was not a winning ticket.”
On July 29,2009, Agent Paul Schliffke went to a Shell gas station in Johnson County, Kansas, to conduct the sting operation. The station that Schliffke went to was owned by Baldhir and his wife Jiwan Jyoti Sood. Baldhir was working as the clerk when Schliffke entered the store. After Schliffke entered the store, he purchased a bottle of water and presented Baldhir with the sting ticket and an authentic losing ticket in accordance with the sting operation. Baldhir scanned the tickets and told Schliffke that he did not have a winning ticket. Schliffke then asked Baldhir, “Neither one?” and Baldhir responded that neither ticket was a winner. Neither You’re in the Money or Beethoven’s Fifth Symphony played when Baldhir scanned the tickets. Schliffke left the tickets with Baldhir and left the store.
The next day Jiwan called the Lottery headquarters and asked about the value of the sting ticket. Jiwan’s call was directed to Schliffke. After Schliffke confirmed that Jiwan possessed the sting ticket, he asked her if the ticket was hers. Jiwan stated that the ticket was hers. Schliffke asked Jiwan how much she thought the ticket was worth, and she stated $25,000.
On August 12, 2009, Jiwan went to the Lottery headquarters to fill out a claim form for the sting ticket along with an application to be a lottery retailer at another store owned by her and Baldhir. After Jiwan filled out the paperwork, Schliffke asked her questions about the sting ticket. At first, Jiwan told Schliffke that Baldhir had purchased the sting ticket 2 weeks ago and that she had scratched the ticket. After Schliffke confronted Jiwan, however, she changed her statement and said that Baldhir gave her the sting ticket, which he thought was a winning ticket. Specifically, Jiwan stated that Baldhir had scanned several tickets without getting a read-out message from the terminal. Thus, Baldhir asked a customer what this meant, and the customer told Baldhir that the sting ticket was a winning ticket and suggested that he call the Lotteiy office.
Later, the State charged Baldhir with one count of computer fraud, in violation of K.S.A. 21-3755, and one count of attempted theft, in violation of K.S.A. 21-3301 and K.S.A. 21-3701. Baldhir’s case proceeded to a trial by jury. At trial, Baldhir testified that Schliffke came into the store, bought a drink, and asked him to check two lottery tickets. Baldhir then scanned the tickets at the terminal, but because no music played when he scanned the tickets, he believed that neither ticket was a winner. Baldhir further testified that after he scanned the tickets, he threw them in the trash without looking at the terminal display.
About 10 minutes later, one of the Soods’ regular customers came into the store with some lotteiy tickets to check. Baldhir told the customer that he thought the terminal was not working properly, but he allowed the customer to check his tickets at the terminal anyway. The customer also checked the tickets from the trash. After the customer checked the sting ticket, he gave the ticket to Baldhir, who wrote a note on the ticket saying that it was a winning ticket. Baldhir then placed the sting ticket, along with the note, in the cash drawer.
Regina Moore, another one of the Soods’ regular customers, testified on Baldhir’s behalf and corroborated his version of the events. Moore testified that a man came into the store and asked if he could check his lotteiy tickets. Moore testified that .Baldhir told the customer that the machine was not working but that he could go airead and try to check his tickets. The customer put a ticket in the lottery machine and removed a ticket from the trash and put it in the machine as well. Next, Moore testified that Baldhir took from the customer a ticket that had been removed from the trash, that Baldhir wrote something on it, and that Baldhir placed it in the cash register.
After the close of evidence, the parties had a jury instruction conference with the trial court to determine the appropriate jury instructions. During the conference, Baldhir’s counsel requested an instruction on ignorance or mistake of fact modeled after PIK Crim. 3d 54.03. The trial court denied Baldhir’s counsel’s jury instruction request. The jury found Baldhir guilty on both counts. The trial court sentenced Baldhir to an underlying controlling sen tence of 8 months in prison and granted him probation for a term of 18 months.
Is Computer Fraud under K. S.A. 21-3755(b)(1 )(B) a Specific Intent CrimeP
Before we can address the merits of Baldhir s arguments, we first must determine if a violation of K.S.A. 21-3755(b)(l)(B), the computer fraud statute, is a specific intent crime. The State maintains that Baldhir was not entitled to the ignorance or mistake of fact instruction because a violation of the computer fraud statute is not a specific intent crime. On the other hand, Baldhir argues that the computer fraud statute is a specific intent crime. The determination whether a criminal statute is a general intent or a specific intent crime is a legal question over which appellate courts have unlimited review. State v. Richardson, 289 Kan. 118, 121, 209 P.3d 696 (2009).
The parties have not cited a case and our research has not revealed a case that decides this specific issue.
The computer fraud statute under which Baldhir was convicted provides in relevant part:
“Computer crime is: . . . using a computer, computer system, computer network or any other property for the purpose of devising or executing a scheme or artifice with the intent to defraud or for the purpose of obtaining money, property, services or any other thing of value by means of false or fraudulent pretense or representation.” (Emphasis added.) K.S.A. 21-3755(b)(l)(B).
“[Kansas] appellate courts have consistently interpreted statutes that define a crime by using the phrase ‘with intent to’ as requiring a specific intent element.” Richardson, 289 Kan. at 122. Our appellate courts have enumerated examples of specific intent crimes. See, e.g., In re C.P.W., 289 Kan. 448, 454-55, 213 P.3d 413 (2009); State v. Diaz, 44 Kan. App. 2d 870, 874, 241 P.3d 1018, rev. denied 291 Kan. 913 (2011). Nevertheless, inclusion of intent language in a statute does not automatically show that the legislature intended to create a specific intent crime. See, e.g., State v. Makthepharak, 276 Kan. 563, 572, 78 P.3d 412 (2003) (aggravated battery is not a specific intent crime); State v. Campbell, 30 Kan. App. 2d 70, 73, 39 P.3d 97, rev. denied 273 Kan. 1037 (2002).
Specific intent crimes refer to intent to commit a further act or achieve a future consequence. Our Supreme Court made precisely this point in Richardson: “The distinction between general intent and specific intent crimes is whether, in addition to the intent required by K.S.A. 21-3201, the statute defining the crime in question identifies or requires a further particular intent which must accompany the prohibited acts.’ [Citation omitted.]” Richardson, 289 Kan. at 121. K.S.A. 21-3755(b)(l)(B) proscribes the fraudulent use of a computer “with the intent to defraud.” (Emphasis added.) An “ ‘[i]ntent to defraud requires a willful act by the defendant with the specific intent to deceive or cheat, usually for the purpose of getting financial gain for one’s self or causing financial loss to another.’ [Citation omitted.]” United States v. Howard, 619 F.3d 723, 727 (7th Cir. 2010).
Similarly, K.S.A. 21-3755(b)(l)(B) contains reference to an intent to do a further act or achieve a future consequence. For example, in addition to using a computer to devise or execute a scheme or artifice either to defraud or for the purpose of obtaining money, property, services or any other thing of value by means of false or fraudulent pretense or representation, K.S.A. 21-3755(b)(1)(B) requires a further act of a defendant: that the defendant acted with the intent to defraud.
The computer fraud statute under which Baldhir was convicted prohibits two distinct types of conduct using a computer: (1) to defraud or (2) to obtain money, property, services or any other thing of value by means of false or fraudulent pretense or representation. K.S.A. 21-3755(b)(l)(B). Here, the State charged Baldhir only under the second prong of this statute. Both prongs of this statute require a specific intent element. To illustrate, both prongs require the devising or executing of a scheme or artifice with intent (1) to defraud or (2) to obtain money, property, services or any other thing of value by means of false or fraudulent pretense or representation. If the scheme or artifice is reasonably calculated to deceive a person of ordinary intelligence, the devising or execution of that scheme or artifice is relevant to show that the defendant has acted with the intent to defraud.
Without a trial court instructing the jury on the specific intent element — that the defendant devised or executed a scheme or artifice with the intent (1) to defraud or (2) to obtain money, property, services or any other thing of value by means of false or fraudulent pretense or representation- — the defendant could be convicted of computer fraud without any intent on the defendant’s part to deceive or cheat someone. Thus, K.S.A. 21-3755(b)(l)(B) is a specific intent crime.
We need not analyze the requisite intent for attempt, as our Supreme Court has interpreted attempt as a specific intent crime. See State v. Brown, 291 Kan. 646, 654, 244 P.3d 267 (2011). Thus, we move to our next question: Did the trial court commit reversible error in failing to give an instruction on ignorance or mistake of fact?
Standard of Review
The standard of review for a trial court’s failure to give a jury instruction depends on whether the defendant requested or objected to the instruction. In this case, Baldhir requested the ignorance or mistake of fact instruction. Thus, the standard of review is as follows:
“When a party has objected to an instruction at trial, tire instruction will be examined on appeal to determine if it properly and fairly states tire law as applied to the facts of tire case and could not have reasonably misled the jury. In making this determination an appellate court is required to consider the instructions as a whole and not isolate any one instruction.” State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 (2009).
“ “When tire trial court refuses to give a requested instruction, an appellate court must review the evidence in a light most favorable to the party requesting the instruction.’ ” State v. Ransom, 288 Kan. 697, 713, 207 P.3d 208 (2009).
“ ‘ “A defendant is entitled to instructions on the law applicable to his or her theory of defense if there is evidence to support the theory. However, there must be evidence which, viewed in tire light most favorable to the defendant, is sufficient to justify a rational factfinder finding in accordance with the defendant’s theory.” ’ ” State v. Hendrix, 289 Kan. 859, 861, 218 P.3d 40 (2009).
Jury Instructions
Baldhir argues that the trial court committed reversible error in refusing to give an instruction on ignorance or mistake of fact pat temed on PIK Crim. 3d 54.03. Specifically, Baldhir argues that the trial court erred in refusing to give an ignorance or mistake of fact instruction because it viewed the evidence in the light most favorable to the State instead of the light most favorable to him. On the other hand, the State maintains that Baldhir was not entitled to the ignorance or mistake of fact instruction because he presented insufficient evidence to “justify a rational factfinder finding in accordance with a mistake of fact instruction.”
Baldhir s primaiy defense theory was drat he did not know the sting ticket was a winning ticket when he scanned it. Indeed, Baldhir’s counsel relied on this theory during opening and closing argument, and Baldhir testified in conformance with this defense theory at trial. In particular, Baldhir testified that he mistakenly believed the sting ticket was not a winning ticket because the lottery terminal did not play music when he scanned the ticket. Moreover, Baldhir testified that he relies primarily on the music to determine if a ticket is a winner and that he did not check the message on the terminal when he scanned Schliffke’s tickets because he was busy. When a lottery terminal is functioning properly, it will play music if a winning ticket is scanned. At trial, Schliffke, who testified for the State, stated that he did not hear music when Baldhir scanned the sting ticket. The lottery terminal’s failure to play music as it was designed to do when a winning ticket is scanned, coupled with Baldhir’s failure to check tire terminal message, supports Baldhir’s assertion that he did not know the sting ticket was a winning ticket when he scanned it.
In addition, Baldhir maintains that the State’s evidence failed to show that the lottery terminal was working properly when he scanned the tickets. In other words, if the lottery terminal was not working properly, Baldhir would not have known the sting ticket was a winning ticket when he scanned it. At trial, Schliffke testified that after he gave Baldhir the tickets, he turned his back to the register. Thus, Schliffke did not see whether “Claim at Lottery” was displayed on the terminal when Baldhir scanned the tickets. To support his position on appeal, Baldhir relies on a 42-page report, marked as Exhibit A, that was admitted into evidence at trial. The report showed all of the transactions from July 29, 2009, that occurred on the lottery terminal in Baldhir s store. Baldhir notes that the following error codes occurred on the terminal throughout the day:
“[A]n error code reading ‘#SYND_BAD_EXTERN_RECID’ occurred at 3:22:46, the first entiy of the day . . . That same error code appeared four more times at 5:15, fifteen times between 17:06:18 and 18:16:47, and five times at 19:04:06. An error code reading YfiBADRED’ occurred 39 times throughout the day, both before and after [Baldhir] scanned Mr. Schliffke’s tickets. An error code reading T79’ occurred ten times from 17:09:08 to 17:14:07.”
Because the report showed that the terminal had numerous errors throughout the day, an inference can be made that the terminal was not working properly when Baldhir scanned the tickets. If the terminal was not working properly because it failed to play music or show the appropriate message, Baldhir would not have known that the sting ticket was a winning ticket when he scanned it.
Viewed in the light most favorable to Baldhir, these facts support his argument that the trial court should have given an ignorance or mistake of fact instruction. In other words, this evidence would be sufficient to justify a rational factfinder finding in accordance with Baldhir’s defensive theoiy under both his computer fraud and attempted theft charges. Consequently, the trial court erred in refusing to give tire ignorance or mistake of fact instruction based on the State’s charges that Baldhir had committed computer fraud and attempted theft on July 29, 2009. The trial court’s error, however, does not end our analysis. Next, we must determine if the trial court’s refusal to give tire instruction was reversible error.
Reversible Error
When determining if the trial court’s failure to give a requested jury instruction is reversible error,
“an appellate court cannot consider the requested instruction in isolation. Rather, the court must consider all of the instructions together as a whole. If the instructions as a whole properly and fairly state tire law as applied to the facts of the case, and the jury could not reasonably be misled by diem, tire instructions are not reversible error even if they are in some way erroneous.” State v. Jackson, 280 Kan. 541, 550, 124 P.3d 460 (2005).
The computer fraud instruction under which the jury convicted Baldhir stated the following:
“The defendant is charged with committing a computer crime. The defendant pleads not guilty.
“To establish this charge, each of tire following claims must be proved:
“1. That the defendant used a computer or computer network for the purpose of executing a scheme for the purpose of obtaining property by means of false or fraudulent pretense or representation.
“2. That this act occurred on or about the 29th day of July, 2009, in Johnson County, Kansas.”
The trial court gave a presumption of intent instruction which read as follows:
“Ordinarily, a person intends all of the usual consequences of his voluntary acts. This inference may be considered by you along with all the other evidence in the case. You may accept or reject it in determining whether the State has met its burden to prove the required criminal intent of the defendant. This burden never shifts to the defendant.”
But this instruction stating that “a person intends all of the usual consequences of his voluntary acts” is “ ‘a rule of evidence and does not fulfill the required element of criminal intent necessary for conviction in those cases where criminal intent is a necessary element of the offense.’ [Citation omitted.].” State v. Mason, 238 Kan. 129, 135-36, 708 P.2d 963 (1985). Because we have determined that computer fraud is a specific intent crime, tire presumption of intent instruction would have been insufficient to apprise the jury that it could convict Baldhir only if it was proven beyond a reasonable doubt that he carried out “a scheme for the purpose of obtaining property by means of false or fraudulent pretense or representation” with the intent to defraud.
Moreover, the trial court is required to include the specific intent element in the jury instructions: “When a crime requires a specific intent, that specific intent element ‘must be included in the charge and the instructions of the court covering the separate elements’ of the crime.” Richardson, 289 Kan. at 121. Here, tire specific intent element was not included in the trial court’s jury instructions.
Without the trial court instructing the juiy on the specific intent element — that Baldhir devised or executed a scheme or artifice with the intent to obtain money, property, services or any other thing of value by means of false or fraudulent pretense or representation — the trial court’s instructions that it gave to the jury did not preclude a conviction of Baldhir on the basis of mistake. Thus, the trial court committed reversible error in failing to include the specific intent element in the jury instructions and to give an ignorance or mistake of fact instruction for Baldhir’s computer fraud charge.
Moreover, the computer fraud charge and the attempted theft charges are so closely interwoven that the outcome of the computer fraud charge will most likely determine the outcome of the attempted theft charge. Because we are reversing the computer fraud conviction, we reverse the attempted theft conviction as well and remand both the computer fraud and the attempted theft charges for a new trial.
Insufficiency of Evidence
Baldhir contends that the. State failed to present sufficient evidence to convict him of computer fraud and attempted theft. To determine whether evidence is sufficient to uphold a conviction, we apply the following standard of review:
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after a review of all die evidence, viewed in die light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. McCaslin, 291 Kan. 697, Syl. ¶ 7, 245 P.3d 1030 (2011).
■ Moreover, in determining whether there is sufficient evidence to support a conviction, an appellate court generally will not reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). It is only in rare cases where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v. Matlock, 233 Kan. 1, 5-6, 660 P.2d 945 (1983).
Computer Fraud Charge
In examining the evidence in the light most favorable to the State, the State presented sufficient evidence for a rational juror to have found Baldhir guilty of computer fraud. During the trial, the State called Robert Heptig and Casey Fulton as witnesses. Both Heptig and Fulton were employees of GTECH Corporation (GTECH), a worldwide lotteiy gaming company that provides support to the Kansas Lottery. Specifically, GTECH provides hardware ánd software for the lottery games. Moreover, it provides field support to the stores that carry lottery games. Heptig, who was a supervisor of GTECH service technicians, explained GTECH’s field support procedures. The field service technicians were to ensure that the lotteiy terminals were operating properly, along with performing preventive maintenance on the terminals. When a store had a problem with a terminal, they called a GTECH hotline. The GTECH hotline kept track of when a call was placed and where that call came from.
The State maintains that there was no indication from GTECH’s internal documents that the lottery terminal was malfunctioning when Baldhir scanned the sting ticket. To support its argument, the State relies on the testimony of Fulton. During the trial, Fulton — one of GTECH’s quality assurance employees — testified that the internal code errors from the 42-page- report would not have been displayed on Baldhir’s terminal. Instead, Baldhir’s terminal would have displayed “winner” or “Sorry not a winner.” Moreover, the State notes that Baldhir did not call GTECH for service support when he scanned Schliffke’s ticket. If the terminal was malfunctioning as Baldhir maintained, then someone from the store would have called GTECH’s support hotline. Because Baldhir failed to do so, an inference can be made that the terminal was functioning properly. Fulton did admit, however, that someone from the Soods’ store placed service calls to GTECH at 5:21:42 p.m. and 6:15:02 p.m. But the State points out that these calls were too remote from when Baldhir scanned the earlier sting ticket to support his position that the terminal was not working properly. In other words, simply because the terminal was having issues be tween 5 and 6 p.m. does not necessarily mean that the terminal was malfunctioning when Baldhir scanned the sting ticket at 11:55:15 a.m.
The State also relies on Baldhir’s experience with the lottery terminals to support its position that it presented sufficient evidence. At trial, Baldhir testified that he had sold lottery tickets for over 7 years and that he was familiar with the terminal’s readout based on the value of the ticket, i.e., if a ticket was worth $600 or more, the display would read “Claim at Lottery,” and if the ticket was worth less than $600, the display would read “winner” and would state the amount of the prize. Based on Baldhir’s experience, an inference can be made that he scanned the ticket, realized it was worth a large amount, and decided to keep it for himself because Schliffke’s back was turned when Baldhir scanned the sting ticket.
Finally, the State relies on Baldhir’s 18-year marriage to Jiwan, coupled with Jiwan’s actions in attempting to claim the prize money. Specifically, the State maintains that
“[biased on the evidence, a reasonable jury could conclude that [Baldhir] took the ticket, and asked his wife to claim it at the Lottery. On July 30, 2009, tire day after Schliffke presented the [sting] ticket, Jiwan Sood called the Lottery, claimed she owned the ticket, confirmed the $25,000 prize, and wanted a check issued that day.”
After viewing the evidence in the light most favorable to the State, we determine that the evidence was sufficient for a rational juror to have found Baldhir guilty of computer fraud beyond a reasonable doubt.
Attempted Theft Charge
The State also presented sufficient evidence for a rational juror to have found Baldhir guilty of attempted theft. The State points to the following evidence in support of Baldhir’s attempted theft conviction: that Baldhir had sold lottery tickets for over 7 years; that he was familiar with how lottery terminals worked; that there was no indication from GTECH’s internal documents that the lottery terminal was malfunctioning when Baldhir scanned the sting ticket; and that Baldhir’s wife, with whom he had shared an 18- year marriage, called the Lottery office the day after her husband had scanned the sting ticket, claiming that she owned the sting ticket, confirming the prize amount of $25,000 for the sting ticket, and requesting a check for that amount the same day.
Viewing the evidence in the light most favorable to the State, we determine that the evidence was sufficient for a rational juror to have found Baldhir guilty of attempted theft beyond a reasonable doubt.
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Hill, J.:
One of the many duties of a county commissioner in Kansas is to decide whether a city’s proposed annexation land into the city provides for the orderly growth and development of the entire community, both inside and outside the city. In this appeal, a coalition of landowners seeks the reversal of the resolution by the Board of County Commissioners of Johnson County granting an annexation petition of the City of Overland Park. Our review of the record reveals that the Board of Commissioners did not lose jurisdiction to make this decision, as the landowners contend. The Board left the record open and accepted evidence after the public hearing on the matter was held and thus did not adjourn their meeting sine die. Also, the statutory requirement for making such a decision within 7 days of the public hearing is directory and not mandatory; therefore, the commission did not lose jurisdiction to decide this matter for that reason. Next, we hold that substantial evidence supports the Board’s decision. Further, the record also reveals that those opposed to the annexation received their due process rights of receiving notice and being heard in a meaningful way despite their claims to the contrary. Finally, we hold that both the City and the Board of Commissioners substantially complied with the annexation statutes.
Overland Park wanted to expand.
In 2007, the City of Overland Park began taking steps to annex about 15 square miles of land in Johnson County. So, in August of that year, the City approved a petition for annexation that requested the Johnson County Board of Commissioners to first conduct a public hearing on the advisability of the annexation and then grant the annexation. Throughout this opinion we will refer to the Commissioners as “the Board” and Overland Park as “die City.”
A group of landowners opposing annexation formed and called themselves the “No to Annexation Coalition.” Their officers are Norman Pishny, Lynne and Gerald Matile, and Thomas S. Watson. These officers were the named plaintiffs in the challenge to the annexation filed in the district court. We will refer to them as the “No Coalition.”
Citing K.S.A. 12-521 as authority, the City filed its petition on August 23, 2007. The petition was supported by a report on the City’s plans for extending municipal services to the area. This report included:
• a physical description of the area proposed to be annexed;
• a breakdown of the existing land uses, platting, zoning, and land use planning;
® discussion about the existing streets, sewer districts, fire districts, school districts, and utilities;
• an estimate of the current population;
• the rationale for the proposed annexation;
• an explanation as to how municipal services would be extended to the annexed area;
• a list of services not provided by the City;
• a timetable for the extension of municipal services to the annexed area and tire method of financing;
• a cost analysis regarding the financial impact on residents of the City and residents of the annexed area.
One portion of the report specifically dealt with fire services. It noted that the area proposed to be annexed was located entirely within the boundaries of Johnson County Fire District #2. If the annexation was approved, the City intended to provide fire and emergency services to the annexed area through an intergovernmental service agreement with the Fire District. The report suggested the City would negotiate a 3-year agreement in which the City would compensate die Fire District $180,000 per year for providing services to the annexed area.
After some discussion, the Board decided to hold a public hearing on the proposal on October 30, 2007. The Board notified the public of this hearing by publishing in the local newspapers a copy of a sketch marking the land the City wanted to annex, the legal description of the land, and a list of the landowners who were affected by the proposal.
This same information, along with a copy of the petition for annexation, the City’s service extension plan, and various other documents were also posted on the County’s website. Later, in September, landowners in the area proposed for annexation were notified of the public hearing via certified mail and given copies of pertinent documents as well. These landowners were identified by Kansas Title Company.
Sometime prior to September 24, 2007, it was discovered that Kansas Title had failed to identify the owners of an 11.33 percent interest in a certain tract included in the area proposed to be annexed. These landowners were Frank L. Mackey and Virginia A. Mackey. Notice of the public hearing and the materials described above were then sent to the Mackeys by way of certified mail on September 24, 2007. Virginia Mackey acknowledged receipt of the mail on September 25, 2007.
Once notices were sent out, various other governing bodies began to act upon the City’s proposal. On September 10, 2007, the City agreed to pass certain “grandfathering ordinances” if the County approved the petition for annexation. Then, on September 24,2007, the City Planning Commission issued a resolution finding the proposed annexation plan was compatible with the City’s plans. The following day, Johnson County deemed the annexation plan compatible with its long range plans as well.
The Fire District met on October 19, 2007, to consider the agreement with the City. Information presented at that meeting indicated the City had indeed offered the Fire District a contract for $185,000 per year for 3 years of services to the area proposed for annexation. However, the Fire District approved a proposed agreement that increased the contract term to 10 years and required the City to pay the Fire District $508,000 per year for the first 5 years and $315,000 per year thereafter. At a City council meeting held on October 24, 2007, the City voted to approve the Fire District’s proposed agreement.
The Board’s hearing on the petition was left open.
On October 30, 2007, the Board’s public hearing on the annexation petition opened. At the meeting, the City presented testimony and exhibits regarding the proposed annexation. Then, members of tire public, including the No Coalition, commented on the proposal. Near the end of the meeting, the Chairman of the Board announced that the record would close on November 30, 2007, and information could be added to the record until that time. The Chairman noted that when the record closed on November 30, the Board would make its decision within 7 days. The meeting was then adjourned.
But the taking of public comment did not end on November 30 because on November 15, 2007, the Board passed a resolution extending the time for submitting information to the record to Februaiy 15, 2008, at 5 p.m. The Board indicated that allowing additional time would be beneficial to the citizens and the City, as they would have more time to provide comments and information after the holiday season.
Both the City and the No Coalition took advantage of this opportunity to make additional comments and submissions to the Board. Starting in late Januaiy 2008 and throughout the month of February, the City submitted additional information to the record. On Januaiy 25, 2008, it submitted a rejoinder to statements made by representatives of the Fire District in response to questions posed by the County. Then, on February 6, 2008, the City filed (1) a rejoinder to the responses provided by the Johnson County Sheriff s Office in response to questions posed by the County; (2) a rejoinder to the responses provided by the City of Spring Hill in response to questions posed by the County; and (3) a response to comments and inquiries of miscellaneous citizens. The City also submitted further information to the record on February 12,2008. On February 15, 2008, the City submitted more information to the record, including a document titled, “fire service agreement (Option 6)” and “Substitute for SEP Errata Sheet No. 2.”
For their part, the No Coalition and other members of the public also sent emails to the Board, appeared personally and spoke at regular Board meetings, and presented other information on their position. On February 15, 2008, counsel for the coalition also submitted numerous exhibits to the record. The record closed sine die at 5 p.m. that day. After that, on February 19, 2008, the No Coalition counsel wrote the Board, again expressing opposition to the annexation. The bulk of this letter complained about the City’s “last-minute” negotiations with the Fire Department. The letter condemns the Option 6 fire agreement and the City’s attempt to “cobble together” a plan.
Finally, on February 21, 2008, the Board rendered its decision on the matter. After setting forth a great deal of analysis, Johnson County approved the annexation in part and denied it in part. After dividing die proposed annexation areas into five separate parts, the Board decided that annexation of areas 1, 2, and 3 was advisable, but annexation of areas 4 and 5 was not. This meant that a little over 8 square miles were annexed by the City.
Landowners from the No Coalition appealed the Board’s decision to the district court. That court affirmed the decision, finding the Board’s action was supported by substantial evidence, and the Board acted lawfully and within the scope of its authority.
To us, the No Coalition raises five issues in their challenge to the district court’s approval of the annexation:
• the annexation is void because the Board lacked jurisdiction to enter its final order;
• there was insufficient evidence upon which to grant the annexation;
• the landowners’ due process rights were violated because of continuous changes to the City’s plan;
• the landowners’ due process rights were violated due to ex parte communications related to the annexation; and,
® the Board and the City did not comply with the annexation statutes.
We review the law of annexation and our standard of review of such questions.
The City sought approval of tire annexation from the Board by following the procedures set out in K.S.A. 12-521 etseq. According to that law, a city must first seek the approval of the board of county commissioners for such annexation. The statute goes on to establish many procedural requirements that the city and county must follow during the annexation process. These procedures include notice to all affected, including other units of government as well as landowners, and a public hearing, where the board of county commissioners is acting in a quasi-judicial capacity. Ultimately, the board must consider the impact of approving or disapproving the annexation and malee written findings of fact and conclusions concerning whether annexation would cause manifest injury to the landowners, nearby landowners, and the city. K.S.A. 12-521(c). In fact, K.S.A. 12~521(c) lists 14 specific factors the board must consider when making its decision.
When reviewing a county’s decision about such a proposal, this court must determine whether, as a matter of law, the board of commissioners (1) acted fraudulently, arbitrarily, or capriciously; (2) issued an order supported by substantial evidence; and (3) acted within the scope of its authority. Baggett v. Board of Douglas County Comm’rs, 46 Kan. App. 2d 580, Syl. ¶ 2, 266 P.3d 549 (2011). However, this court cannot substitute its judgment for that of the board members who act as the elected representatives and were able to observe and hear testimony. The determination whether a board acted arbitrarily or capriciously depends entirely on whether the board’s conclusion with regard to manifest injuiy was based upon substantial evidence.
The Board issued its decision on February 21, 2008. Because this decision was made before the 2009 amendments to K.S.A. 77-621 became effective on July 1,2009, we must employ the standard of review set forth at K.S.A. 77-621(c)(7). See Baggett, 46 Kan. App. 2d at 585. This means we review the Board’s determination for evidence “that is substantial when viewed in light of the record as a whole.” K.S.A. 77-621(c)(7). Substantial evidence to support a quasi-judicial finding is defined as evidence that possesses both relevance and substance and furnishes a substantial basis of fact from which the issues can reasonably be resolved. Baggett, 46 Kan. App. 2d at 585.
Finally, the test we apply to municipal actions is one of substantial compliance with the annexation statutes. Substantial compliance means compliance with respect to the essential matters necessary to assure every reasonable objective of the annexation statutes. City of Lenexa v. City of Olathe, 233 Kan. 159, 164, 660 P.2d 1368 (1983). On appeal, it is not the function of this court to reweigh the evidence. This court must only concern itself with the evidence which supports the findings below and not evidence which might have supported contrary conclusions. Baggett, 46 Kan. App. 2d at 585.
The Board did not lose jurisdiction to make this annexation decision because it left the record open.
The No Coalition argues this annexation order by the Board is void because it did not act in a timely fashion. The group argues the Board adjourned the October 30, 2007, public hearing “sine die” — so it had only 7 days from that date to render a decision. But the Board did not render a decision until February 21,2008— clearly more than 7 days after the October 30 hearing. Two reasons compel us to reject this argument. First, we are not convinced the Board adjourned sine die on October 30 because the Board left the record open, allowing further public comment and it considered additional information submitted during this extension of time. Second, even if the No Coalition had shown the October 30 meeting was adjourned sine die, they have not demonstrated as a matter of law that the failure to issue a judgment within 7 days renders their decision void for lack of jurisdiction. We consider a question of jurisdiction to be a matter of law over which we exercise plenary review. Max Rieke & Bros., Inc. v. Van Deurzen & Assocs., 34 Kan. App. 2d 340, 343, 118 P.3d 704 (2005).
The focus of this argument is on language used in the annexation statute itself. K.S.A. 12-521(d) states the “board of county commissioners shall render a judgment [on a proposal for annexation] within seven days after the [public] hearing has been adjourned sine die.” (Emphasis added.) No Kansas case has addressed what it means to adjourn a public meeting on an annexation proposal “sine die.”
The record discloses that near the end of the public hearing, someone asked when the Board would meet to consider the annexation issue. The Chairman of the Board responded that it could be done at a regular or special meeting. When asked whether a meeting had been scheduled, the Chairman explained that the Board had not scheduled anything and stated:
“What we know from this point is: we’ll take this input; we’ve currently scheduled the record to close on the 30th; depending on what occurs between now and the 30th, we may open and extend that time. So I can’t tell you what date. If the record stays as is, it will close on the 30th, we will be then making a decision within seven days. If that’s a normal Board meeting, that would be the meeting of the sixth of December. If there’s a special Board meeting set, then we would have to publish that, and we’ll give you that notice.”
The Chairman then declared the meeting “Adjourned.”
Indeed, Black’s Law Dictionaiy 47 (9th ed. 2009) defines “adjourn sine die” as ending “a deliberative assembly’s or court’s session without setting a time to reconvene.” And here, there has been no claim (nor is there any evidence) that the Board set a time to reconvene after the October 30, 2007, public hearing. We note that this term is often used with the closing of the legislature’s sessions and means it will no longer deliberate until the body is reconvened by operation of law. In other words, the body has finished its work until the law compels it to meet again. For purposes of this annexation statute, we take that term to mean drat time when the board will no longer take evidence on the annexation matter. That definition does not fit with the facts here.
To the contrary, it seems the Board made a conditional adjournment. A conditional adjournment is a term defined in the same annotation as the definition of adjournment sine die in Black’s Law Dictionaiy 47 (9th ed. 2009). It is “[a]n adjournment that does not schedule another meeting, but provides for reconvening the assembly at an officer s or board’s call or under other defined circumstances.” (Emphasis added.)
Those circumstances calling for the Board to reconvene were made clear by the Board here. Even though the Board did not set a date to reconvene on the annexation matter, the Board stated that the annexation proceeding would remain open for further submission of information to the record. In fact, it was explained in three separate instances at the meeting that the record would close on November 30, and the Board would make its decision within 7 days of that date. The Chairman did not use the phrase “sine die” when adjourning tire October 30 meeting, but only stated the meeting was adjourned.
When the district court looked at this issue, it concluded the Board did not adjourn the public hearing sine die on October 30, 2007, but expressly held the record open for further submission to the record. We agree with the district court.
The Board leaving the record open could not have been a surprise to the No Coalition. At both the start and end of the October 30 hearing, the Chairman explained that the record would remain open until November 30,2007, at 5 p.m., and that correspondence, comments, and information could be submitted to the record until then. No person at the public meeting objected to this procedure. And the No Coalition does not claim that an objection was made either at or after the meeting.
To the contrary, the No Coalition took advantage of the procedure suggested by the County. Orr, who represented the No Coalition, submitted to the record on February 15, 2008, a 46-page document which included proposed findings, conclusions, authorities, and other documents. Several members of the No Coalition thanked the Board for allowing additional time to submit information to the record after the public hearing. Also, they appeared at subsequent Board meetings and presented information on the No Coalition’s position. Two of the No Coalition members sent a letter to property owners of the annexed area urging them to engage in a letter-writing campaign to the Board prior to the close of tire record on November 30.
In addition, the No Coalition’s first amended notice of appeal stated, “The Board adjourned the matter sine die on Febmary 15, 2008 at 5:00 p.m.” (Emphasis added.) It was not until the Plaintiff s second amended petition that tire No Coalition changed their position and began to allege the meeting was simply adjourned. Although not in the annexation context, our Supreme Court has said that parties on appeal may not complain of matters to which it consented or take advantage of error that it invited or in which it participated. Hawkinson v. Bennett, 265 Kan. 564, 590, 962 P.2d 445 (1998).
In a similar vein, the No Coalition has not shown the Board failed to substantially comply with any essential matter in this proceeding, as the No Coalition clearly benefitted from the opportunity to submit additional information to the record and participate in Board meetings. See City of Lenexa, 233 Kan. at 163-64. Clearly, one of the objectives of the annexation statute is for the public to have the opportunity to express to the Board their views on the annexation proposal. The No Coalition certainly had ample opportunity here to submit their views.
The No Coalition’s argument that the Board was required to continue the hearing for good cause under K.S.A. 12-521(b) is also unpersuasive. K.S.A. 12-521(b) provides that the public hearing shall be fixed on a date that falls 60-70 days after the petition for annexation was presented. The remainder of the subsection describes the notice requirements as they pertain to the public hearing. The last sentence states that the board may, for good cause shown, “continue the hearing beyond the time specified in the notice without further publication.” K.S.A. 12-521(b).
We do not believe that provision of the statute applies here. The Board did not continue the hearing. Instead, the Board simply allowed the record to remain open for a period of time and set no date for further public meetings. Second, the statutory provisions relate mostly to notice. The sentence, which is placed in the section regarding notice requirements, gives the Board authority to continue the public hearing without further notice to the public (via publication). This brings us to our third observation.
The statute does not state, as the No Coalition claims, that in order to continue the public meeting, a motion must be made, the Board must take a vote, and the Board must show proof of good cause. In fact, the annexation statutes contain no specific procedure for granting continuances. When statutes are plain and unambiguous, this court will not read a statute to add something not readily found in the statute. Matjasich v. Kansas Dept. of Human Resources, 271 Kan. 246, 252, 21 P.3d 985 (2001).
On this note, tire No Coalition asks this court to take judicial notice of Exhibit 107, the Rules of Order of Johnson County. The No Coalition argues these rules confirm that Board action, such as the grant of a continuance, required a motion, a second, and a statement by the Chairman. However, the No Coalition does not mention the district court’s ruling that certain exhibits proposed by the No Coalition, including Exhibit 107, were “outside the permissible scope of review by the Court.” Because the No Coalition has not appealed this evidentiary ruling, the No Coalition cannot rely on the exhibit on appeal. See Board of Lincoln County Comm’rs v. Nielander, 275 Kan. 257, 268, 62 P.3d 247 (2003).
The No Coalition also argues that keeping the record open is not the same as holding a public hearing, and if allowing people to send letters or make presentations equates to having a public hearing, tiren all statutes requiring public hearings are meaningless. But the No Coalition fails to acknowledge that tire Board did hold a public hearing as required by statute. The No Coalition cites no authority indicating it was entitled to something more.
The No Coalition also notes the Board later passed a resolution to continue the public hearing process — suggesting the Board knew it had made a mistake by not formally continuing the hearing. The group is apparently speaking of the Board’s November 15 resolution extending the time for submitting information to the record to February 15, 2008. The No Coalition argument on this point is unpersuasive for two reasons. First, the coalition offers mere speculation about the Board’s intentions — as their allegation is not supported with any citation to the record. Second, the Board’s explanation for its actions is a more likely characterization of what occurred. As the Board points out, the November 15 resolution to extend the time for keeping the record open was necessary in order to give public notice of the extension; unlike the November 30 deadline that was announced at the October 30 public hearing, there was no public proceeding at which the extension of time could be announced. In summaiy, the No Coalition has not shown the October 30 meeting was adjourned sine die.
We turn now to the question that if the Board had adjourned sine die, would that mean it had no jurisdiction to render an annexation decision more than 7 days later? In our view, because the 7-day statute is directory and not mandatory, the Board did not lose jurisdiction to decide this matter.
To support their jurisdictional argument, the No Coalition relies upon In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 13, 687 P.2d 603 (1984) in contending: Jurisdiction is conferred upon a county by the express provisions of K.S.A. 12-521, and a board has ho jurisdiction to act upon a petition for annexation unless it substantially complies with the language and purpose of the statute. This is only a general statement regarding the principles of law applicable to annexation proceedings.
City of Shawnee did not address the specific issue raised here— whether a board loses jurisdiction to issue a decision on an annexation proposal if it does not render a decision within 7 days of adjourning a public hearing sine die. The only jurisdictional issues raised in City of Shawnee were (1) whether the appellate court could consider an appeal where the notice of appeal was allegedly untimely; and (2) whether a board had authority to reconsider and modify its prior denial of an annexation petition. 236 Kan. at 9,12. City of Shawnee does not control here.
To the contrary, we find other cases more persuasive. In Expert Environmental Control, Inc. v. Walker, 13 Kan. App. 2d 56, 56-57, 761 P.2d 320 (1988), the Kansas Department of Health and Environment failed to issue an order within 30 days of an administrative hearing as required by statute, but issued its order after 154 days. On appeal, the party against whom the order was sought argued the order was void for lack of jurisdiction. 13 Kan. App. 2d at 57.
This court disagreed, holding the 30-day statutory time limit was not mandatory, and the agency’s failure to render a timely order did not deprive the agency of jurisdiction. The court explained:
“ ‘In determining whether a legislative provision is mandatory or directory, it is a general rule that where strict compliance with the provision is essential to the preservation of the rights of parties affected and to the validity of the proceeding, the provision is mandatory, but where the provision fixes a mode of proceeding and a time within which an official act is to be done, and is intended to secure order, system and dispatch of tire public business, the provision is directory.’ Paul v. City of Manhattan, 212 Kan. 381, Syl. ¶ 1, 511 P.2d 244 (1973).” 13 Kan. App. 2d at 58.
The Walker court noted that in Paul, the Supreme Court identified two factors that aid in determining whether a statute is mandatory:
“ ‘Factors which would indicate that a statute or ordinance is mandatory are: (1) the presence of negative words requiring that an act shall be done in no other manner or at no other time tiran that designated, or (2) a provision for a penalty of other consequence of noncompliance.’ 212 Kan. 381, Syl. ¶ 2.” 13 Kan. App. 2d at 58.
After examining those factors, the Walker court concluded that agency delay did not deprive KDHE of jurisdiction or render its order void, noting the 30-day time limit was only a procedural requirement that was directory in nature and intended to secure order, system, and the dispatch of public business. 13 Kan. App. 2d at 58.
Likewise, the 7-daytime limit of K.S.A. 12-521(d) is aprocedural requirement that is directory in nature. K.S.A. 12-521(d) contains no negative words requiring that a judgment could not be rendered at any other time and contains no penalty or consequence of noncompliance. The requirement appears only to fix a mode of proceeding with the annexation process in order to secure the timely dispatch of public business.
Because the 7-day requirement is directory, not mandatory, the Board’s failure to issue a judgment on the annexation petition within 7 days of the public meeting would not have rendered the Board’s judgment void for lack of jurisdiction — even if the meeting had been adjourned sine die.
For their final jurisdiction contention, the No Coalition argues the Board’s decision exceeded its own jurisdiction because it required the City to enter an unspecified, future agreement with Aubry Township. The No Coalition argues that because a county loses jurisdiction over an order once it makes its final decision, there was no way for the County to enforce a future agreement with Aubry Township — so the decision was ultra vires and void.
Even so, when examined in light of all of the annexation statutes, any annexation authorized under K.S.A. 12-521 is conditional. After all, the legislature has obliged the Board, through die requirements of K.S.A. 12-531, to review a city’s compliance with its service extension plan 5 years after approval of the annexation. In cases of noncompliance with the plan, tire Board could order the land “de-annexed.” With such authority granted by the legislature, the fact that the Board here required the City to later reach an agreement with Aubiy Township is hardly ultra vires.
The No Coalition’s argument on this point is not supported with legal analysis or citation to authority. Our Supreme Court has ruled that when a litigant fails to press a point by supporting it with pertinent authority, he waives or abandons the issue. McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 (2002). Thus, we deem the No Coalition has abandoned this argument.
We hold the Board did have jurisdiction to render a decision in this case.
The evidence supports the Board’s decision.
At this point, we turn to the coalition’s claims that the evidence did not apply to the area actually annexed, the Board considered the wrong plan, and the district court applied an incorrect standard of review. Our standard of review of such questions is straightforward. This court must review the Board’s determination for evidence “that is substantial when viewed in light of the record as a whole.” K.S.A. 77-621(c)(7). Moreover, it is not the function of this court to reweigh the evidence. This court must only concern itself with the evidence which supports the findings below and not evidence which might have supported contrary conclusions. Baggett, 46 Kan. App. 2d at 585. Finally, when the district court has made findings of fact and conclusions of law, this court determines whether those findings are supported by substantial competent evidence and are sufficient to support the conclusions of law. Banzer v. City of Wichita, 237 Kan. 798, 802, 703 P.2d 812 (1985).
Wrong area
The No Coalition complains that “crucial” facts that were submitted pertained to the entire area proposed for annexation (i.e., 14.95 square mile area), but those facts were not relevant to the smaller area that was actually annexed. For example, they say the City never provided cost data and tax revenue data for the areas actually annexed, and the only data provided on this point pertained to the entire area proposed for annexation. The group argues that under K.S.A. 12-521(a)(2) and (c)(7) and (8), the cost of annexation must be disclosed. We hold a different view. The City substantially complied with the law, and it was not required to submit new information limited to each of the five areas created by the Board in its approval. In other words, information pertaining to the entire area is sufficient.
It is important to examine the Board’s decision before going further. The Board stated that in determining whether all or part of tire proposed annexation should be approved, it considered the proposed annexation area “both as a whole and in identifiable parts.” The Board identified five separate areas within the proposed annexation area that had common characteristics and could readily be considered as individual areas — Area 1, Area 2, Area 3, Area 4, and Area 5. The Board then made 14 general findings (labeled a through n) that pertained to “the area as a whole.” These findings were labeled in a manner nearly identical to the 14 criteria set forth in K.S.A. 12-521(c).
Notably, K.S.A. 12-521(c) states that upon holding the public hearing, the board shall make written findings of fact and conclusions determining whether the proposed annexation “or the annexation of a lesser amount of such area” causes manifest injury to the owners of the land proposed to be annexed or manifest injury to the owners of nearby land or the city if annexation is disapproved. The statute provides:
“In determining whether manifest injury would result from the annexation, the board’s considerations shall include, but not be limited to, the extent to which the following criteria may affect tire city, the area to be annexed, the residents of the city and the area to be annexed, other governmental units providing services to the area to be annexed, die utilities providing services to the area to be annexed, and any other public or private person, firm or corporation which may be affected Üiereby:
“(1) Extent to which any of the area is land devoted to agricultural use;
“(2) area of platted land relative to unplatted land;
“(3) topography, natural boundaries, storm and sanitary sewers, drainage basins, transportation links or any other physical characteristics which may be an indication of the existence or absence of common interest of the city and the area proposed to be annexed;
“(4) extent and age of residential development in the area to be annexed and adjacent land within the city’s boundaries;
“(5) present population in the area to be annexed and the projected population growth during the next five years in the area proposed to be annexed;
“(6) the extent of business, commercial and industrial development in die area;
“(7) the present cost, mediods and adequacy of governmental services and regulatory controls in the area;
“(8) the proposed cost, extent and the necessity of governmental services to be provided by the city proposing annexation and the plan and schedule to extend such services;
“(9) tax impact upon property in die city and die area;
“(10) extent to which the residents of the area are direcdy or indirecdy dependent upon the city for governmental services and for social, economic, employment, cultural and recreational opportunities and resources;
“(11) effect of die proposed annexation on die city and other adjacent areas, including, but not limited to, other cities, sewer and water districts, improvement districts, townships or industrial districts and, subject to the provisions of K.S.A. 12-521a, fire districts;
“(12) existing petitions for incorporation of the area as a new city or for the creation of a special district;
“(13) likelihood of significant growdi in the area and in adjacent areas during die next five years; and
“(14) effect of annexation upon the utilities providing services to die area and the ability of those utilities to provide tiiose services shown in the detailed plan.”
Here, the Board set forth a separate section for each of these criteria and discussed the evidence presented on each point. This evidence pertained to. the area proposed for annexation as a whole — not to the five separate areas identified by the Board. Some sections of the ruling amounted to a few sentences, while other sections extended to more than a page of discussion.
Then, the Board set forth its findings with regard to the factors in K.S.A. 12-521a, which deals with fire protection. Notably, K.S.A. 12-521a states:
“When determining the effect of a proposed annexation on a fire district or a portion of a fire district, considerations by the board of county commissioners shall include, but not be limited to, the:
“(a) Response time of the city and the fire district to the area proposed to be annexed;
• “(b) impact on the fire district from the decrease in its tax base if die annexation is -approved;
“(c) impact on the city’s provision of fire service if the annexation is disapproved;
“(d) impact on the residents of the area if the annexation is approved; and
“(e) impact on the remainder of the fire district if the annexation is approved.”
The Board set forth a separate section, highlighting the relevant evidence with regard to each of these five factors. This evidence also pertained to the area proposed for annexation as a whole.
Finally, the Board made specific findings with regard to each of the five separate areas it identified. For Area 1, the Board made 9 findings. For Area 2, the Board made 8 findings. For Area 3, the Board made 9 findings. For Area 4, the Board made 7 findings. For Area 5, the Board made 8 findings.
We view these findings as a result of the Board sitting in a quasi-judicial fashion. For example, in the Board’s examination of areas 4 and 5, the Board noted both areas had mostly larger tracts of land. Some tracts were 80 or 160 acres. Both areas required 10 acres minimum for a home site, in contrast with areas 1, 2, and 3 which could be characterized as mostly urban fringe properties. In areas 4 and 5, sewer service was not expected for a minimum of 3 years and up to 17 years for other parts of the two areas, in marked contrast with the other three'areas that all had sewer service of some type. Furthermore, the City of Spring Hill considered part of area 5 to be in its growth area. Also, that area included some of the Spring Hill school district and the Spring Hill recreation district. All of these appear to be excellent reasons for denying the annexation petition for those two areas. That reasoning does not mean the Board’s findings covered the wrong area as the coalition contends.
It is true that the Board did not discuss each of the 14 factors set forth in K.S.A. 12-521(c) and each of the 5 factors set forth in K.S.A. 12-521a with regard to each of the five areas. However, for each area the Board discussed some of the factors. For example, with regard to Area 1, the Board mentioned the unincorporated portion of the area, how the area bordered with the city, how the area was subdivided and platted, the present population, how the land was zoned, and the Fire District’s agreement to provide services to the area, the availability of sewer facilities, and the nature of the area.
When the district court dealt with this subject of substantial evidence, the court concluded that the record, “which consisted] of 10 volumes of over 3,000 pages of written reports, hearing minutes and other documentation,” demonstrated the Board substantially considered the K.S.A. 12-521(c) criteria when approving the annexation in part. With regard to Areas 1 through 5, the court stated: “The Board acted reasonably and in compliance with the statute in considering the proposed annexation area as 5 areas and made adequate findings related to each area. The findings of the Board as to each area were supported by substantial evidence in the record.” Nothing in the record on appeal leads us to disagree with the district court’s conclusion on this point.
The flaw with the No Coalition’s argument on this point is that it is unsupported by the annexation statutes or Kansas case law. K.S.A. 12-521(c) approves annexation of the area proposed for annexation “or the annexation of a lesser amount of such area.” K.S.A. 12-521(d) states that if a majority of the Board concludes that annexation “or any part thereof’ should be allowed, the Board shall grant the annexation by order. The annexation statutes clearly contemplate a situation such as dais one, where tire Board grants an annexation in part. No provision of the statutes state the City must provide an amended plan or amended information in the event that a partial annexation is being considered by the Board, or if it is actually granted.
Further, no provision of the annexation statutes indicates that if an annexation is granted in part, the Board must have separate information pertaining only to the area it decides should be annexed. And no law requires the City to provide such segregated information in its proposal or plan. Instead, in discussing the City’s required plan for the extension of services, Kansas law refers to the extension of services to the area “proposed to be annexed.” K.S.A. 12-520a(a)(3). And, when stating the City must prepare a report setting forth its plan for extension of services — -and the requirement that the report contain the estimated cost of providing services — Kansas statues refer to the area “proposed to be annexed.” K.S.A. 12-520b(a)(l) and (2). Clearly, the City is only required by statute to provide information pertaining to the entire area proposed for annexation.
If we were to adopt the view of the No Coalition on this point, the City would need to submit multiple annexation plans with various combinations of segregated data in order to cover the many possible combinations the Board could approve. Certainly, the legislature would have stated such a requirement had it intended to make one. See Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607-08, 214 P.3d 676 (2009).
The No Coalition does not claim the City failed to provide any particular information as it pertains to the area proposed for annexation as a whole, so we must presume this information was properly provided. And tire Board’s decision reflects that it did, in fact, consider some of the statutory factors as they related to the smaller area actually annexed. In light of the extensive amount of information and data before the Board and its thorough analysis of each factor it must analyze when considering an annexation, we conclude, as did the district court, that substantial evidence supports the Board’s approval of this annexation of just part of the land.
Refinements made to the service extension plan offered by the City did not make it the wrong plan as the No Coalition contends.
The No Coalition next argues the City’s plan changed so many times that the Board based its ruling on the wrong plan. The group says the Board’s decision cited information obtained from tire City’s August 20, 2007, plan — but that plan was amended many times to reflect different information. In tire No Coalition’s view, this continuous amendment to the plan by tire City made meaningless the statute that requires the City to attach a service extension plan to the annexation petition. We are not persuaded by this contention because the No Coalition’s view of what constitutes a plan is too narrow.
Under the statutory scheme at play here, the plan the City was required to present to the Board is simply a written proposal that sets out how it intends to extend municipal services to the area to be annexed. K.S.A. 12-521(a)(2) requires the plan to have sufficient detail so that it provides a reasonable person a full and complete understanding of the intentions of the city on how it is going to extend each service to the annexed area. It must also estimate the costs for extending such services.
The No Coalition claims the Board cited outdated evidence with regard to the cost of governmental services — noting the Board referred to the City’s original plan for the proposed cost of such services, but corrected cost information was provided in later submittals. But the No Coalition fails to point us to this corrected cost information in the record. Under Supreme Court Rule 6.02(d) (2011 Kan. Ct. R. Annot. 39), any material statement made in an appellant’s brief that is not keyed to the record on appeal may be presumed to be without support. See Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 777, 27 P.3d 1 (2001). Because the No Coalition’s claim is not supported with citation to the record, the claim fails.
The No Coalition next says the Board’s decision differed from updated information in terms of cost and revenue numbers. Specifically, the group claims the Board’s decision cites total operating costs of $625,000 for 2008, net operating costs of $446,610 for 2008, and decreased net operating costs of $218,035 for 2009 due to receipt of taxes and other fees. But according to the No Coalition, plan changes that were allegedly distributed at the October 30, 2007, public hearing indicated actual revenues would be $599,050 and net operating costs would be $531,825.
The No Coalition correctly cites the numbers. Although the City’s original plan estimated net operating costs of $218,035 for 2009, the City’s amended numbers indicated net operating costs of $531,825 for that year. This is obviously a substantial difference.
Nevertheless, this court cannot conclude the Board’s decision was not supported by substantial evidence based on this one, albeit large, variance between estimates. It is important that an estimate was given and an updated estimate with more accurate figures is desirable for decision makers and the public as well. K.S.A. 12-521(a)(2) merely requires that the City provide an “estimated cost” of providing services to the annexed area. Under K.S.A. 12-521(c), the Board must make findings of fact and conclusions on the annexation proposal “based upon the preponderance of evidence presented to the board.” And as the Board points out on appeal, the City’s plan was not the only evidence submitted to the Board.
The Board had several thousand pages of evidence before it, including documents and testimony. In its decision, the Board stated it has considered the “entire record of proceedings,” including the petition for annexation and service extension plan, the testimony and comments heard at the October 30 meeting, the responses for requests for information made by the Board, the written comments of residents and members of the public, supplemental information provided by the City and the City of Spring Hill, and information provided by the No Coalition attorney Orr. As we have noted, it is not the function of this court to reweigh the evidence; we are concerned only with the evidence which supports the findings made below and not the evidence which might have supported contrary conclusions.
We find no merit in the group’s final argument on this point— that the City’s failure to provide a plan that includes evidence relevant only to a partial annexation renders the statutory, 5-year annexation review requirement impossible. See K.S.A. 12-531(a).
The City set forth a timetable for extending municipal services in its August 20, 2007, plan. The table indicates the City and County would immediately provide street, bridge, and storm drainage maintenance, for example, to the annexed area. At the time of any mandated statutory review, the Board could hear testimony, as permitted under K.S.A. 12-531(b), on whether the City has followed through with providing services such as these.
The effect of the district court’s comment is exaggerated by the No Coalition.
Next, die No Coalition contends the district court applied die wrong standard when it ruled the City’s evidence must not be relevant to the annexation actually granted. The context of this statement is important here. In response to the No Coalition’s arguments about the evidence pertaining to the wrong area, the district court stated:
“No Coalition asserts that the defendants failed to substantially comply with the annexation statutes because the proposed services plan was not germane to the area approved for annexation. However, K.S.A. 12-521 allows the board to approve a portion of the proposed annexation and does not require an amended proposed services plan be presented to the board. The plan must simply provide estimates of anticipated costs, and need not be amended to provide the board with better estimates once additional information has been obtained.
“As the Court ruled in its March 31 Journal Entry, the defendants substantially complied with the annexation statutes. The plan provided the statutorily required information and must not be germane to the area approved for annexation.” (Emphasis added.)
Focusing on the italicized words, the No Coalition argues to us that the district court’s statement means that any annexation plan, such as an annexation plan for the City of Salina, for example, could have been used to support the annexation in this case.
This argument greatly exaggerates the district court’s ruling and is unpersuasive. When read in context, it is clear that the district court’s statement responded only to the No Coalition’s argument that the Board must have segregated evidence regarding the area actually annexed. The district court did not suggest that data derived from any property located in the state of Kansas could be used to support the proposed annexation in this case, but merely indicated that the data pertaining to the proposed annexation could support the grant of a partial annexation.
We find no procedural due process errors.
The No Coalition next contends the annexation is void because their members’ due process rights were violated in two ways: (1) the City made numerous modifications to its original plan, but the County held no public hearings at which landowners could address the City’s new information; and (2) the County, the City, and the Fire District engaged in ex parte communications regarding the annexation. The question of what process is due in a given case is a question of law over which an appellate court has unlimited review. State v. Wilkinson, 269 Kan. 603, 608-09, 9 P.3d 1 (2000). Our review of the record compels us to hold there was no deprivation of due process here.
When dealing with questions such as these, the court must first determine whether a protected liberty or property interest is involved, and if so, the nature and extent of the process due. Winston v. Kansas Dept. of SRS, 274 Kan. 396, 409, 49 P.3d 1274 (2002). Here, die No Coalition is correct that they had some due process rights in the annexation proceeding. In In re Petition of City of Overland Park for Annexation of Land, 241 Kan. 365, 370-71, 736 P.2d 923 (1987), our Supreme Court explained that the full rights of due process present in a court of law do not automatically attach to a quasi-judicial proceeding such as an annexation proceeding. Nevertheless, a fair reading of that opinion leads to the conclusion that the basic elements of procedural due process of law — notice and an opportunity to be heard at a meaningful time and in a meaningful manner — do apply in annexation proceedings. Thus, we must decide whether the No Coalition was given adequate notice and an opportunity to be heard at a meaningful time and in a meaningful manner throughout the annexation proceedings.
We turn first to the questions raised by the many additions and corrections made to the plan before the annexation was granted in part. We find the group had adequate notice and an opportunity to be heard.
The No Coalition does not claim the group had no notice of the October 30, 2007, public hearing or the information distributed prior to that meeting. Instead, the group complains about the in formation distributed at the hearing and later. Further, the group does not claim it had no notice that the City submitted new information or that it was unable to access it, but only that the information “dramatically altered” and “re-wrote” the City’s original plan. From this, the No Coalition concluded they were entitled to another public hearing at which it could address the new information.
The problem with this argument is that the group fails to provide any legal authority that requires a public hearing every time an annexation record is supplemented with additional information. Instead, the annexation statutes contemplate only a single public hearing. The statutes refer to “the public hearing.” (Emphasis added.) See K.S.A. 12-521(b). Simply put, the No Coalition has not shown it was entitled to more than one public hearing. Moreover, there is no evidence it was denied public hearings, as it claims in its brief. The group points to no instance in which it requested a public hearing and that request was denied.
Further, there is no Kansas statute that prohibits the Board from allowing the City and members of the public to submit information to the record after the public hearing. The Board’s ultimate decision should be “based upon the preponderance of evidence presented to the board.” K.S.A. 12-521(c). The annexation statutes do not state when or where this other evidence must be obtained and do not indicate that the City’s original information cannot be supplemented, corrected, and updated. Particularly where the No Coalition had access to all submissions of information via the County’s website, the No Coalition cannot show their due process rights were violated.
Clearly, the No Coalition cannot claim they had no opportunity to respond to any information submitted to the record. The record demonstrates quite the opposite. Even if, as the No Coalition says, the City presented changes that consisted of “hundreds of pages of information” at the October 30, 2007, public hearing, it does not explain why it had “no opportunity to read and consider” the new information. Orr, Pishny, and the Matties all spoke at the meeting. The record remained open for 3V2 months following this meeting, giving the No Coalition plenty of time to access and re spond to any of the information presented at the meeting. In fact, the No Coalition did respond.
After the October 30 meeting, tire No Coalition and other members of the public wrote emails to the Board, appeared at regular Board meetings, and presented information on their position. And on February 15, 2008, the final day for submitting material to the record, Orr submitted a 46-page document on behalf of the No Coalition that included proposed findings, conclusions, authorities, and other documents. The No Coalition cannot legitimately argue they did not have ample opportunity to be heard on this annexation.
In its brief, the No Coalition specifically complains about the City’s submissions to the Board made on February 12, 2008, and February 15, 2008. First, the No Coalition says the City’s Februaiy 12, 2008, submission contained modifications that were made “far too late” for them to have notice or an opportunity to be heard on the information. The No Coalition says these changed the original plan “beyond recognition,” into a totally different creature.
The No Coalition says the City’s February 12 submission “explicitly changed” the plan, and that platting and population trends changed but the No Coalition fails to identify the exact changes. From the brief, this court could assume the City’s population estimate simply changed from 105,000 to 105,001. The No Coalition tends to use many colorful phrases when describing the alleged changes, such as “morphed beyond recognition,” “totally different,” and “massive amounts,” but does not really articulate what actually changed and how the changes affected tire outcome. This court therefore cannot conclude that the Februaiy 12, 2008, submission contained changes that deprived the No Coalition of the opportunity to fairly respond.
The other problem is that the No Coalition, through its attorney Orr, did respond to the City’s Februaiy 12 and 15 submissions. The group argues the Board ignored this submission but the record does not clearly disclose that. That is a conclusion of die group that is based upon an inference.
After the record closed on Februaiy 15, 2008, Orr wrote the Board a letter dated February 19, 2008, commenting on the City’s “last-minute submission of a new proposal for fire protection, and with the hope that the public can comment on any information the City submits . . . .” The letter addressed many of the group’s concerns about the fire protection issue. The No Coalition cannot legitimately argue it had no opportunity to address tire City’s final submissions to the record. The group contends the Board ignored this last letter but do not show us any proof of that allegation.
Second, the No Coalition says the City’s February 15,2008, submission to the record “radically altered” tire City’s original plan. But the group fails to articulate what actually changed as a result of the submission. For example, the No Coalition says the City’s “last-minute submittals changed the cost of the annexation by at least $3,928,000,” but fail to cite the record for support. The No Coalition also says the City materially changed the net tax impact on residents, but does not identify the amount of change or cite the record for evidence. The No Coalition claims the City’s final two submissions were so late they could not be scanned and posted to the County’s website “in time to impart notice” to the No Coalition, but again fail to support this claim with evidence from the record. In reality, the record contains no evidence regarding the exact time the February 15, 2008, submission was made, nor does it contain evidence regarding what time any documents were posted on the County website — or what was actually posted. And significantly, the No Coalition neglects to mention it also (via Orr) submitted a 46-page document to the record on February 15,2008.
In addition, we note the Board found that the property tax levy would actually decrease because the fire protection levy assessed by the City was considerably smaller than the levy imposed by the Fire District. Along the same line, the contract between the City and the fire district was proposed at the October meeting and finalized before the public comment period expired. This meant the Board had real figures to deal with and not just an estimated proposal. When making decisions, it is better for a board that is acting in a quasi-judicial matter to deal with accurate figures than gross estimates.
In response to these claims, the Board says the No Coalition “greatly misrepresents” the information submitted on February 12 and 15. The Board claims most of the documents submitted at that time were copies of documents that had previously been submitted or minutes of meetings and resolutions. The No Coalition does not challenge this contention in its reply brief.
The problem with the No Coalition’s argument remains. This controversy when it was considered by the Board was not a civil suit where parties are entitled by law to complete discovery of information. It was, rather, a governmental board seeking information, weighing that information and making a decision about the advisability of proceeding with annexation. Even if the City supplemented the record in a manner that significantly changed the information they initially provided in its report and plan, the No Coalition has not demonstrated this is contrary to law or that it was unfair under the facts of this case. It was up to the Board to sort through all the information submitted to the record, then consider and weigh this evidence, and render a decision that would “insure the orderly growth and development of the community.” See K.S.A. 12-521(c). As long as the No Coalition had access to this information and it was able to respond to the information — and here, it did — it cannot demonstrate it had no opportunity to be heard. Even if the City’s data was in a constant state of flux, the No Coalition has not shown that the Board did not adequately assess the information before it and come to a reasonable decision.
The No Coalition has not demonstrated it was not given notice and an opportunity to be heard at a meaningful time and in a meaningful manner on the information submitted by the City.
Allegations of secret meetings and brokering of deals with the fire district are unsupported.
The No Coalition next argues their rights to due process were violated by “secret meetings” held regarding the fire services contract. The group claims Johnson County gave the City “private instructions” about its wishes and concerns regarding the fire services contract, and therefore “brokered” the contract between the City and Fire District.
Proof of the Board’s involvement in these alleged ex parte communications is imperative if the No Coalition is to persuade us on this point. The Dictionary of Modem Legal Usage describes “ex parte” proceedings as those involving only one party, p. 340 (Garner, 2nd ed. 1995). Because the City and Fire District are not parties to this proceeding, the No Coalition must show the Board was involved in the communications.
There is some evidence that suggests Johnson County officials were communicating with the City and Fire District about some concerns. For example, at a Board meeting, a Board member spoke about “the direction” the County had given with regard to the negotiations between the City and Fire District. The No Coalition cites numerous instances in which the City’s attorney referred to concerns and wishes expressed by the County — which the No Coalition says suggests the County was “dealing behind the scenes” with the City and Fire District. On appeal, the Board actually acknowledges a meeting among the attorneys for the City, Johnson County, and Fire District in which it says the County’s attorney asked for “clarification” with regard to the fire services agreement.
Despite this, the No Coalition has not shown how these alleged communications between the County and City deprived it of notice or the opportunity to be heard. In the end, the fire services agreement was negotiated between the City and Fire District — two governmental entities — and was included in the record, which made it available for inspection by members of the public and the Board. And after the “Option 6” contract was added to the record, the No Coalition (via Orr) wrote the Board in response to the City’s “last-minute” negotiations with the Fire Department. The No Coalition was able to address its concerns about the agreement.
Going further, the No Coalition fails to acknowledge that the wishes and concerns apparently expressed by the Board to the City actually benefitted the County and the No Coalition’s positions. For example, the County complained that the compensation the City offered to pay the County was inadequate and the agreement did not address a partial annexation. On appeal, the No Coalition does not say how, as a result of these alleged ex parte communications, the fire services agreement harmed it. The No Coalition says the ex parte communications “profoundly changed” the annexation plan “to the tune of millions of dollars” but fails to support this statement with facts from the record. The No Coalition has not demonstrated its due process rights were violated as a result of alleged ex parte communications.
For its second claim, the No Coalition says the County’s procedure for communicating with it was “inconsistent and chaotic at best, and in fact facilitated or even legitimated off-the-record exchanges of information.” This claim is also unpersuasive.
Initially, we point out that the No Coalition has not shown any individual was unable to communicate with or contact the Board or unable to contribute information to the record as a result of the “chaotic” procedure followed by the Board. At the October 30, 2007, public hearing, the Chairman of the Board explained that if anyone wished to have correspondence included in the official record, he or she must submit the information no later than November 30 to the Board of County Commissioners, to the Clerk’s attention. The Chairman also explained that people could add information to the record, contact Commissioners, or participate in the public comment portion of Board meetings. Many members of the public, including the No Coalition, successfully added information to the record, contacted Board members, and spoke at Board meetings. The No Coalition cannot show their due process rights were violated as a result of the procedure.
For its final claim in this area, the No Coalition alleges there were a number of substantive ex parte communications between particular Commissioners and members of the public regarding the annexation.
First, a careful reading of the email exchanges cited by the No Coalition reveal they were not substantive. In one email, Commissioner John Segale thanked the resident for his thoughts and stated he believed his property taxes would decline as a result of the annexation. The email is two sentences long. In another email, Segale again thanked the resident for his thoughts and directed him to the County website. This email is also two sentences long. The only email of considerable length composed by Segale discussed his view of long-term development and community concerns in general. No information contained in the alleged ex parte communications between Segale and private citizens is meaningful.
Second, the record reveals that plaintiff Tom Watson engaged in these alleged ex parte communications himself. As the County points out on appeal, Kansas courts are not receptive to complaints about ex parte communications from those who have also participated in such communications. See City of Overland Park, 241 Kan. at 372.
To summarize, the No Coalition has not shown their rights to due process were violated as a result of ex parte communications concerning the fire services agreement, an inconsistent procedure for communicating with the County, or email communications between Commissioners and persons from the community. We do not see how the No Coalition was deprived of any due process rights. The No Coalition had more than ample opportunity to participate and be heard throughout this annexation proceeding.
We summarily deal with several alleged statutory violations.
Using an unpersuasive scattergun approach, the No Coalition claims 25 separate statutory violations by the City and the Board. Upon closer review of each, it becomes apparent that many of the claims essentially raise arguments that we have already analyzed and rejected. In addition, many of the allegations are duplicates. To help organize the issues for purposes of analysis, we have numbered the allegations 1 through 25.
At this point, it is important to restate our standard of review on these claims. When reviewing an annexation decision, the function of the court is to determine whether the city had statutory authority to act and acted in accordance with that authority. City of Lenexa, 233 Kan. at 163-64. The test of municipality action is one of “substantial compliance” — which means compliance with respect to the essential matters necessary to assure every reasonable objective of the annexation statutes. 233 Kan. at 164.
In allegations 1, 2, 3, 4, 11, 14, and 24, tire No Coalition makes the same argument. The group contends the annexation did not comply with the law because the City’s initial plan changed many times — an argument we have previously addressed and rejected.
In allegations 5 and 6, the No Coalition says the City’s plan must provide the estimated cost of the annexation — and this information was not provided. To tire contrary, die City’s plan did include tables for estimated ongoing operating costs for 3 years, estimated revenues, estimated one-time costs, and costs of capital projects. The plan also had a section titled “Cost Impact on Residents of Area Proposed to be Annexed.” And this section set forth particular costs for residents, such as the cost of cable television services and storm water utility fees. Although the City’s plan may not have discussed all costs and revenues in the detail desired by the No Coalition and may not have reflected changes in the excise tax (as noted by the No Coalition), the City’s information substantially complied with the pertinent statute.
In allegation 7, the No Coalition says the plan must state a method for financing the extension of services, but here the City’s plan did not include items such as the “belated extra millions to the Fire District” and the effect of a partial annexation. In this apples and oranges argument, the No Coalition compares dissimilar items. The method of financing is not the same as the amount of financing. The plan correctly indicated the method of financing fire protection services.
In allegations 8 and 10, the No Coalition claims the required timetable for extension of services fails with regard to fire services. It is unclear what the No Coalition is complaining about here. The City’s plan states that the timetable for extension of fire protection services is immediate. The City’s later negotiations and contract with the Fire District did not change the City’s intent to immediately provide fire services in the event of annexation.
In allegation 9, the No Coalition complains that the City’s plan does not sufficiently address how fire protection services will be maintained. The plan does, in fact, discuss maintenance. Although the plan may not have discussed maintenance in the sort of detail desired by the No Coalition, there was substantial compliance with the statute.
In allegation 12, tire No Coalition says the City failed to give proper notice to the Mackeys. As we noted in our recitation of the facts, notice of the public hearing and the required materials were sent to the Mackeys via certified mail on September 24, 2007. Virginia Mackey signed, acknowledging receipt of this mailing, on September 25,2007, over 1 month prior to the public hearing. The statutory notice requirement was substantially complied with. Frankly, we doubt that the No Coalition has standing to complain about a claimed lack of service on another individual.
Allegations 13 and 22 relate to the No Coalition’s jurisdictional argument, which was previously rejected. Allegation 15 relates to the No Coalition’s due process arguments, which were rejected above. Allegations 16, 17, 18, and 25 pertain to the No Coalition’s arguments that the Board based its decision on the wrong plan, the wrong evidence, and the wrong area — which we have already rejected.
In allegation 19, the No Coalition complains about the statutory requirement that the County consider the tax impact upon the property annexed and the City’s property. For support, the No Coalition sets forth a long list of somewhat disconnected arguments that have either been rejected above or are unsupported with record citations. Suffice it to say the City’s plan included two tax sections titled, “Net Tax Impact on Residents in the Area Proposed to be Annexed” and “Effect of Proposed Annexation” on Aubiy Township, the Fire District, and the County.
In allegation 20, the No Coalition complains that the City’s plan was “woefully lacking” with regard to information about the Fire District. But in fact, the City’s plan included four full pages of discussion about fire protection services and indicated the City planned to negotiate and enter an intergovernmental service agreement with the Fire District. The No Coalition does not really say what information is lacking except to complain about the dollar figures related to a partial annexation.
In allegation 21, the No Coalition alleges the County must consider petitions for incorporation, yet a petition that was presented was never the subject of any public hearing. The Board’s decision, however, discusses the petition for incorporation. Other than saying there was no public hearing or “joint discussion” on the matter, the No Coalition has not shown the Board did not consider the petition.
In allegation 22, the No Coalition renews the previous argument that the County cannot place future conditions upon an annexa tion — an argument rejected above as unsupported with legal authority.
The No Coalition has not demonstrated that the City and Board failed to substantially comply with the annexation statutes. Instead, the voluminous record in this case reflects the City provided a substantial amount of detailed, thoughtful research on the proposed annexation, and the Board properly considered all the information before it.
Conclusion
After examining the record, we can find no fault with what the Board did. This massive decision, with far reaching implications, was made by two elected governing bodies, first the City and then the Board. We will not substitute our judgment for the Board’s. The Board substantially complied with all legal procedures. At the end of the day, this was a decision for the elected Board of County Commissioners of Johnson County, Kansas, to make. We will neither alter it nor set it aside.
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Allen, J.
The essential facts on which the questions presented in this case arise are as follows : On the ninth of August, 1886, Caroline Matthews brought an action in the District Court of Morris County to foreclose a mortgage executed by Daniel B. Jackson and wife on a quarter-section of land in that county. Burt S. Dolloff was made a party defendant. It was alleged in her petition “that defendants, Burt S. Dolloff . . . have or claim to have some interest in, or lien upon said premises, or part thereof, which interest or lien, if any such exists, has accrued subsequently and is subject to plaintiff’s lien thereon under said mortgage.”
Service by publication was duly made, and a judgment rendered for foreclosure of the mortgage and sale of the mortgaged property and barring each and all of the defendants of all right, title and interest in the mortgaged property. In pursuance of this judgment the property was duly advertised, sold, and deeded to Martin McCleery for the sum of $666, which was more than two-thirds the appraised value. The sheriff’s deed was executed on the nineteenth of April, 1887. At the time of the execution of the mortgage under which this sale was made, Burt S. Dolloff in fact held the paramount title to the land. His title was prior and superior to that of Jackson, the mortgagor. He had no actual notice of the pendency of the suit. After the execution of the sheriff’s deed to him, Martin McCleery and his wife executed to the Central Kansas Loan and Investment Company a mortgage, which the plaintiff in error sought to foreclose in this action. The mortgage was duly assigned to T. S. Blodgett, and by him assigned to the plaintiff. Neither of these assignments was ever recorded. In May, 1887, Burt S. Dolloff executed a quitclaim deed of the land to Isaac Hopper, who on the nineteenth of November, 1887, deeded it to Allen Gale. On the twelfth of December, 1887, Allen Gale brought an action against Martin McCleery and the Central Kansas Loan and Investment Company, alleging that he was the owner and entitled to the immediate possession of the land in controversy and that the defendants unlawfully kept him out of the possession, and praying judgment for the recovery of the possession of the premises. McOleery answered, and contested the plaintiff’s right of recovery. The Central Kansas Loan and Investment Company made default. The trial resulted in a judgment in favor of Gale, against both defendants, for the recovery of the possession of the land on the payment of a tax lien of $73.40.
The case now under consideration is an action brought by the Provident Loan Trust Company against Martin McOleery and wife, Allen Gale, and E. J. Marks, to foreclose the mortgage executed by McOleery and wife to the Central Kansas Loan and Investment Company, which the plaintiff held by assignment through Blodgett. The defendant Marks claimed in this action to have the title paramount, under a conveyance to him*by Gale. The case was tried without a jury, and the court made special findings showing the facts above stated and rendered j udgment in favor of the defendant Marks. On proceedings in error this judgment was affirmed by the Court of Appeals. Afterward, on the petition of the plaintiff in error, the case was ordered to be certified to this court. Two questions are presented by the record : First, did the judgment in the action brought by Caroline Matthews against Jackson, Dolloff, and others, and the sale thereunder to McOleery, pass Dolloff’s title to McOleery? Secondly, is the judgment in the action brought by Allen Gale against McOleery and the Central Kansas Loan and Investment Company a bar to plaintiff’s claim of a lien on the mortgaged property?
In support of the view of the law taken by the lower courts, it is contended that the object of a suit to foreclose a mortgage is to secure a judicial sale of the estate which the mortgagor held in the land at the time of the execution of the mortgage; that all persons acquiring interest subsequently through the mortgagor are proper and necessary parties defendant ; that the holder of a prior paramount title is neither a necessary nor a proper party, and that a judgment of foreclosure by default in such a case does not affect-the paramount title. It is also urged that the averments in the petition of Caroline Matthews were that the interests of Dolloff were subsequent and inferior to her mortgage, when, in fact, they were superior ; and that the judgment rendered on this petition would have barred any subsequent interest that Dolloff might have had, but did not bar his prior paramount title, which was not mentioned in her petition. This view seems to have been adopted by the Court of Appeals. The reasoning, however, appears to us fal: lacious. The effect of a default is to admit the truth of the averments of the petition. Those under consideration, with reference to Dolloff’s title, were that he had or claimed some interest in the premises, but that his interest accrued subsequently and was subject to the lien of the plaintiff’s mortgage. .On his admission by his default that these averments were true, a judgment was entered and a sale of the property made to McCleery. The contention in this case, has been, and now is, that the averments in the petition of Caroline Matthews with reference to title were false. Marks now denies that which by his default Dolloff admitted. The very object and purpose of judicial proceedings is to determine the truth or falsity of the allegations of fact, of the parties to controversies in the courts, as well as their rights under the law applicable to the facts as finally found. When summoned in an action, the defendant is called on to chai lenge the truth of any statement of fact which he denies, and the correctness of any claim of right under the law applicable to the facts alleged. If it should be held that a judgment by default is binding only when based on a truthful pleading, there would be very little advantage in making any appearance in actions relating to land unless some present right to the use of the property should be threatened; for nothing would be lost by the default, and the same defense could be made at any time thereafter. Although Dolloff held the full title to the land in controversy, by his default he admitted the' superiority and validity of the mortgage which was foreclosed.
But it is said that the holder of the the title paramount is not a proper party to an action to foreclose a, mortgage, and that for this reason the District Court had no jurisdiction over Dolloff. Many authorities from other States are united in support of this position. It is conceded by counsel for the plaintiff in error that not only in those states where the courts of law and equity are distinct, but also in most of the code States, this rule is recognized. In Bradley v. Parkhurst, 20 Kan. 462, it was held, Chief Justice Horton dissenting, that “ the question of adverse and paramount title may be litigated in an action to foreclose a mortgage.” And this rule was affirmed and applied in Fisher v. Cowles, 41 Kan. 418, and was recently recognized in Park v. Busenbark, ante, p. 65, 51 Pac. Rep. 907. In Barton v. Anderson, 104 Ind. 578, it was held:
“In a suit to foreclose a mortgage a judgment by default against one who is made a party to answer as to any interest he may have in the mortgaged property, is conclusive as to any'prior claim of interest or title adverse to the plaintiff.”
Whatever the course of decisions may be in other states wé are entirely satisfied with the rule estab lished in Kansas. The advantages accruing to litigants through a full determination in one action of all conflicting claims of title to the property which is the subject of litigation, are so numerous and so great and accord so thoroughly with the spirit of our laws that we should not hesitate to stand alone in upholding the interpretation heretofore placed on our code. Some of the courts seem to take the position that, although title paramount may not be litigated, the extent of the interest of the mortgagor at the time of the execution of the mortgage may be determined' in the action to foreclose it. It is exceedingly difficult to trace any definite boundary between such an adjudication and a full determination of all adverse claims to the property. The practice of clearing up all clouds on the title and entering decrees binding on all claimants is so general and so advantageous that, in this very action, the fact that Marks, the defendant in error, in whose favor the lower courts have decided, claimed adversely to the plaintiff in error by title paramount in an action to foreclose the plaintiff’s mortgage, seems to have been lost sight of. In this case Marks occupied precisely the same relation to the action that Dolloff did to the action brought by Caroline Matthews ; yet the court rendered a judgment in favor of Marks, relieving the land from the burden of the plaintiff’s mortgage, while denying the right of the plaintiff in the former action to make Dolloff a party defendant.
Was the judgment in the action brought by Allen Gale against McCleery and the Central Kansas Loan and Investment Company a bar to the enforcement of the plaintiff's mortgage in this action ? D is conceded by counsel for the plain- ^ err01, owing to the fact that the assignments of the mortgage were not recorded, the case stands precisely as though the plaintiff in this action had been made a defendant in that, and had suffered judgment to be entered against it by default. Did the judgment in that action determine any question as to the validity of the plaintiff’s mortgage lien ? The only relief asked in the petition was a judgment for the recovery of the possession of the property, and that was the only relief granted by the judgment rendered in the case. The plaintiff in this action does not now claim and never has had or claimed any right to the possession of the land. Mc-Cleery claimed both title and right of possession. He contested those rights with Allen Gale and was defeated. The judgment was binding on him. It was also binding on the plaintiff to the full extent of the matter adjudicated. It determined that the plaintiff in this action had no right to possession of the property. It might even be conceded for the purposes of this case that it determined that the plaintiff had no title to the land. None is claimed here.
The claim of the plaintiff is, first, that it is entitled to a money judgment against McCleery for the amount of the note secured by the mortgage. No question is raised as to its right to such a judgment. It claims further that it has a lien on the mortgaged land to secure the payment of the money due it from McCleery, and it seeks to enforce that lien in this action. Its right to do so was not barred ifi terms by the judgment rendered in favor of Gale, nor was there anything in the pleadings or judgment in that action which by inference or implication constitutes a bar. The plaintiff had no defense to Gale’s action, and was not called on to litigate its right to a lien under its mortgage. The judgment, therefore, constitutes no bar to a foreclosure in this action. The judgment of the Court of Appeals and that of the District Court are reversed, and the cause is remanded to the District Court with directions to enter a judgment in favor of the plaintiff', on the facts found, against the defendant Marks, for the foreclosure of the plaintiff’s mortgage and a sale of the mortgaged premises. | [
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Johnston, J.
-Harry Morton was convicted of ravishing Agnes C. Baker, who, at the time, was under the age of eighteen years; and he appeals from the judgment of conviction.
The first error assigned is based on the ruling allowing the county attorney to indorse the names of certain witnesses upon the information at the com mencement of the trial. Several days intervened alter the application to indorse was made and before any testimony was introduced. No motion was made to postpone the trial on account of the ruling, nor does it appear that there was any unfair advantage thereby taken. Only one of the persons whose names were so indorsed testified, and we fail to see that any substantial right of the defendant was prejudiced by the order. It was a matter largely within the discretion of the trial court, and it is only in cases where the court abuses its discretion in this respect that error will lie.
The next contention is that error was committed in overruling the defendant’s motion for a continuance on account of the absence of a witness named Seymour. The motion was supported by an affidavit which set forth the testimony that it was alleged Seymour would give if present, and the court held that a sufficient showing for a continuance had been made. The State thereupon consented that the facts alleged in the affidavit should be read and treated as the deposition of Seymour, and the court then refused the continuance. The statute expressly provides that, if the opposite party will consent that the facts alleged in the affidavit shall be read in evidence and treated as a deposition, no continuance shall be granted; and hence there was no error in this ruling. Gen. Stat. 1897, ch. 95, § 329.
In this connection it is earnestly insisted that the defendant was greatly prejudiced by allowing two witnesses for the State to give testimony which tended to impeach the absent witness. The testimony tends to show that the defendant took the complaining witness in his buggy to a festival at the town of Rock. It is claimed that the offense was com mitted on the way home from the festival, and about eleven o’clock at night, in the buggy in which they were riding. Seymour and two other young men, who had been at the festival, rode home on horseback, and it is claimed that a part of the time they rode near the buggy in which the defendant and complaining witness were riding. In the affidavit purporting -to set out the testimony of Seymour, he is made to say that for a short distance he rode behind the buggy in which the defendant and the complaining witness were riding; that it was a clear, moonlight night, and that he could easily see the occupants of the buggy; that he and his companions finally rode around and went ahead of the buggy, until they reached a certain corner; that he looked back and could see the occupants, and that át no time while he was near the buggy did they have an opportunity to have sexual intercourse without being discovered by him, and that he saw no such act. The affidavit makes Seymour then expressly refer to a conversation had between J. W. Dibbins, the brother-in-law of the complaining witness, and himself, in regard to what he observed on the ride home from the festival, and what his testimony would be at the trial.
At the trial, Dibbins and his wife, who was also present at the time referred to, gave their rendition of the conversation had with Seymour, and it differs materially from that set forth . , . ,, ,,. ,, m the aindaYiti as the testimony or Seymour ; in fact, it directly contradicts him in essential matters ; and the contention is that the State was allowed to impeach Seymour upon matters to which his attention had not been called and no opportunity given him for explanation. The State v. Bartley (48 Kan. 421, 29 Pac. 207), is cited as an authority against this ruling. There, it was held that where the facts set up in an affidavit for continuance are read and treated as the deposition of the absent witness, the court cannot permit alleged statements of the witness, made out of court, to be introduced bo impeach his evidence in the deposition without his attention having been called thereto. There is a marked distinction, however, between the facts in that case and the present one. There the statements of the absent witness,.made out of court and to which his attention had not been called, were received in evidence for the purpose of impeaching him. Here the attention of the witñess was expressly called to the statements -upon which there was a dispute, and he gave his version of them. His testimony as to these statements appears to have been given in anticipation that Dibbins would testify on the same subject, and it does not appear that he was contradicted on any matter about which he did not testify.
If it be granted, however, that the case falls within the rule of the Bartley case, and that the testimony was incompetent, we do not regard it to sufficiently material to require a reversal. The complaining witness did* not attempt ta fix with any definiteness the place where the offense-was committed. She stated that she thought it was in a draw of some kind, but, not being familiar with the road and there being several draws, she was unable tosíate definitely at what point the offense was committed. Seymour and the young men who were riding with him were not, according to their own testimony, close to the buggy in which the defendant, and the complaing witness were riding, except for a, distance of about a mile ; while it appears that they were required to travel a distance of about five miles in going home from the festival. There is also testimony tending to show that there were five or six draws in a distance of two miles of the road over which they traveled.
The testimony of the.defendant and that offered in his behalf shows that the back curtain of the buggy was down, and that while Seymour and his companions were riding behind the buggy they had no opportunity to see the occupants or to observe their conduct. The testimony of his witnesses also shows that, in the short distance they rode ahead of and near to the buggy, they were giving little heed to Morton and the complaining witness, but were in fact engaged in conversation about other persons and things. In fact, his testimony tends to impeach the statements in the deposition. Seymour is made to say that there were no curtains on either the sides or back of the buggy, and that for half a mile before they reached a certain draw they rode behind, but very close to the buggy, and for another half-mile from the draw they rode ahead of and close to the buggy, and that all the time the defendant and the complaining witness were plainly seen by him; while the companions of Seymour, who were riding with him, each testified that the back curtain of the buggy was down, and that while riding in the rear the occupants of the buggy could not be seen. Their testimony is to the effect that they rode around the buggy in a gallop, and only had a momentary glimpse of the occupants of the buggy; that they rode ahead about three hundred yards, and kept that far ahead until they reached the point of separation, and that during all that time neither the witnesses nor Seymour were paying any attention to the buggy or its occupants. In this respect the defendant’s testimony tends to impeach the witness Seymour on material points of his testimony. In view of this consideration and the fact that his testimony was unimportant, we cannot hold that the admission of the testimony of Dibbins, if incompetent, constitutes reversible error. The statute expressly provides that in appeals of this character, “the court must give judgment without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties. Criminal Code, § 293.
The remarks of the trial Judge to which objections are made do not appear to us to have been prejudicial and furnish no reason for setting aside the verdict.
The judgment of the District Court will be affirmed. | [
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Allen, J.
This action was brought by John Kroenert and wife against the sheriff of Cowley County and certain judgment creditors of the plaintiff to recover certain tools and machinery which had been seized by the sheriff under executions in favor of the other defendants, and which had been used by the plaintiff in the operation of a canning factory and are claimed as exempt property. The answer of Mead and Upton alleges that the judgment on which their execution was issued was for rent of a building occupied by the plaintiff, John Kroenert, under a written lease from them, by the terms of which he expressly waived the benefit of the exemption laws of Kansas to secure the payment of the rent.
To this the plaintiffs replied that at the time of the execution of the written lease mentioned in the answer of Mead and Upton, Kroenert was a married man and a resident of the State of Kansas; that the property described in the plaintiffs’ petition was exempt; that the lease was not signed by his wife ; that her consent had never been given thereto, and that therefore Mead and Upton acquired no lien for their rent. To this reply the plaintiffs demurred, and the demurrer was sustained. Section 5, chapter 121, of the General Statutes of 1897, known as the Landlords and Tenants Act, provides :
"A tenant may waive, in writing, the benefit of the exemption laws of this State for all debts contracted for rent.”
This section has been recognized as valid by this court. Hoisington v. Huff, 24 Kan. 379. But it is contended that section 3 of chapter 176 of the Laws of 1889 (§ 3, ch. 120, Gen. Stat. 1897), in effect repeals the section above quoted. It reads :
"It shall be unlawful for either husband or wife (where that relation exists) to create any lien, by chattel mortgage or' otherwise, upon any personal property owned by either or both of them and now exempt by law to resident heads of families from seizure and sale upon any attachment, execution or other process issued from any court in this State, without the joint consent of both husband and wife; and from and after the time when this act shall take effect, no such mortgage of personal property shall be valid unless executed by both husband and wife.”
The title to this act is — "An act to prohibit the mortgaging of exempt personal property without the joint consent of husband and wife.”
In the brief of counsel for plaintiff in error it is assumed that a waiver of exemption operates to create a lien. The catch line above this section, as printed in the General Statutes of 1897 (§ 9, ch. 118), is misleading. The act of 1889 has no reference to waiver of exemptions. The title of the act mentions only the mortgaging, of exempt personal property. The body of the act, however, includes the creation of liéns by mortgage or otherwise. But the act at most refers only to the creation of liens on exempt property. A waiver of exemption creates no lien on any property. Until seized in execution, a party who has waived the benefit of the exemption laws may sell or dispose of his exempt property with as perfect freedom as if no such waiver had been made. After the execution of the lease, Meade and Upton, for the purpose of the collection of their rent, stood in precisely the same relation to the exempt property of Kroenert that they did to his property, if any, which was not exempt from being applied to the payment of his debts generally, and in precisely the same relation that his general creditors would stand to any or all of his non-exempt personal property. No lien on any of it would be obtained until after its seizure under legal process. The well-marked distinction between the creation of a specific lien by chattel mortgage, pledge or otherwise, and a mere waiver of statutory exemptions, is recognized and commented on in the following cases: Curtis v. O’Brien, 20 Ia. 376; Carter v. Carter, 20 Fla. 570; Frost v. Shaw, 3 O. S. 270; Branch v. Tomlinson, 77 N. C. 388; Jones v. Scott, 10 Kan. 33; Bowman v. Smiley, 72 Am. Dec. 744, note. Whatever may be said in support of the proposition that the same reasons which prompted the Legislature to require the assent of the wife to a mortgage of exempt property would apply equally to a waiver of exemption in a lease, the Legislature has failed to use any language which by the most liberal construction can be held to repeal or affect the provisions of the Landlords and Tenants Acts, which allow a tenant to waive his exemption for the purpose of assuring the payment of his rent.
The judgment of the District Court is affirmed. | [
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Allen, J.
The plaintiffs in error seek the reversal of an order of the District Court of Ottawa County confirming a sale of real estate, based on a judgment in favor of Sarah J. Buchanan against H. B. Cronkhite and others, made during the lifetime of the plaintiff, and under which certain mortgaged lands were bid in by her. The sale was made on the twentieth of February, 1893. The plaintiff died on the second day of December of the same year. On the twenty-fourth of August, 1896, motions to set aside the sale were filed by Cronkhite and wife and the Citizens’ National Bank of Kansas City, Missouri. On the same day motions to confirm the sale were filed by Leah V. Buchanan, as administratrix with the will annexed of the estate of Sarah J. Buchanan, and by Rees and Tomlinson, as assignees of the judgment. The court sustained the motions to confirm and overruled the motions to set aside the sale. A motion to dismiss this proceeding is interposed on various grounds, but none of them are deemed sufficient to prevent a consideration of the case on its merits. Numerous errors are alleged, and discussed at much length with elaborate citations of authorities. The record, however, narrows the field of inquiry and renders it unnecessary to consider all the matters discussed by counsel.
Two quarter-sections of land between which there is a public highway were sold as one tract. It is contended that each quarter-section should have been sold separately. Both were included in one mortgage and ordered sold to satisfy the debt. The sheriff’s return merely shows that the whole of the land was offered for sale, and sold to S. J. Buchanan for $3500; that being the highest and best bid made therefor. It is not shown that any request was made by the defendant that the tracts be offered separately, nor does it affirmatively appear that they were not so offered. There was evidence tending to show that it could be sold more advantageously as one tract than if divided. The fact that the defendants Cronkhite and wife resided on one quarter-section as their homestead did not render it imperatively necessary that the sheriff should offer it in separate parcels without any request to do so having been made.
There is no merit in the contention that the court erred in confirming the sale because the parties moving for the confirmation were not the proper parties to do so. Ferguson v. Tutt, 8 Kan. 370; Galbreath v. Drought, 29 id. 711.
It is said that the judgment in favor of Sarah J. Buchanan was never revived by the administratrix of her estate: that the judgment became dormant, and that while dormant no judicial step could be taken based on it; that in the confirmation of a sale the court acts judicially, and must therefore have proper parties before it. This proposition is the one most elaborately argued by counsel for plaintiff in error. Under the rule declared in Kelly v. Stevens (58 Kan. 569, 50 Pac. 595), the record does not present the question sought to be raised. It does not affirmatively show that the judgment was not revived. In the case mentioned it was held that, where one of the parties died after the action was brought and before trial, the revivor would be presumed, in support of the judgment of the court, unless negatived by the record.
It is finally urged that, at the time of the confirmation, Sarah J. Buchanan, who was both plaintiff in the action and purchaser at the sale, was dead; that the order of confirmation directs the sheriff to make to the purchaser a deed to the land sold; that the purchaser, being dead, cannot receive or accept a deed, and without such acceptance the deed, if executed, would be without legal force.
The order of copfirmation follows the language of the statute, and directs the sheriff to make the deed to the purchaser. No provision is made by statute for a case like the one under consideration, where the interest of the purchaser is transferred by operation of law. If it should be held that the deed must be made to the party deriving title to the property under it according to the state of facts existing at the date of confirmation or of the execution of the deed, it would be necessary in many cases to bring new parties into court, and to frame issues between heirs, devisees, legatees, creditors, assignees and others, and to determine complicated questions of fact and of law. The rule is well settled that the rights of. parties are fixed at the time of the sale, and that the deed when issued relates back.to the date of sale. Land Co. v. Barwick, 50 Kan. 57, 31 Pac. 685, and cases cited. It is not incumbent on us at this time to determine the legal effect of a deed executed in pursuance of the order of confirmation. The question now considered is whether the court erred in confirming a sale, where the purchaser died intermediate the sale and the confirmation..
Can it be said that the mere fact of the death of the purchaser avoids the sale ? It would be anomalous to hold that neither the heirs nor the per-sonal representatives of a deceased per-son asserfc the rights which had accrued to him. Must the court set aside the sale, and cause the land to be again advertised and offered to whomsoever would bid ? This might have the effect to deprive the estate of the purchaser of a valuable piece of property, or on the other hand it might subject the debtor, not only to additional cost, but to the loss of a favorable sale of his property. No such consequences flow from the death of a party in interest. We need not now decide whe.ther the interest in the land acquired by Sarah J. Buchanan under her bid passed to Rees and Tomlinson under their assignment, or to the devisees and distributees of her estate under her will. We do hold that her rights were not lost, but at the time of the confirmation still subsisted in favor of the person or persons having the right under the law to assert them. The order of confirmation was rightly made in the language of the statute.
Other matters are discussed in the brief but do not appear of sufficient merit to require mention here.
We find no' error in the proceedings of the court and the order of confirmation is affirmed. | [
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Johnston, J.
This was an action by Henry Lardner against Francis Yahn and others to recover on two promissory notes and to foreclose two mortgages which were given to secure the notes. Henry Keys, who claims to have purchased a part of the mortgaged land, was made a defendant, and he alleged that the description of the land in the mortgage was defective and insufficient. His answer was erroneously treated as a disclaimer, and, without testimony, judgment was.en-; tered for the plaintiff on the notes and also foreclosing the mortgages. In the decree of foreclusure, an amended description was given which included that portion of the land claimed by Keys. The proceed ings were brought to this court for review and the judgment was reversed, and in the report of the review will be found a statement of the nature of the action and of the issues formed between the parties. Keys v. Lardner, 55 Kan. 331, 40 Pac. 644.
Upon review, it was held that “ when attention was called to the defective description by motion, the plaintiff ought to have amended his petition, by giving a better description or showing why he could not do so, or setting up some cause for reformation, so that the court might properly make the amendment in the decree.” After the cause was remanded for further proceedings, the plaintiff filed an amended petition, which made the amendment that was suggested in the opinion of the court and alleged that the land described was that intended to be included in the mortgages. Afterward, J. G. Hutchison, who was alleged to have purchased the land claimed by Keys, was made a party defendant, and he and Keys were the only defendants who appeared, or contested the right of the plaintiff to a foreclosure. On issues formed between them, testimony was received tending to show that the mortgages were intended to include sixty-eight acres in the southwest corner of the northeast quarter of a certain section, but that in describing the land one of the courses was accidentally omitted. The description, as will be seen, was by metes and bounds, and the north and east lines were definite and certain; but, after reaching the south line of the quarter-section, instead of a course running to the corner of the quarter-section, and thence north to the place of beginning, the description read : “ Thence west on said line to the place of beginning ” ; which, in effect, would exclude from the land a long, wedge-shaped piece of land, eleven chains north and' south, across the west end of the tract owned and occupied by the mortgagors. Upon the testimony, the court held that the the entire sixty-eight acres was intended to be included in the mortgages, and entered a decree reforming the description of the land in the mortgages and foreclosing the same.
It is now contended that the testimony was insufficient to warrant the court in finding that a course in the description was accidentally omitted, and in holding that it should be corrected. We find no difficulty in sustaining the ruling of the court. The description in the mortgage itself is strongly suggestive of a clerical error, and there was the evidence of two of the mortgagors, who were residing on the land when the mortgages were made, to the effect that the whole sixty-eight acres was intended to be included in the mortgages in controversy. It is said that the testimony is insufficient because the wives of the mortgagors, and others connected with the transaction, did not testify and state what their intentions were with respect to the description. It is not necessary that every party connected with the transaction should have testified. It is enough that there is testimony clearly showing that a course in the description was accidentally omitted, and that the corrected description was the one intended by the parties.
It is next contended that the plaintiff was barred from obtaining a foreclosure because more than five years elapsed from the execution of the mortgages until the amendment was made setting up the corrected description of the land therein. One of the mortgages was executed in January, 1884, and the other in December, 1886; and the amended petition asking for the correction of the description was filed in September, 1895. The Statute of Limitations does not apply. The amendment did not introduce a new and distinct cause of action, but was- simply made-to cure an imperfect description and to clearly identify the land defectively described in the mortgage. The plaintiff set up no other notes or mortgages than those upon which he originally brought his action ; and the Statute of Limitations was not running against the notes and mortgages since the commencement of the original action in 1890.
We find nothing substantial in any of the objections made by the plaintiff in error, and therefore the judgment of the District Court will be affirmed. | [
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Doster, C. J.
This was an action in the nature of a creditor’s bill. The Emporia Hardware Company, a corporation, was insolvent; and while so, executed to the Emporia National Bank, as a preferred creditor, a mortgage to secure its claim. Two days thereafter, the Hardware Company made an assignment, under the statute, for the benefit of its creditors, j Subsequently, the plaintiff in error, a corporation and a creditor of the assignor, recovered judgment upon its claim, and thereupon filed a petition against the bank, the Hardware Company and the assignee, in which it alleged the corporate character of the Hardware Company, and averred that, while insolvent, it had executed the mortgage as a preference ; that the Bank knew of its insolvency, but had accepted the mort gage, taken possession of the assigned-property, and sold sufficient to pay its claim; that not enough remained to satisfy the other creditors, and that plaintiff had asked the assignee to sue the Bank for the recovery of the mortgaged property, or its proceeds, and had offered to indemnify him and to provide him with counsel for the suit, but that lie had declined to do so. The plaintiff therefore asked, for itself and in behalf of all other creditors of the Hardware Company who might wish to share the benefits of the suit, that the Bank be required to account for the mortgaged property sold by it and pay the value of it to the plaintiff and other creditors. These are the main allegations of the petition,— enough to show the nature of the action. To this j>etition a demurrer for insufficiency of the facts stated was made and sustained. The plaintiff prosecutes error to this court.
The theory of plaintiff in error is, that upon the insolvency of a corporation its property becomes a trust fund for the payment of its debts ; and that equity requires such trust fund to be equally distributed among the creditors, 'and will not, as in the case of insolvency of individuals, allow the execution of preferences bj the corporate officers. .Able arguments have been made upon this question by counsel for both sides, but the defendants in error raise an objection which obviates the necessity of the determination of such question by us. That objection is, that the sole right to enforce the trust which plaintiff in error claims to exist resides in the assignee, as the representative of all the creditors, and cannot be exercised by the creditors themselves.
The theory of the assignment law of this State is that the assigned property is in tine custody of the law ; that the assignee is a trustee for the creditors, and an officer of the court, and that it is his business to ad minister the trust, in pursuance of the statute, under the supervision and order of the court. It is his business to prosecute suits for the recovery of the assigned property ; even that which previous to the assignment liad been fraudulently disposed of by the assignor. The cases of Chapin v. Jenkins, (50 Kan. 385, 31 Pac. 1084) and Walton v. Eby, (53 id. 257, 36 Pac. 332) are full to these points, and the principles upon which they were decided are applicable to this case. If the property of an insolvent corporation, prior to dissolution, constitutes a trust fund for the equal benefit of creditors and cannot be given by way of preference to any one of them, the assignee, in the case of an assignment by the corporation, becomes the trustee of its creditors, charged with the administration of the fund; and if an assignee may recover property fraudulently disposed of by his assignor prior to an assignment, he may also recover that which has been theretofore disposed of through illegal preferences.
The fact that assignees may not always proceed to recover the trust property, and that- in this case the assignee refused to do so, does not militate against the theory of his exclusive right- to so proceed. It is his duty to institute suits, if the right of recovery exists, and, under the general power of the court to direct him in the discharge of his trust, the proper order will be made in the event of any particular dereliction. The authority of the court and the obligation of an assignee are quite like those of'the court and an administrator in the settlement of a decedent’s estate ; and it has been held that a creditor may apply to the court for an order upon the administrator to proceed to the performance of a required duty. Stratton v. McCandliss, 32 Kan. 516, 4 Pac. 1018. The correlative authority of the court and duty of the assignee are likewise substantially the same as those of the court and an assignee in bankruptcy under the late United States Bankrupt Law. In the case of Glenny v. Langdon ( 98 U. S. 20 ), and in Trimble v. Woodhead (102 U. S. 647), it was held, that if the assignee refused upon demand of creditors to bring suit for the recovery of property belonging to his trust, the court upon application would order him to do so, and would remove him in the event of his continued refusal. In Voorhees v. Carpenter (127 Ind. 300) and in Sweetzer v. Higby (63 Mich. 13) it was held, under state assignment laws, that the remedy of a creditor desirous of reaching assigned property which the assignee refused to endeavor to recover was by order of court upon the assignee to proceed; and these last two cases likewise hold that the right of recovery is exclusively vested in the assignee. Section 37 of the Assignment Law of this State vests an aggrieved creditor with a right of complaint to the court; and directs that “ upon the hearing of the complaint the court shall make such order as to it shall seem fit and lawful in the premises for enforcing the provisions of this chapter.” It is not sufficient for the creditor to make demand upon the assignee, and upon his refusal to act, to seize the law into his own hands and undertake that which it is the duty of the assignee to do, and which it must be presumed the court upon proper application would order the assignee to perform.
Because no right of action exists in the plaintiff in ex'ror, the judgmexxt of the coxxrt below is affirmed. | [
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Johnston, J.
At the April term, 1898, of the District Court of Cowley County, Peter Allen was convicted of manslaughter in the third degree upon an information charging him with the wilful, deliberate and premeditated murder of John Mann. Before the trial, upon which a conviction was had, the defendant filed a plea of former jeopardy, alleging a trial upon the same charge at the November term, 1897, of the same court, before a jury duly impaneled, and that evidence on the part 0f the State and the defendant was offered, and that after the evidence had been closed and the case fully submitted to the jury for the purpose of determining his guilt or innocence, the jury were arbitrarily discharged from consideration of the case and without any sufficient or lawful reason therefor; and that having once been in jeopardy he could not again be placed upon trial. The records of the court were introduced and showed the arraignment, the impaneling of the jury at the former trial, the introduction of evidence on the part of the State and the defendant, which continued and occupied the time from December 2 until December 8, when the arguments were made and the case finally submitted to the jury. The record made at the conclusion of the trial reads as follows :
“ And now on this ninth day of December, 1897, the jury not having agreed upon a verdict in the above entitled cause, the jury is discharged from further consideration of this case. The bond of the defendant is by the court on his own motion, reduced to $3,000, and this case is continued until next regular term of this court, and the clerk is directed to approve such bond if signed by good and sufficient sureties.”
It does not appear from the record that the jury was unable to agree, nor is there any record entry of an absolute necessity for their discharge. Some testimony was admitted at the trial of this plea, but it was received under objection, and it is contended that only record evidence is admissible. The contention of the defendant is not that a mis-trial operates as a bar to a further proceeding, but it is 'that the record must affirmatively show that some of the reasons enumerated in the Code for the discharge of a jury without a verdict actually existed. It does not appear upon the record that the jury could not have agreed, nor whether a reasonable time was given them within which to reach an agreement. It does not show that the j urors informed the court or held the opinion that an agreement was improbable, nor was there any finding of the court that the jury after being given a reasonable time for deliberation were unable to agree upon a verdict; indeed, it does not appear that the court exercised its judgment on the question as to whether or not there was a probability of agreement or necessity for the discharge of the jury without having rendered a verdict.
The court cannot arbitrarily discharge a jury, nor should it ever be discharged until it appears from the statements of the jurors and the facts and circumstances of the case that every reasonable hope of agreement has vanished. The ° length of time a jury should be kept together and the improbability of an agreement must be determined by the trial court from the facts and circumstances of the particular case, and its decision will be conclusive unless it has abused its discretion in that regard. Good reason must exist for the discharge of the jury, and one which the law will recognize as an absolute necessity; and a discharge without sufficient reason operates as an acquittal. The statute prescribes the grounds authorizing a discharge of the jury without prejudice to the prosecution, and they are as follows :
. . On account of the sickness of a juror, or other accident or calamity requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no probability of their agreeing.” Civil Code, § 281, Gen. Stat. 1897, § 291; Crim. Code, § 208, Gen. Stat. 1897, § 201.
In this case it is contended that one of the recognized statutory grounds or necessities for discharge appears — that is, the inability of the jury to agree" and if we could look beyond the record a basis for this contention might be found. The rule, however, in cases involving the liberty of the citizen, and especially in cases of felony, is ¿hat the essential, facts upon which the discharge is based, and the finding of the court thereon, must be entered of record; and unless the record shows the existence of such facts and the decision of the court thereon, and that they constitute sufficient ground for discharge, the defendant cannot again be put on trial for the same offense. In The State v. Smith (44 Kan. 80, 24 Pac. 84), the procedure and power of the court in such case was considered- It was said that “when an order is made by a trial court discharging a jury without verdict, to which has been committed the question of the guilt or innocence of a prisoner charged with a crime, the record ought to show affirmatively the existence of the fact which induced such order and justified the exercise of such extraordinary power. This much seems to be demanded in order to preserve to the prisoner the full benefit of the constitutional requirement in his behalf.” And in The State v. Reed (53 Kan. 767, 37 Pac. 174), it was said that the discharge of a jury without sufficient reason will bar a further trial, and that the court cannot arbitrarily determine whether reasons for discharge exist, but that the question of the necessity for discharge was to be heard and determined by judicial methods ; and such methods certainly contemplate that a record of the findings and determinations of the court should be made.
It results from these cases that before a court may discharge a jury to which has been submitted the question of the guilt or innocence of the ac-, , _ cused,*and especially m capital cases, x ° x there must exist: First, an absolute necessity for such discharge ; second, the court must make in quiry and find and determine that such necessity existed at the time of the discharge; and, third, the essential facts as to such necessity and the finding of the court thereon must be made a matter of record; or the defendant may successfully plead former jeopardy when placed on trial on the same charge. Dobbins v. The State, 14 O. S. 493; Hines v. State, 24 id. 134; Ex parte Maxwell, 11 Nev. 436; State v. Reinhart, 26 Ore. 466, 38 Pac. 822; People v. Smalling, 94 Cal. 112, 29 Pac. 421; Conklin v. State, 25 Neb. 784; The State v. Leunig, 42 Ind. 541; State v. Jefferson, 68 N. C. 309; State v. Pool, 4 Lea. 363.
As we have seen, the record in this case falls far short of showing a statutory reason or a lawful necessity for the discharge of the jury, and hence the plea of former jeopardy must prevail. In view of the claim that a necessity for the discharge actually existed, we sustain the plea with great reluctance, but the well-established rule of our own and other courts leaves no other course open to us except to reverse the j udgment of the trial court and to order the discharge of the defendant. | [
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Doster, C. J.
The plaintiff in error, W. F. Thayer, was the owner of a mortgage given by the defendants in error, Emeline and Robert M. Hunter, on the southeast quarter of section 29, township 29, range 5 east, in Butler county. He filed a petition to foreclose it, making the defendant in error, W. P. Knote, a party. Knote in his answer alleged among other things that he was the owner of the mortgaged premises. The court made a general finding that “ all the allegations in plaintiff’s petition are true as therein alleged ” ; but by mistake of plaintiff’s counsel who prepared the journal entry of judgment, and the oversight of defendant’s counsel who approved it, the land was misdescribed as the northeast quarter of section 29, township 29, range 5, east. Following this judgment, the clerk issued an order of sale to the sheriff, in which the land was likewise misdescribed as the northeast quarter, and the sheriff advertised and sold it by such erroneous description, and also in his return of sale similarly misdescribed it. In the plaintiff’s motion for confirmation of sale, and in the order of confirmation, the land was correctly described as the southeast quarter. In the sheriff’s deed executed to A. D. Prescott, the purchaser and one of the plaintiffs in error, the land was again misdescribed as the northeast quarter. Prescott took possession, through a tenant, of the land intended to be sold, and so far as the record discloses has continued in its possession. It is admitted, however, that this purchase was made by him as the agent of Thayer, the mortgagee.
The foreclosure sale did not satisfy the judgment in full by nearly $1800 ; and about two years after the sale the defendant in error, W. P. Knote, purchased the deficiency judgment for $150. This purchase was made through the Johnson Loan & Trust Company, the agent of Thayer. Prescott, who as the agent of Thayer purchased the land at the foreclosure sale, testified that Knote gave to him as his reason for desiring to purchase the deficiency judgment that “he was under some obligation to the Hunters and that he did not want the judgment standing against them.” Knote did not testify, and there is no evidence in the record contradictory of this statement by Prescott of Knote’s reasons for the purchase. The negotiations for the purchase of the judgment were evidenced by letters written by the Johnson Loan & Trust Company, agents for Thayer, to one R. W. Campbell, who in turn communicated their contents to Knote. These letters show that Knote at first desired, not only an assignment which -would carry the deficiency judgment, but also the original note upon which it was founded ; and that this form of assignment was refused for the reason that the note and mortgage had been canceled by the judgment rendered in the foreclosure sale, and such cancellation entered upon the mortgage records. Whether the facts stated in these letters as reasons for refusing to make the form of assignment desired by Knote really existed, the record before us does not show; neither is it material. The supposition of such facts was stated as a reason for refusing the terms of assignment proposed by Knote. The assignment was made in the following form :
“In the District Court of Butler County, Kansas.
“W. F. Thayer, Plaintiff, v. Emeline Hunter et al., Defendants. Assigment. Judgment rendered November 28, 1890, for $2068.30, and costs.
" For value received I, W. F. Thayer, plaintiff in the above entitled cause, do hereby assign, transfer and set over unto W. P. Knote the judgment rendered in the above entitled cause in my favor against Emeline Hunter and Robert M. Hunter, and for any and all balance that may be due thereon, and any and all rights existing or that may arise thereunder. All done without recourse on me.
“Witness my hand at Concordia, New Hampshire, on this 31st day of July, 1893. W. F. Thayer.”
Upon procuring the assignment, Knote, as assignee, entered satisfaction of the deficiency judgment on the records of the court, and also entered satisfaction of the mortgage' upon the records in the office of the register of deeds.
In November following the execution of this assignment, Thayer, the plaintiff in error, having discovered the mistakes of land description existing in the record of his foreclosure proceeding, brought suit to correct the description in the journal entry of judgment, and to set aside the sheriff’s sale of the misdescribed land, and for an order to sell it by its correct description. To this the Hpnters, the mortgagors, Prescott, the purchaser at the mortgage sale, and Knote, the assignee of the deficiency judgment, were made parties. Knote answered by setting up his purchase and instrument of assignment, and also alleged the two and three years’ Statutes of Limitations in bar of the action. The plaintiff-in his reply alleged his ignorance of the mistakes of land description in his foreclosure proceeding at the time of their commission, and his recent discovery of them, and also alleged that Knote had full knowledge of such mistakes, and knowledge of the plaintiff’s ignorance of them, and that, having such knowledge, he sought to defraud and did defraud him in procuring the assignment of the deficiency judgment. In this reply the plaintiff tendered back the money paid by Knote for the purchase of the assignment, and also interest on the amount.
Neither the petition nor the reply of plaintiff prayed for a rescission of the instrument of assignment, and, so far as the above stated allegations of the reply are concerned, they constituted what in pleading is called “ a departure.” They departed from the statement of the cause of action set out in the petition and alleged new and independent grounds for relief against the defendant Knote. However, no objection upon this score was made on the trial of the case, nor has any been made to us in the briefs or oral argument of counsel, and we shall therefore treat the new matter set out in the reply as though it constituted a part of the petition. While the plaintiff did not, either in petition or reply, in terms pray for a rescission of the instrument of assignment, he did, in the reply, tender back to the defendant Knote the money paid for the purchase of the assignment, and the interest on the same, and pray that the court order that it be received in full of Knote’s interest. The right to have this done necessarily involves a rescission of the contract, and we shall therefore treat the pleadings as though a formal prayer for rescission had been made. The court below made a general finding in defendant’,s favor and rendered judgment thereon. From this finding and judgment the plaintiff below, and Pres cott, one of the defendants, prosecute error to this court. The case can now be disposed of in shorter terms than were necessary to state the facts.
The case of the plaintiff in error, plaintiff below, is in equity, for the reformation of one instrument and for the rescission of another — for the reformation or correction of the foreclosure proceedings and for the rescission of the instrument of assignment. It is maintainable in both particulars for the relief demanded. The existence of the right to maintain equitable actions for the correction of mistakes in judgments was decided in the case of National Bank v. Wentworth, 28 Kan. 183. In that case it was remarked by Mr. Justice Brewer —
“ It is one of the unquestioned powers of a court of equity to correct mistakes ; it reforms instruments whenever it satisfactorily appears that by mutual mistake such instruments do not express the agreement of the parties ; and this power is not limited to the mere reformation of instruments executed by the parties. It extends to judgments, decrees, and in fact almost every, if not every, paper or document by which the rights of parties are affected.”
Other courts have held the same. McClure v. Bruck, 43 Minn. 305; Quivey v. Baker, 37 Cal. 465; Snyder v. Ives, 42 Iowa, 157.
Upon the trial of the case under consideration nearly all .the evidence was directed to the time at which the plaintiff’s attorney discovered the misdescription of land in the sheriff’s deed and the journal entry of foreclosure. This for the purpose of ascertaining whether the right of action had become barred by the Statute of Limitations. No offer was made to prove that the plaintiff himself knew of these errors of description. Passing by the question whether in such case as this the knowledge of the agent, or attorney can be so imputed to the principal as to start the Statute of Limitations running against him, we hold that in this case no such statute had run in bar of the right of action. The foreclosure- judgment in which the misdescription first occurred was rendered November 28,' 1890, and the subsequent mistakes of course occurred at later dates. The suit for reformation was begun November 24, 1893, therefore no longer limitation than two years had run. However, the two year limitation does not apply because the action was not one “ for injury to the rights of another not arising on contract.” That limitation applies to the perpetration of an injury by one person .to the rights of another; while the injury, if such it may be called, that was perpetrated in this case, was an injury by the plaintiff to himself. Nor was the action one “for relief upon the ground of fraud.” No fraud was charged against anyone in the making of the mistakes of land description. So far as fraud was charged in the case, it was against the defendant Knote in procuring the instrument of assignment, but that occurred only about three months preceding the. institution of the suit for reformation and rescission.
That the plaintiff in error did not intend to execute an instrument of assignment which would defeat his equitable right to a correction of the record of foreclosure proceedings is obvious. He could not have so intended, because he was not a^are that mistakes needing correction had occurred. That he intended to do nothing more than assign his deficiency judgment is apparent. - His agent- refused- a proposition for an assignment of more than the deficiency judgment. While the instrument contains a clause of general signification, importing the transfer of “ any and all rights existing or that may arise ” under the judgment, the paper as a whole, construed in the light of written negotiations preceding its execution, makes it quite clear that nothing passed by virtue of its terms to the defendant Knote, other than the unpaid portion of the judgment. It gave to Knote no rights in or to the note and mortgage upon which it was founded, none in or to the mortgaged land, nor any right to object to the plaintiff’s demand for a correction of the foreclosure proceedings. That the defendant Knote was aware of the mistakes in these proceedings, and also aware that the plaintiff upon his part was ignorant of them, there can be no reasonable question-. He sought to advantage himself through the plaintiff’s ignorance, and to procure for a comparatively small sum not only a judgment of large amount, but also to secure a point of vantage from which he might obtain a quarter-section of land, which he knew in equity belonged to another. Happily, the law will neither aid him, nor refuse to stretch forth its arm to prevent the execution of his design. Equity will adjudge the rescission of an instrument executed through the mutual mistake of the parties to it, and will also adjudge the rescission of it for a mistake of one of the parties and fraud of the other. It is fraudulent for one party possessing full knowledge of all the facts to take advantage of the ignorance or mistakes of the person with whom he is dealing. It is fraudulent for him to obtain a contract with knowledge that the one dealing with him is materially in error in regard to its terms, or materially in error in regard to the facts necessary to enable him to intelligently act. Welles v. Yates, 44 N. Y. 525; Beach on Modern Equity Jurisprudence, vol. 2, § 544.
The right to equitable relief for the reformation of instruments and for their rescission rests on substan tially the same grounds, but it is held in some of the cases, as one instance of distinction between them, that while an instrument cannot be reformed unless the mistake in its execution was mutual, it may be rescinded or canceled though the mistake is that of one party alone. Beach, supra, vol. 2, §555. Be this as it may, we have no hesitation in holding that in such a case as this, where the mistake was on one side only, and such mistake was taken advantage of by the other, to the end of reaping large benefit from the ignorance of the party with whom he dealt, equity will decree the transaction to be voidable, and will restore the parties to their original situation. Such a case is to be distinguished from one where a vendee, having superior knowledge of the value of property on account of mines or other latent qualities unknown to the vendor, buys it without artifice or unfair dealing. In such case the seller not only parts but intends to part with all he had. His ignorance consists in a lack of knowledge of the value of his property. In this cage the seller’s ignorance was of the existence of what he had, not of the existence of latent qualities in a thing which he knew he had. He parted with something he did not know he had, but with which he would not have parted had he known of it.
The plaintiff in error offered to restore the consideration money paid for the instrument of assignment, and interest on the same. Objection is made that this offer should have preceded the - . bringing of the suit. It is usual m such cases to make the necessary tender before the institution of the proceeding, but equity will not refuse relief because it was not then done. It will, however, require it to be done as a condition to granting the relief prayed for. Equity only requires a suitor to do equity, not necessarily in the first instance except in his bill, to offer to do it. DanielPs Chancery Pleading and Practice (6th ed.), vol. 1, 385; Shuee v. Shuee, 100 Ind. 477.
The judgment of the court below is reversed with directions to proceed in accordance with this opinion. | [
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Johnston, J.
This was an action for a breach of promise of marriage, in which Lillian Wolfersberger recovered damages from George A. MacElree in the sum of $3,191.50. It was alleged, and in fact admitted, that on August 11, 1891, in Pennsylvania, where both of them resided, the parties entered into a marriage engagement. The mutual promises were orally made, and no definite time for the performance was fixed. In June, 1892, MacElree left Pennsylvania and came to Kansas, with a view of finding a location for the practice of his profession, which was medicine. Prior to his departure,'some talk was had between the parties, to the effect that he might be absent for about a year, and that when established in Kansas he would return and consummate the marriage. He located in Newton, Kansas, and there were frequent exchanges of.letters between them; the correspondence' continuing until January, 1893, when he-repudiated the contract. Shortly 'afterward he married another. As a matter of defense, he alleged that he had not agreed to marry the plaintiff within one year from the time the contract was made, and that the contract was not in writing. He further alleged that her eyesight was defective at the time the marriage contract was made, but lie was informed that she would soon recover her sight, but that afterward her eyesight became worse, and her vision was so greatly impaired as to render her unable to perform the ordinary duties of wife and housekeeper,'and that he was financially unable to maintain as his wife one so afflicted. Although it was claimed that the contract was renewed in June, 1892, the jury found that the only contract of marriage between the parties was made on August 11, 1891, that it was not in writing, and that it was to be performed at some future and indefinite period.
It is earnestly insisted that the agreement was not enforcible, because not in writing and not to be performed within one year. Under the facts of the case, we think the Statute of Frauds relied on does not defeat the contract nor bar a recovery thereon. Although no definite time was specified within which the contract was to be performed, it is ciear that when the contract was made there was no stipulation or understanding that it was not to be performed within a year. ’ The subsequent talk between the parties did not amount to a new contract or to a modification of the one made in August, 1891. The parol contract was capable of full and complete performance within one year. There is nothing to show that the parties intended that the consummation should be long delayed ; but, whatever their hopes and expectations may have been, it does not appear that there was any express agreement or understanding that it should be postponed beyond the period of one year. We think the trial court fairly stated the rule to the jury in the following instruction :
“I instruct you further in this same connection that, if the promise of marriage was to be performed in the future, and no time was specified for the performance of it, and such contract is capable of entire performance within one year from its date, it is not within the Statute of Frauds. This.question does not depend entirely upon the intention or understanding of the parties to the contract, nor upon the fact that the promise was not performed’ within one year; but if, when the contract was made, it was in reality capable of full performance in good faith within a year, without violating the terms of the contract, or without the intervention of extraordinary circumstances, then it is to be considered as not within the Statute of Frauds, and a valid and binding contract.”
Larimer v. Kelley, 10 Kan. 312; Sutphen v. Sutphen, 30 id. 510, 3 Pac. 100; A. T. & S. F. Rld. Co. v. English, 38 id. 110, 16 Pac. 82; Aiken v. Nogle, 47 id. 96, 27 Pac. 825; 4 Am. & Eng. Encyc. Law (2d ed.) 888, and cases cited.
Reference is made to Nichols v. Weaver, (7 Kan. 373,) asan authority against the instruction that was given. It appears, however, that that case was reviewed upon the findings alone, and there was a specific finding that the marriage contract was’not to be performed within one year from the date of making the same. That being true, the case fell fairly within the Statute of Frauds, under the authorities cited, and is entirely unlike the case at bar.
Complaint is made of the refusal to charge the jury that the only contract of marriage was that made in August, 1891. There was testimony given by the plaintiff tending to show that a new contract was made at a later date, and lienee the court was not warranted in determining this question for the jury. In fact there was considerable basis for a claim that, the letters which were introduced in evidence were sufficient to constitute a written contract of marriage. The jury having found, however, that the only contract between the parties was the one made in August, 1891, 'the refusal of the instruction, even if it had been a proper one, was not error.
The same view disposes of the claim that the jury should have been - instructed that the letters written by the defendant did not constitute a note or memorandum of a marriage contract. An examination of the instructions satisfies us that the case was fairly submitted to the jury, and that they furnish no grounds for the criticisms made by the plaintiff in error.
It is contended that error was committed in admitting in evidence the conversation between the parties in which the defendant requested the plaintiff to change her church relations and transfer her membership to the church to which he belonged. We think this was a proper consideration .for the jury. It was a circumstance showing the affection she had for him, and as a wound or injury to her affections is an element to be considered in the computation of damages, it was properly admitted.
There are some other objections to rulings upon the testimony, but we find nothing substantial in any of them.
It is finally contended that the special findings and general verdict are inconsistent, and that the award made by the jury was excessive. This complaint is based upon the following findings :
" Do you allow the plaintiff any damages for men-’ tal anguish ? Ans. Yes.
‘‘If the j ury answer the last question in the affirmative, please state the amount of damages allowed for this injury. A. $1,000.
"Do you allow the plaintiff any damages for the disappointment and humiliation suffered by her by reason of the breach of the marriage contract ? A. Yes.
“ If you answer the last question in the affirmative, please state the amount of such damages. A. $1,000.”
It is argued that the findings quoted indicate a double amount of damages on account of disappointment and humiliation, and therefore that the court should at least b ave required a reduction of one thousand dollars in the award made. In our view there is no real conflict in the findings nor any duplication of damages. The jury evidently thought that both questions referred to the same element of damages, and that the mental anguish suffered was due to the humiliation and disappointment resulting from the breach of promise. The court had instructed the jury that no damages could be allowed for mental anguish exceed the injury to the plaintiff’s affections and the mortification resulting from the defendant’s refusal to fulfill his promise. With this instruction before them, the jury could hardly have regarded the questions as relating to separate and distinct elements, and the answers indicate that only one thousand dollars was allowed for all mental suffering, inc±ucl:mg disappointment and numiliation. The findings admit of this interpretation, and the rule is that where findings are susceptible of two interpretations the court will if possible adopt the one which will harmonize with and sustain the general verdict. We think the damages cannot be regarded as excessive; and finding no material error, the judgment of the District Court will'be affirmed. | [
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Joi-inston, J.
While William H.- Brown was uncoupling two cars in the yards of the Chicago, Rock Island and Pacific Railway Company, at Horton, two of his fingers were injured to such an extent as to require amputation. In an action against the Company to recover damages, he alleges that the injury was the result of the Company’s negligence, and the specific and only negligence alleged is that “it permitted, through its agents and employees, said car No. 3956 to be and remain out of repair, knowing the same to be in a defective condition in that the strap which held the jenny coupler was out of repair, unfastened and out of place, thus permitting the coupler to sag and fall below its regular and right position, so that -when it came in contact with the coupler of another car, the coupler of said other car overlapped it and caught said plaintiff’s hand, causing the injury aforesaid.”
At the trial the plaintiff produced his proof, but the court held it to be insufficient and sustained a demurrer to his evidence.
Prom the evidence it appeared that the plaintiff had been in the service of the Company for several years, and had been employed as a switchman in the Horton yards for nearly nine months before the occurrence of the accident. Some of the repair shops of the Company are located at Horton, and in connection with them, there are several repair tracks upon which broken or injured cars are placed for the purpose of repair. The defective car which plaintiff attempted to uncouple was upon one of these tracks and had been brought there for repair.
We think the plaintiff failed to establish a case of actionable negligence on the part of the Company. The fact that the car was out of repair did not imply negligence. In general, it is the duty of a railway company to furnish suitable and reasonably „ •, . n . ■, safe machinery and appliances, and if ^ it fails to do so, and injury results therefrom to an employee, he may if free from fault, recover from the company for his injuries. That rule is not applicable in a case like this. It ajDplies to cars that are in general use, and not to those which have been withdrawn from service and brought in for repair. All know that cars "are frequently broken and injured by use, and when that occurs, both duty and interest require that the company shall cause them to be repaired and made reasonably safe for use. To accomplish this, it, is necessary that they should be removed to the repair shops, and it is necessary that employees shall assist in moving them. As a general rule, an employee who handles such cars with knowledge of the defects will be held to have assumed the risks incident to such work. One who is employed to handle broken and disabled cars cannot shut his eyes to the hazardous character of the service, nor invoke the above-mentioned rule which requires the company to furnish safe machinery and appliances. In order to conform to the requirements of that rule the company must bring in broken and disabled cars and repair them. When they are placed on the repair tracks the employees regularly engaged in handling damaged cars have at least some notice of their condition and of the risk to be run in handling them. When the plaintiff found the car on one of these tracks, he was, in effect, warned that for some reason the car was unsuitable for ordinary use, and that he must therefore exercise greater care; and he will be held to have assumed greater risks.
It is averred that the Company knew of the defective condition of the car, and that the plaintiff had no knowledge of it. But he had no right to assume that the car was safe. Finding it upon a repair track, he is required to proceed as if it was defective in some particular 'and unsuitable for ordinary use. The fact that the car was damaged and had been put aside for repairs and that the Company knew of its condition, is not enough to establish actionable negligence. There is nothing to show that the damaged condition of the car was due to the carelessness of the Company, nor that the original construction was faulty ; neither is it shown by whom or by what means it was broken. The plaintiff can make no claim on account of inexperience. He was a man of mature years who had been in the service of the Company for a considerable time. He was familiar with the yards and the methods employed. He knew the location of the repair tracks and the purpose for which cars were placed thereon. In his petition there is no averment that the Company was guilty of negligence in failing to notify him of the particular defect in the car, or that he was misled in any way, as to the character of the defect, by the action of the Company.
In the argument it was urged that the Company was negligent in failing to place upon the car the mark “ B. 0.” or “ Bad Order.” It was contended that as some of the cars on these tracks had been repaired or were- in good condition, such a designation was necessary and customary, Whether under the circumstances some designation of that character is necessary, or whatever may be the rule with respect to it where its absence is relied upon, it certainly is not available as a ground of negligence in the present case. The failure to so mark the car is not alleged by plaintiff as a ground of negligence, and he cannot rely on other than 'those alleged as a basis of recovery. But aside from that, it appears from testimony given by one of plaintiff’s witnesses that there was a mark of “ Bad Order ” on the side of the car.
Some claim is made that the car was placed upon the repair track to have a side-board putin, and not for the repair of the coupling attachment, and that as this was noted in the car-inspector’s book it operated to mislead the plaintiff. It appears, however, that he did not see the book until after the accident, and what ever it may have contained he could not have been misled by it.
Our conclusion is that the plaintiff failed to show that his injury was caused by the negligence of the Company, and, therefore, the ruling of the District Court must be sustained. As tending to sustain the conclusion reached, the following cases are cited; Flannagan v. Railroad Co., 45 Wis. 98; s. c. 50 Wis. 462; Kelley v. Railway Co., 35 Minn. 490; Yeaton v. Railroad, 135 Mass. 418; C. & N. W. R. R. Co. v. Ward, 61 Ill. 130; Arnold v. D. & H. C. Co., 125 N. Y. 17; Watson v. H. & T. C. Railway Co., 58 Tex. 434.
The judgment of the District Court will be affirmed. | [
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Adden, J.
The plaintiff in error, Hemy S. Ireton, brought suit against the defendants in error, who are the widow and part of the children of John Ireton, deceased, to recover a quarter-section of land in Cowley County. The plaintiff was a son of John Ireton, by Elizabeth Ireton, his first wife, by whom he also had other children, who, on their own application, were made parties to the case, and filed an answer and cross-petition. The plaintiff claimed title to the land by virtue of a deed executed by John and Elizabeth Ireton on the fourth of September, 1874, re corded in the register of deeds’ office on the eighteenth day of- the same month. The evidence at the trial showed, without dispute, that John Ireton, with his family, had occupied the land in controversy, from the year 1874 until the time of his death, which occurred in 1893. Bridget Ireton was his third wife, and with her children, resided on the place at the time of the death of her- husband, and has continued to occupy the land ever since. The plaintiff claimed that the occupancy by John Ireton was under a lease, executed by the plaintiff on the twelfth day of October, 1890, to John Ireton for the term of his natural life.
In an amended answer filed by the defendants, it was alleged that, in January, 1892, in an action brought by John Ireton against J. P. Baden to recover damages to the land in controversy, caused by raising a dam theretofore erected by Baden, Henry S. Ireton testified, as a witness on behalf of his father, that the deed he now relies on was never delivered to him, and that he never claimed any interest in the land. The answer also alleged that the testimony taken on the trial of that action was reduced to writing, and was afterward incorporated in a case-made which became one of the records of the District Court of Cowley County. On the trial of this case, the case-made referred to in the answer was offered in evidence by the defendants, and admitted over the objection of the plaintiff. It contained the pleadings, evidence, proceedings and verdict in that case. It shows, not only that Henry S. Ireton testified in behalf of his father substantially as stated in the defendant’s answer, but also, that John Ireton testified to the same effect. The admission of this case-made is the first error complained of.
It was error to admit it. It was not a record binding on the plaintiff in this case. He was not a party to it, and was in no manner responsible for what it contained. Ble occupied precisely the same legal relation to the action brought ■ ° ° by his father against Baden that any other witness did. In the case of Wright v. Wright, 58 Kan. 525, 50 Pac. Rep. 444, we held that “an official court stenographer who has correctly taken the testimony of a witness may read his notes of such testimony as evidence upon a subsequent trial, although he has no independent recollection of such testimony, and can relate the same only by reading his notes thereof.” As remarked by Chief Justice Doster in the opinion, the rule declared in that case relaxed the stifictness of the old common law rule, which merely permitted a witness to refresh his memory by the use of memoranda, but required that the testimony when given should be based on recollection. The stenographer testified, in that case, that he had correctly taken the testimony and could read it from his short-hand notes, though he had no independent recollection of it. We held in that case, that the stenographer might be permitted to read the notes. In this case, however, the case-made was admitted without any proof that the evidence purporting to be contained in it had ever been correctly taken down or transcribed by any one. It had been settled in a case-made as true for the purpose of reviewing the proceedings on the trial of the matters in controversy between John Ireton and Baden, but it was not transcribed, nor settled as a truthful statement of the evidence given on that trial, bearing on the controversy in this case. It was not settled with reference to this case at all, nor could it have been.
The contention pressed by counsel with much earnestness, that this testimony was rendered competent by the defendant’s answer, is without p a , , -t force. A party may not render mcom- ° ** petent-or irrelevant testimony competent merely by pleading it, nor does the failure of the opposing party to move to strike it out as irrelevant or redundant render it admissible. That the admission of this testimony was highly prejudicial to the plaintiff is apparent. It is likely, not merely to have weight, but to be regarded by the jury as decisive of the case.
The plaintiff asked the court to instruct the jury that, if John Ireton accepted a lease from the plaintiff, and remained in possession by virtue of it, the defendants would not be allowed to set P y title in themselves, hostile in character to the title which the plaintiff had at the time the lease was executed, while they remained in possession by virtue of such lease. "While the general rule is that a tenant is estopped from denying the title of his landlord, it was an open question in this case whether the relation of lessor and lessee, ever, in fact, existed. It is not claimed on behalf of the plaintiff that he ever put his father into possession of the land under this lease. His father had held possession from the date of the deed in 1874 to the time of the execution of the lease in 1880, and he continued thereafter to occupy it as before. The mere- fact of the execution of the lease by the plaintiff would not create an estoppel. That would arise only from the occupancy of the premises by John Ireton under and by virtue of it; and whether there ever was such an occupancy, as well as the question whether the deed under which the plaintiff claimed was ever delivered, were controverted questions of fact to be submitted to the jury. For the error in the admission of the case-made, the judgment must be reversed and the case remanded for a new trial. | [
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Doster, C. J.
This was an action to recover damages for the death of an infant two years and four months old, caused, as alleged, by negligently running upon and over it with a train of cars. A verdict and judgment for $550 was rendered for plaintiffs in the trial court. Upon proceedings in error to the Court of Appeals the judgment was affirmed. Mo. Pac. Rly. Co. v. Prewitt, (7 Kan. App.) 51 Pac. 923. The case has been ordered here for review. The only question necessary for consideration arises upon the special findings of the jury as to the circumstances of the accident. Such of the findings as are most material to this question are as follows :
“1. Did the engineer when he discovered an object upon the track make any effort to slacken the speed of his train so that it could be stopped if necessary before passing over the object? A. Not when he first discovered the object.
“2. Could the engineer have stopped the train before striking the child had he taken such measures as were in his power at the time he first discovered the object on the track and before he knew and recognized it to be a child ? A. Yes.
“3. Were the engineer and fireman in doubt as to the nature of the object when they first discovered it upon the track and until they recognized it as a child ? A. Yes.
“4. How far was the said Bertie Prewitt from any public highway or crossing at the time of the accident ? A. About 147 rods.
“5. How far was the house in which the plaintiffs and said Bertie Prewitt lived from the place whpre the said child was injured ? A. About 47 rods.
“10. Is it not true that when the engineer in charge of the engine first discovered the object which after-wards proved to be the said Bertie Prewitt, he believed that said object was a piece of paper or weed which had blown upon the track ? A. No.
“ 11. Is'it not true that when the engineer first discovered the object which afterwards proved to be Bertie Prewitt upon the track that he believed it to be something that could not be injured and which would not endanger his train or the passengers upon it ? A. Yes.
“12. Prior to the time that the engineer or fireman discovered that the said object was a child, did they, or either of them, believe or have any reason to believe that a child might' be upon the railway track at that point? A. No.
“13. Is it not true that from the time the said object was first discovered upon the track by the engineer and fireman up to the time when they discovered that it was a child, both said engineer and fireman believed that it was a piece of paper or weed, or something of that character which could neither be injured nor do damage to the train? A. No.
“15. Was the place where said Bertie Prewitt was injured a place that was frequented by children or where children were in the habit of playing or being? A. No.
“.16. From the time the object which afterwards proved to be Bertie Prewitt was first discovered by the engineer'or fireman, did the said Bertie Prewitt move or give any signs of life which could be noticed by either the fireman or engineer? A. No.
“19. Did either the engineer or fireman prior to the time they, or either of them, discovered that said object was a child, have any idea that it was any living thing? A. Yes.
“52. Does not the evidence show that the child was, at and before the time it was killed, lying motionless on the southern slope of the surfaced earth between the rails? A. Yes.
“53. Does not the evidence show that when the engineer and fireman first discerned the child they did not know what it was but thought it was a paper or weed? A. Yes,
“ 54. Does not the evidence show that neither .the engineer nor the fireman knew that it was a living creature until after the engineer asked the fireman what it was and just prior to the time that he reversed his engine and applied the brakes. A. Yes.
“ 55. Does not the evidence show that if the engineer had doubt at all as to what the character of the object was up to the time that he discovered that it was a child and the time when he applied the brakes and reversed his engine, he had no thought that it was a child or human being? A. Yes.
“56. Does not the evidence show that as soon as the engineer discovered it was a child he did everything in his power to stop the engine and train and save its life? A. Yes.
“ 58. Is it not true as established by the evidence that the train was equipped with the best modern appliances and with what is know-n as the Westinghouse Improved Air Brakes, for the stopping of the engine and train in cases of emergency, and that they were in good working order at the time of the accident? A. Yes.
“59. Is it not true that the engineer in charge, Peter Lahey, was above the average engineer in sobriety, good habits and skill? A. Yes.
“60. Does not the evidence show that at the time of the accident the engineer was in good health and in full possession of all his faculties? A. Yes.
“ 61. Does not the evidence show that the fireman, Leroy Liggitt, was a skilful fireman and a man of' good habits and faithful in the discharge of his duty? A. Yes, according to testimony.”
Other findings, not important to set out in full, disclose the fact that a ditch and a hedge fence with an opening in it, intervened between the house of the child’s parents and the place of the accident. Prom all these findings it would appear that the child had wandered from the care of its parents to the railroad track, and had lain down 147 rods from any public highway crossing, and was probably asleep at the time of its death. Such cases greatly move the sympathies, and incline us all to try to find for the stricken parents some balm to assuage their grief. The law, however, will not impose penalties upon an innocent cause of human sorrow, however poignant the suffering may be.
Do the findings show fault upon the part of the Railroad Company, through the negligence of its employees? The findings numbered ten and fifty-three would appear to be contradictory as to what the engineer thought the object on the track was when he first discovered it. So far as the fact inquired about, and concerning which answers were made, is involved in the substance of the case, a claim of reversal might be founded upon these contradictory findings. We will not however base our judgment upon any theory'of inconsistency in the findings, but upon the substantial facts of the case disclosed by them as a whole. These substantial facts were that the child was not run upon at a public highway crossing nor at a place frequented by children, and that there was nothing in its appearance to indicate to the enginemen that it was a human creature or any living thing which could be injured or do injury to the train or passengers, until it was too late to avoid running over it. In view of such fact can the Railroad Company be rightfully accused of negligence? We feel sure that it cannot. Regard must be had at the outset, in the consideration of such cases, to the duties resting upon railroad companies as public carriers of passengers and property, and to the manner in which those duties must of necessity be discharged. Trains must be run upon time schedules. They cannot conform to the schedule if obliged to stop at the appear anee upon the track of all objects the nature of which is only discernible upon near approach. Rags, papers, weeds, fowls and small animals are perceived and run over between all the stations in the travel of a train. To stop, or even to slow up, at the sight of all these objects, would entail upon the trainmen a consumption of time and a degree of carefulness which would make the business of railroading a difficult, burdensome and unsystematic one indeed. The obligations resting upon railroad men in the operation of trains rise or increase, of course, with the thickening or increase of warning circumstances of peril. So they do in all human affairs where dangerous agencies are employed. The failure to rise in care and diligence to the heightof a dangerous occasion, as indicated by circumstances, is negligence. If however no circumstances indicating danger are known or perceivable, though they really exist, it cannot be said that negligence has occurred. In this case had the object perceived by the trainmen been at a highway crossing, where the presence of small children might be suspected, or had it been at a place frequented by them for play, near a school-house, or in or on the outskirts of a village, the case might be different. A railroad company owes some duty to trespassers. It must not wantonly run its trains upon them even though they be trespassers. It must have a care for them at places and under circumstances where trespassing is liable to occur ;■ but it does not owe to them, however guiltless of intelligent wrong conduct they may be, to care for them in out of the way and unusual places, unless signs and circumstances indicate their presence.
It would extend this opinion to an' unnecessary length to enter upon and carry through an analysis of the above quoted findings, to show that negligence upon the part of the Railroad Company is not disclosed by them. Synthetically considered they show the opposite of negligence, or rather show that no circumstances calling for the exercise of diligence upon the part of the trainmen to avoid the accident were known to them, or'were in reason to be apprehended by them. They show engine machinery and appliances of approved pattern and good working order; they show that the engineer and firemen were men of skilfulness, sobriety, faithfulness in the discharge of duty, and in possession of all required faculties. They show that the place of the accident was not one where small children would reasonably be expected. They show indeed circumstances making it unreasonable to suspect the presence of small children at such place. They show that prior to the time when the enginemen discovered that the object on the track was a child, they did not believe or have reason to believe it was one. They show that when the enginemen first discovered the object on the track, they believed it to something that could not be injured and which would not endanger the train or passengers. They show that as soon as the enginemen discovered the object upon the track to be a child, they did everything in their power to stop the train and save its life. They do however show, as contended by defendants in error, that the enginemen were, for a time after their discovery of the object upon the track, and up to the time they perceived it to be a child, uncertain as to its character ; •but the fact is collectable out of all the findings, and •expressed in some of them, that the trainmen had no reason to believe that the object was a child, nor even •a living creature until, as stated in finding fifty-four, just prior to the time the engineer reversed his engine ;and applied the brakes ; and that practically up to that time, he did not believe it to be anything that could be injured or which would injure the train or passengers. Upon the facts, as disclosed by the find.-', ings quoted, the Court of Appeals ruled the law to be thus —
‘ ‘ The duty of an engineer in charge of a passenger train, when he discovers an object upon the track, the nature of which he does not understand, is, if possible, to bring his train under control, until the nature of the object is known, that he may be able to stop if necessary to prevent injury.”
We do not assent to this statment of the law. It leaves out of consideration the element of reasonable belief, from the circumstances of the case, that the non-understandable object was a human-being, or some thing of substantial value which could be injured, or which would do injury to the train or passengers. As stated before, there is no duty resting upon the men in charge of a train to stop or slow up at the sight of every object upon the track, the precise nature of which cannot be understood, unless it be such as from its appearance and the surrounding circumstances, is of a character to indicate danger, either to the object or to the .train. There are some cases which give countenance to a contrary rule, but the most of those cited by counsel for defendants in error disclose facts which render them dissimilar to this one. The great weight of authority is to the contrary of the view taken by the District Court and the Court of Appeals.
The case of A. T. & S. F. Rly. Co. v. Todd (54 Kan. 558, 38 Pac. 805), was an action to recover damages for the death of a boy between nine and ten years of age, and this court said :
” He was in a place where the company had the exclusive use of the tracks, and where there was no reason to anticipate that intruders or trespassers would be concealed. Under such circumstances, there was no duty on the part of the company to foresee his wrongful presence, nor did any duty arise in his favor until his presence was discovered. As a general rule, before the company can be made liable for injury to trespassers, it must appear that the proximate cause of the injury -was the failure of the company to use reasonable care to avoid injury to them, upon becoming aware of the peril to which they were exposed. . . The only duty which the company owed to him was not to recklessly or wantonly run over him after they discovered him in a place of danger.”
The case of Crystal v. Troy & B. R. Co. (N. Y., 11 N. E. 380), was an action against a railroad company to recover damages for running over and injuring a child seventeen months old. The negligence relied on by plaintiff was the failure of the engineer to discover the child upon the track in time to stop the train. It was claimed that he might have seen the child sooner, but the court held that there could be no inference that the engineer' could have seen the child sooner than he did, and that plaintiff was not entitled to recover. In the opinion the court said :
“But there Yan be no doubt upon this evidence that after the engineer discovered that the child was in peril, he did all he could to arrest the motion of his train. That he wilfully or recklessly ran upon him after he discovered that he was in peril is inconceivable and certainly cannot be assumed. An engineer is not bound to stop his train the moment he sees some living object upon the track. He has the right in broad daylight, when his' train is perfectly visible and its approach must be heard and known, at least in the first instance, to assume that the object, whatever it is, will leave the track in time to escape injury. He is not bound to expect helpless infants upon the track, without sufficient knowledge or ability to escape when warned of danger. He could not know when he first saw the plaintiff, that he was too young to be conscious of the danger to which he was exposed; and without the imputation of negligence he could run on until he discovered that he was heedless of the danger. Reasonable care in the management of trains which, must make their time between stations and have the right of way does not require more. The defendant is not responsible for an error of judgment, if there was any, on the part of the engineer as to the speed of his train, the distance, age and peril of the child, and his ability to stop the train in time to protect him. All the engineer was bound to do after the discovery of the peril was to use reasonable diligence and care to avert it, and there was no evidence which authorized the jury to find that he did not do this.”
The opinion of the Court of Appeals is disapproved, and the judgment of the District Court is reversed, with directions to enter it, upon the findings, for the defendant, instead of the plaintiff in that court. | [
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Allen, J.
This case involves the title to part of an island in the Arkansas River, opposite the mouth of the Little Arkansas. In the year 1867, the lands lying along that part of the Arkansas River were surveyed by authority of the Government. In making such survey both sides of the river were meandered, and no notice was then taken of this island. It was not indicated on the plats of the survey. In 1869, William Smith settled on the north half of the southeast quarter and lot 5 of section 18, township 27, range 1, east; and, on the tenth of June, 1873, a patent therefor was issued to him by the United States. The land in controversy is that part of the island lying south from and opposite lot 5. The plaintiffs are the owners of the land so patented to William Smith, and claim title to the land in controversy as an appurtenant to lot 5, which was bounded on the south by the river. In 1875, Mary Norman settled on the island. At her instance it was surveyed by orders from the General Land Office, and designated as lot 4 of section 17, lot 10 of section 18, lot 8 of section 19, and lot 8 of section 20. A patent for the island, described as such lots, was issued to her on December 30, 1876. The quantity of land granted is stated in the patent as 25.70 acres. The defendant claims title under a chain of conveyances from Mary Norman. The contention of the plaintiffs is, that when the government granted to William Smith lands bounded by a non-navigable river, the patent conveyed title to the middle thread of the stream; and that a subsequbnt survey of the island and grant of it to another, could not divest the title which had already passed to Smith.
Much of the testimony was directed to the question whether the Arkansas River above the mouth of the Little Arkansas was navigable prior to 1875. A large part of the briefs is devoted to a discussion of the facts bearing on the question of navigability and the law applicable to them. As we view the case, it is unimportant whether the river was navigable or not. The patent to William Smith conveyed to him the north half of the southeast quarter and lot 5 of section 18, containing 129.67 acres, according to the official plat of the survey of the lands returned to the General Land Office by the Surveyor General. The southern boundary of his land as shown by that plat was the Arkansas River. The jury found under the testimony that the river was then navigable, although it has now ceased to be so. But, whether that finding be right or wrong, it appears without dispute that, in 1869, when Smith settled on his land, the island contained about twenty-six acres, and that the waters of the Arkansas River divided at the head of the island, forming two distinct channels, the one on the north of the island being about two hundred feet wide, and the one on the south about three hundred feet wide. There is no claim that this island or any part of it was included in the computation of the quantity of land patented to Smith.
We are not inclined to question the soundness of the rule applied in the case of Grand Rapids & I. R. Co. v. Butler, 15 S. C. R. 991. In that case, a small island, containing 2.56 acres at the time of the survey, lay between the middle of the stream and the land on the shore belonging to Butler. There was conflict in the testimony as to the character of the island at the time the shores of the river were meandered. Other islands in the river were surveyed at -the time the west bank was meandered, but this island was not surveyed until nearly twenty years thereafter. The Supreme Court of Michigan held that under the law of that State the original grant passed title to the middle thread of the river, which was west of the island, and that no subsequent survey by the government could deprive the grantees of it. This decision was affirmed by the Supreme Court of the United States. There can be no question as to the soundness of the rule that the government of the United States cannot deprive a riparian proprietor of any substantial right that passed to him under a patent to the bank of a stream, whether navigable or not. In this case, however, the question is, What was the boundary of the land patented to Smith? Was it the north bank of the river, the centre line of the north channel, the centre line of' the south channel, or, as seems to be claimed by the plaintiffs in error, a line running mid-W'ay between the north and south banks, dividing the island into two parts, making the thread of the stream extend across dry land and over primitive soil? The case of Horne v. Smith, (15 S. C. R. 988,) decided on the same day with Grand Pvapids & I. R. Co. v. Butler, show's that the rule is not to be applied inflexibly to every grant of lands bounded by a stream of water. The syllabus of the case is as follows :
“The official plat of a township showed that sections 28 and 26 are fractional, bordering on a river on the west; that a meander line runs through them, and that the area of certain lots in such sections is 170.42 acres. In fact along such meander line is a bayou, west of which, between it and such river, is a body of land over a mile wide, containing six hundred acres which was never surveyed. The length of the section line between such sections from the east line thereof to the meander line, is given on such plat as 80.55 chains, while the distance from such east line to the main body of the river is about 1-J- miles. Held, that such bayou and not the main body of the river is the boundary of such sections and lots, and that a patent to said lots containing 170.42 acres, according to the official plat, did not convey the land between the bayou and the main body of the river.”
In this case, the channel on the north was as much the Arkansas Biver as that on the south of the island. There "was a well defined stream on either side. The island was not a mere shifting sand bar or temporary accretion. It was primitive soil, on which large trees were standing. The survey of lot five was along the bank of the river as though it were a navigable stream. The island, which would have fallen in four different sections if surveyed as though the stream were not navigable, was not included in the number of acres patented to Smith. He paid for 129.67 acres, and it is not claimed that it is necessary to include the island in order to make up this quantity of land. The island is in no sense an accretion to his property, nor was it ever so situated with reference to it as to render it an appurtenance necessary to the enjoyment of his rights as a riparian proprietor.
It is impossible to lay down a definite rule which will determine every case involving a question as to what passes by a grant of land bordering on a water course. Whether islands are intended to be reserved or to pass must be determined from their situation and extent and the action of the Land Department. The Government is not bound to make all its surveys at one time. It may convey public lands by such boundaries and designations as it deems most practicable. We think the facts of this case do not disclose the intent to convey the island or any part of it to Smith, but that the acts of the Land Department, all taken together, must be construed to amount to a reservation of the land until it passed to Mary Norman, under whom the defendant claims. As having some bearing on the matters involved in this case, see Wiggenhorn v. Kountz, 23 Neb. 690; West v. Fox River Paper Co., 82 Wis. 647; Benson v. Morrow, 61 Mo. 345. We do not think the conclusion here reached conflicts with either Hardin v. Jordan, (140 U. S. 371,) or Lamprey v. Metcalf, (53 N. W. Rep. 1139). We think that, at most, the plaintiff’s boundary extends only to the middle thread of the north channel of the river. ■This conclusion renders it unnecessary to enter into consideration of the many questions discussed at length in the brief.
The judgment is affirmed. | [
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Doster, C. J.
The defendant in error is a corporation engaged in lending money on real estate security. After making its loans, it indorsed its mortgage bonds or notes with an assignment and guaranty in the following language:
“For value received, the Inter-State Loan and Trust Company of Leavenworth, Kansas, hereby assigns the within bond to--- or order without recourse, save that it guarantees: first, the prompt payment of interest thereon, at seven per cent, per annum, payable semiannually, until the principal is fully paid ; second, the payment of the principal within two years from the maturity.
“Provided, That if at any time the said Inter-State Loan and Trust Company shall tender to the legal holder of the said bond the amount unpaid thereon, with accrued interest, the said holder shall thereupon indorse and deliver the said bond, together with the mortgage securing the same, properly assigned, to the Inter-State Loan and Trust Company, or if he shall elect not to do so then this guaranty shall become and henceforth be null and void.”
Its custom was to make this assignment and guaranty, and lay the securities aside until a purchaser was found, to whom they were then delivered in the above uncompleted form ; the purchaser, if he chose, writing his name in the blank space as assignee. This assignment and guaranty was for the purpose of marketing the securities, and for no other purpose. The defendant in error became indebted to the Metropolitan National Bank and the Citizens’ Savings Bank, both of the city of Leavenworth. January 1, 1889, the plaintiff in error was president of the defendant in error corporation. He was also at that time receiver of the Metropolitan National Bank and assignee of the Citizens’ Savings Bank. On that day’the board of directors of the defendant in error passed the following resolution :
"Resolved, That the directors and officers of this company be instructed to pay the assignee of the Citizens’ Savings Bank, and the receiver of the Metropolitan National Bank, any indebtedness due them, either in the form of demand loans, or balances on book account, and any act tending to the payment of said debts is hereby confirmed and the officers or officer is hereby instructed to place on deposit any and all of the securities of this company, as security for the payment of any debts due said assignee or receiver.”
January 24, 1889, the plaintiff in error reported to the board of directors of the defendant in error that he had effected a settlement of the indebtedness due to the banks of which he was respectively receiver and assignee, whereupon the board noted their action upon the Company’s records, in the following language :
"President Crissey reported that he had effected a complete adjustment and final settlement of the claims and demands which the Metropolitan Bank and the Citizens’ Savings Bank or either of them had against this corporation, or which this corporation had against the said banks or either of them, by transferring $12,-700 in first mortgages belonging to this corporation, which transfer had been accepted in full satisfaction of all such claims and demands.”
In pursuance of the authority of this resolution, the plaintiff in error, as president of the defendant in. error, took to himself, as assignee of one of the banks and receiver of the other, the Company’s securities to the authorized amount. These securities were ne gotiable in form, and bore the assignment and guaranty above quoted. Subsequently, as assignee and receiver, he sold and delivered them to the Fredonia National Bank of New York, from which he subsequently repurchased them for himself as an individual. The indebtedness which they represent was not paid. No effort was made to secure payment from the makers of the instruments, but suit was brought, directly upon the guaranty, against the defendant in error. Findings were made, and judgment was rendered against the plaintiff in the court below, from which he prosecutes error to this court.
The court, among other things, found :
“ Said guaranties were placed upon said notes by defendant company with the intention that said notes should be sold upon the market for cash, and at the time of the delivery of said notes from defendant company to plaintiff as such receiver and assignee and at all times thereafter up to and including the time of the repurchase from the Fredonia National Bank he knew the custom of defendant company, the manner in which it had been doing business and the purpose for which the guaranties referred to were placed upon said notes.”
It is contended by the defendant in error that this is a finding that the securities of the Company, designed by it for a specific purpose known to plaintiff in error, were wrongfully diverted by him to another purpose, and that because thereof no recovery can be had by him. In making this contention, however, the defendant in ■error entirely overlooks the fact that the action of the plaintiff in error as its president was in pursuance of the authority of its board of directors, and that the diversion of the securities from the original purpose was authorized by the board. Granting that the original ■design of the Company in placing its assignment and guaranty upon the securities was to market them for cash, yet the board of directors, in authorizing a settlement of its indebtedness resolved that the plaintiff as its president “is hereby instructed to place on deposit any and all of its securities for the payment of any debts due said assignee or receiver” ; and, thereafter, upon report made by the plaintiff to the board of directors of what he had done in the carrying out of their instructions, they ratified his action “in transferring $12,700 in first mortgages belonging to this corporation.” No claim is made that the board of directors were ignorant of the fact that the securities which they had ordered placed on deposit as security for the payment of debts, and the transfer of which for such purpose they had ratified, did not then bear the Company’s indorsement and guaranty.
On the contrary the contention of the defendant in error is based upon the idea 6f knowledge by the board of directors that such assignment and guaranty had been previously indorsed upon the securities, and is also based upon the idea of knowledge upon their part of the purpose for which the indorsement had been made. With this knowledge of their own past actions and intentions, they directed a surrender'of the securities in payment of the Company’s debts, and subsequently, when the surrender was made, they ratified the action. It was they, not the plaintiff in error, who diverted the securities from the original design.
Some criticism is made of the conduct of the plaintiff in error in securing control of a majority of the stock of the defendant in error and then voting it to reduce the number of the directors, and also in voting into office a directory of his own friends who subsequently seemed to carry out his wishes ; and attention is also called to the fact that the resolutions of the board before quoted were not attested as, it is said, they- should be. These matters, however, did not go to the power of the board or to the validity of its proceedings. What is said by counsel for defendant in error concerning them seems to be by way of passing comment, and not in the form of legal objections.
It is contended that the guaranty indorsed upon the securities is not negotiable, and that the indorsement of assignment was not a completed contract, because the name of the assignee was not inserted in the blank for that purpose. Neither of these objections is tenable. A transfer by assignment, as well as by commercial indorsement, may be made in blank, and a guaranty of payment is at least assignable, if not negotiable ; and a guaranty, like an indorsement or assignment, may be made in blank. Brandt on Suretyship and Guaranty, vol. 1 ( 2d ed.), §§ 47-48.
One of the defenses in the suit upon the guaranty was the lack of consideration. As to this matter the findings of the court were contradictory. One of these findings was general in its terms, and in the following language : "There was no consideration for the guaranties indorsed upon the notes in suit.” Other and specific findings directly to the contrary were made, as follows :
"The defendant, Inter-State Loan and Trust Co., was indebted to said Metropolitan National Bank and to the Citizens’ Savings Bank.
"At that time (November, 1888), defendant had in its possession the notes sued on in this action, together with a large amount of other securities that said defendant, through plaintiff as its president, delivered to E. B. Crissey, as receiver of the Metropolitan National Bank and assignee of the Citizens’ Savings Bank, in payment of debts due from defendant corporation to said banks.
"At the time of the transfer of the securities in controversy from the Inter-State Loan and Trust Company to E. B. Crissey, as assignee of the Citizens’ Savings Bank and receiver of the Metropolitan National Bank there was an indebtedness due from defendant company to said banks in a sum between $7,500 and $12,750, but the exact amount of such indebtedness, the court is unable to determine from the evidence in the'case.”
The inconsistency between these findings of fact requires a new trial of the case.
Another of the court’s findings was that the plaintiff in error had made no effort to enforce the collection of the securities from the makers. The conclusions of law which the court drew from the facts do not indicate that the failure of the plaintiff in , . error to endeavor to eniorce collection from the makers of the securities tended to the defeat of his action, nor do we interpret the argument of counsel for defendant in error as being an assertion of the claim that it should do so. Inasmuch, however, as the court found upon the fact mentioned, it may be thought to possess materiality. We do not understand that a guaranty of payment at a particular time is only enforceable after effort to collect from the principal obligor. On the contrary, the law is that in default of payment by the maker at the time specified the guaranty becomes absolute and may then be sued upon. Campbell v. Baker, 46 Pa. St. 243; Cobb v. Little, 2 Me. 261; Breed v. Hillhouse, 7 Conn. 523; Mallory v. Lyman, 3 Pinney (Wis.), 443.
The judgment of the court below is reversed and a new trial ordered. | [
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Doster, C. J.
This was an appeal by the State from a judgment quashing an information. The information contained four counts. The first count was framed under the first part of section 95, chapter 100, General Statutes 1897, and charged the defendant, as trustee of an express trust, with embezzlement. The second count was framed under the latter part of the same section, and sought to charge the defendant, as an agent, with failure to deliver, upon demand, money which came into his jmssession as such agent. The third count was framed under section 97 of the same chapter, and sought to charge the defendant, as bailee, with the embezzlement of money. The fourth count aggregated nearly all the facts alleged in the first three counts, and charged the defendant with the embezzlement of money. The facts as charged in each of the counts are set out with much particularity of detail.
Summarized, they state that there was a fraternal and benevolent organization known as the Knights of Pythias, a subordinate lodge of which existed at Garden City, Finney County; that the defendant was a member of such lodge ; that he filled an office in it called Master of Finance ; that the duties of such office were defined by written rules prescribed in the by-laws and other regulations governing the lodge ; that such duties included the collection of dues from the individual members of the lodge and the payment of the money to another officer of the lodge, called the Master of Exchequer ; that, in accordance with these rules and regulations, the defendant, as Master of Finance, received from the members the-sum of one hundred and sixty dollars, which, instead of turning over to the Master of Exchequer, he converted to his own use.
For reasons not necessary to set forth, we are of the opinion that the court committed no error in quashing the second and third counts of the information. However, the first and fourth counts must be held good. Section 95, chapter 100, General Statutes 1897, makes embezzlement by trustees of express trusts punishable. The question • which arises under the first count of the information is : Was the defendant the trustee of such a trust ? 1 ‘ Express trusts are those which are created by the direct and positive acts of the parties by some writing, or deed, or will.” 2 Story’s Equity Jurisprudence (13th ed.), 283. The writings which evidence such trusts need not be signed by the party who takes upon himself the trust obligation. Trust instruments are more often unilateral in execution than otherwise. In Caldwell v. Matthewson (57 Kan. 258, 45 Pac. 416), the assignee under a deed of assignment for the benefit of creditors was held to be the trustee of an express trust. The terms of the trust — the agreement of the trustee to be bound by the writ-ling— may be evidenced by parol. Such being the [law, there is no difficulty in holding the defendant to the trustee of an express trust. The written rules and regulations of the society, contained in its constitution and by-laws, which provide among other things for the offices of Masters of Finance and Exchequer and which prescribe the duty of the one to collect and of the other to receive and disburse dues from the individual members of the lodge, constitute a trust instrument. It is reasonable to suppose- that upon becoming a member of the lodge the defendant subscribed to its constitution and other published regulations ; but, whether he did or not, his acceptance of the office to which he had been elected was an acknowledgment of his obligation to be bound by the printed or written rules pertaining to the administration of such office. Doing so, he accepted a trust, and made himself, by such act, the trustee of an express trust. The authorities are to such effect.
“A person who was trustee, treasurer and secretary of a savings bank was indicted for a misappropriation as a trustee. As secretary he received the money deposited, which, by the rules of the savings bank, it was his duty to hand over to the treasurer, who was required by the Savings Bank Acts to pay it over, when demanded', to the trustees, whose duty, as defined by the rules, was to vest it in the public funds in the names of the commissioners for the reduction of the national debt. He falsified his accounts, and appropriated to Ms own purposes part of the money so deposited with him as secretary, with intent to defraud. Held, first, that he was a trustee for the benefit of other persons. Held, secondly, that there was an express trust created by the rules, although they were made before the appointment of the trustee and the existence of the trust fund. Held, thirdly, that the rules of the savings bank were an instrument in writing.” 6 Am. & Eng. Encyc. Law, p. 482, note.
It cannot be claimed that the lodge was a partnership and the defendant one of the partners, and that a partner wrongfully making away with the funds of his firm is not guilty of embezzlement, upon the theory that one cannot be ° guilty of embezzlement from himself. Such associations as the one in question are not partnerships. The purposes of such organizations - are benevolent and fraternal, not for the conduct of business or the accumulation of profit. That they do not partake of the nature of partnerships, and that their fiscal or managing agents are guilty of embezzlement by the unauthorized conversion of their funds, is quite well shown in the case of Laycock v. The State, 136 Ind. 217. The first count of the information, therefore, should have been held good as against the motion to quash. So likewise the fourth count .should have been held good. Some averments in the second and third counts justified the court in ruling that they did not state facts sufficient to constitute public offenses, but, in the general summary made in the fourth count of all the facts stated in the preceding counts, the objectionable matter contained in the second and third counts was left out.
The judgment of the court below quashing the first and fourth counts is reversed for proceedings in accordance with the views herein expressed. | [
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Allen, J.
W. J. Jones brought a suit in the District Court of Lyon County against T. E. Lewis, a resident of Chicago, to recover $8000, which he claimed Lewis owed him. Writs of attachment were issued and levied on the lands in controversy in this case, situate in Lyon and Chase counties. Judgment was rendered in favor of the plaintiff in that action, and the sheriffs of Lyon and Chase counties were proceeding under writs issued to them to sell the land to satisfy the judgment. Thereupon Alice L. Kerr com menced this suit in the District Court of Lyon County against Jones and the sheriffs to enjoin the sales. She claimed title to the land under deeds executed to her by T. E. Lewis, her father, on the 2d of January, 1893. The attachments were, not levied until June 18 and 14. Her deeds were recorded on June. 17.
The only question in this case is whether there was such a delivery of the deeds before the levy of the attachments as was necessary to vest the title in Mrs. Kerr. The evidence shows that Thomas E. Lewis resided at Wheaton, Illinois ; that Alice L. Kerr, his daughter, resided in Nebraska ; that on the second of January, Lewis executed the deeds under which Mrs. Kerr claims the lands now in controversy, as well as deeds for other property to other daughters, and delivered them all to Edward J. Lewis; his son, with directions to give them to the grantees. After the execution of these deeds Mr. Lewis still owned property, worth at least $100,000, and owed no other debts.
Where a grantor executes a deed to land as a gift and delivers it to a third person for the grantee, the acceptance of the deed will be presumed, and it will ordinarily take effect from the time of delivery to such third person. This rule is very generally applied in cases of voluntary gifts and advancements by parents to their children. Douglass v. West, 140 Ill. 455; Winterbotton v. Pattison, 152 id. 334; Crabtree v. Crabtree, 159 id. 342; Church v. Gilman, 15 Wend. 656; Hinson v. Bailey, 73 Ia. 544; Ball v. Foreman, 37 O. S. 132; Brown v. Westerfield, 47 Neb. 399, 66 N. W. 439. This proposition of law is not controverted by counsel for plaintiff in error, but he contends that the evidence fails to show such a delivery as the law requires. On this question of fact the court found in favor of the plaintiff below, and the evidence is sufficient to sustain the finding. Mr. Lewis testified that he gave the deeds to his son for his daughter, Alice, with the direction to give them to her; that he thereafter had nothing more to do with them. The deeds were produced at the trial, and introduced in evidence by her attorneys. They had previously been placed on record. The other facts shown in evidence and commented on by counsel were proper to be considered in determining whether a delivery was in fact made, but are not conclusive in their character, and are insufficient to warrant a reversal of the finding of the trial court on the question of fact. The suggestion that the question as to the delivery is to be determined from the deposition of Lewis and that this court is not bound by the finding of the trial court does not aid the plaintiff in error, for his testimony shows a good delivery under the law as laid down in the authorities cited. The same rule has been applied in this state to the case of the delivery and acceptance of a chattel mortgage. National Bank v. Ridenour, 46 Kan. 718, 27 Pac. 150.
The judgment is affirmed. | [
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Johnston, J.
A preliminary question is raised as to the limits or extent of the review that may be had in cases coming to this court by discretionary certification. No limits are fixed by the statute authorizing certification or by the rule of court pro-J viding the methods of procedure in such cases. On the other hand, the statute in effect provides that when cases are brought to the Su preme Court in that way, it has the same power and authority in reviewing and determining them that it would have had if such cases had been carried to the Supreme Court in the first instance. Gen. Stat. 1897, ch. 84, § 23. The statute plainly contemplates a review of the case de novo, and any exception or point which was available in the Court of Appeals will be available in this court.
The Court of Appeals held in this case, as it has in some others (Dudley v. Barney, 4 Kan. App. 122, 46 Pac. 178), that certain errors occurring during the trial could not be considered because the record did not affirmatively show that the motion for a new trial was filed at the same term at which the ... . _ _ , ,, -, verdict) was rendered, and that unless there is an affirmative statement of that fact in the record it will be presumed for the purpose of upholding the judgment of the court below that the motion was filed at another and different term of court than the one at which the verdict was rendered. We cannot approve of this ruling. It rests upon a mere presumption which can have no force unless it is based on facts, and can never be indulged where the facts disclosed in the case are inconsistent with such presumption, nor where it is overcome by conflicting and stronger presumptions. Where the proceedings appear to be continuous and the various steps iii the case appear to have been taken in regular order and from day to day, or within the time required by law, and there is nothing to indicate the ending of one term and the commencement of another, the natural inference is that everything was done at the same term of court. Railway Co. v. McClure, 58 Kan. 109, 48 Pac. 556. If the record showed that a long time had elapsed between the verdict and the filing of a motion for a new trial, or that before it was filed the time had arrived for the commencement of another or different term of court in the same or another county of the district, there might be a basis for the presumption ; but the facts in this case do not warrant the inference or presumption that another term of court had intervened before the motion was filed. The verdict was returned June 24, and the plaintiffs in error filed their motion for a new trial June 27, which was within the statutory time, and the defendants in error, who are insisting that it was not filed at the prosier time, filed their motion for a new trial on the same day. It also appears that other steps were taken in the trial of the cause on the day on which the motions for a new trial were filed. On that day Miller & Go. filed their motion to set aside the general verdict and one of the special findings and asked the court to give them judgment on the remaining special findings. The motion was sustained in part by the court. It thus appears that the case was considered on its merits on the same day on which the motion for a new trial was filed, and nothing in the record or in the case indicates that the case had prior to thát time been continued or reserved to another term of court.
Another consideration is that the court entertained the motion, and the ruling thereon implies a consideration of its merits. If it was not filed in time, it should have been dismissed, but the court denied the motion, and the denial implies a consideration. This inference is sufficient at least to overcome the presumption that the motion was overruled because it was not filed in time.
The action of the trial court in setting aside the general verdict, and in ignoring or setting aside special finding number 23i, which is to the effect that the defendants did not at the time of demand or at any time thereafter have the possession or control of the goods demanded, cannot be sustained. That finding appears to be inconsistent with finding eighteen, and possibly other of the findings which the court deemed to be inconsistent with the general verdict; but while this inconsistency may have afforded grounds for setting aside the general verdict and granting a new trial, it did not warrant the court in overthrowing the general verdict and then rendering judgment on such inconsistent special findings. Finding 23i, which was ignored or set aside by the court, appears harmonious with the general verdict which the jury returned, but the court set aside the general verdict of the jury and substituted its own judgment based on contradictory findings. If the special findings were'contradictory, and some of them in conflict with the general verdict, neither party is entitled to judgment, but it is the duty of the trial court to grant a new trial. Shoemaker v. Railroad Co., 30 Kan. 359, 2 Pac. 517; E. M. N. & S. E. Rly. Co. v. Maxwell, 39 id. 651, 18 Pac. 819; Latshaw v. Moore, 53 id. 234, 36 Pac. 342. It cannot be successfully contended that the special finding was immaterial.
It appears that Wolfe & Son were merchants in Guthrie and Oklahoma City. They borrowed money from the banks and others, and subsequently, to secure these debts, which were admittedly just and honest, they executed a mortgage, and the mortgagees were given possession of the goods. Miller & Co. who had sold the goods to Wolfe & Son, did not demand the goods until attachments and other proceedings had been begun against Wolfe & Son, and in pursuance of writs which they held the officers had entered the stores and seized their goods. Notwithstanding the seizure, the mortgagees insisted upon the validity of their mortgage and were in the store at Guthrie a part of the time with the officers. Their agents how ever were finally ejected from the building, and the goods were sold under the levies which had been made by the officers. Miller & Co. brought their action against the banks, and other defendants, alleging the transfer of the possession of the goods to the defendants, the demand for the possession, and the refusal of the demand, and also the conversion.
The defendants answered with a general denial and alleging that the mortgage had been taken by them to secure an indebtedness, that the goods were transferred under the mortgage, and that the goods were afterward taken from the defendants under certain judicial proceedings in Oklahoma. Considerable proof was offered as to the possession of the goods when the demand was made, and much of it tended to show that prior to the making of demand the goods had been actually seized and possession taken by the United States marshal and the sheriff under writs which they held, and that at no time thereafter did the mortgagees have any real or actual possession or control of the goods. There is some confusion and conflict in the testimony as to who was actually in possession of the goods at Guthrie from December 19 to December 24, but it appears that Scott, who represented the mortgagees, was in possession of the store at Oklahoma City during that time.
The court tried the case throughout on the theory that to constitute a conversion the defendants must have had possession of the goods, and must upon demand have refused to surrender possession o± the same. As further indicating ° the theory upon which the case was tried, the court instructed the jury as follows :
“In order to entitle the plaintiffs to recover in this action, they must prove that at the time they made the demand claimed to have been made in this case of the defendants, that at that time the defendants had the possession or control of the goods in controversy; for if at that time they did not have control or possession of the goods, and did not afterward acquire them, then they would not be liable.”
This must be treated as the law of the case, and in pursuance of this instruction the jury specifically found that the goods in the Guthrie store of the value of $1100 were not in the possession or control of the defendants at or after the time when the first demand was made for them. The finding, therefore, appears to be based on testimony and to be within the rule of law declared by the court, and it is not easy to say that it is immaterial or that the general verdict, which is consistent with it, should be set aside for any other reason than that the findings themselves were contradictory. As the case was in fact tried, the matter of possession was an important issue, and the testimony thereon was submitted to the jury upon an instruction the meaning of which is not in doubt. Involved in that issue and the finding thereon is the claim of $1100, nearly four-fifths of the amount for which judgment was rendered. Under the rule of law declared, the taking of the property by the mortgagees was not tortious, nor the withholding of possession a wrong against the plaintiffs below until there was a demand and a refusal; and there was no conversion then, if the mortgagees had no possession of the property actual or constructive and could do nothing toward giving plaintiffs possession of the same. The property was not concealed, and the plaintiffs had full opportunity to know who was in control of the same, and that it had been seized by the officers of the law on legal process. A demand on those who had control and the power to give possession of the property would have been more reasonable, and probably more effectual, than one upon those from whom the property had been previously and forcibly taken. There is no claim of a conspiracy between the mortgagees and the officers, or that they occupied any other than antagonistic relations, and there is nothing to show that the mortgagees ever afterward came into possession of the property or received any benefit from the disposition of the same.
Our conclusion is that the court could not ignore or set aside an important special finding, and then render judgment on the remaining findings contrary to the general verdict.
The judgment will be reversed and the cause remanded for a new trial. | [
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Doster, C. J.
The defendants in error were indebted, upon promissory notes, to the Cuba State Bank. The bank became insolvent, and was placed in the hands of one Chauncey Perry as receiver. The receivership was closed, and the receiver ordered to turn over some residuary assets of the bank to the plaintiff in error as a trustee. Among these assets were the notes of the defendants in error. Suit was brought upon them. The action was defended upon the ground that an accord and satisfaction had been had with Perry, the receiver, by the terms of which certain real estate was conveyed and certain shares of corporate stock were assigned in payment of the notes. A trial was had and a verdict returned and a judgment rendered for defendants, from which judgment plaintiff prosecutes error to this court.
There was no record in the receivership case of any order allowing the receiver to make the compromise of indebtedness pleaded by defendants. A witness, however, was allowed to testify to the , . , , .. , * making of such an order by the court, and this' is assigned as error. It was error. It is elementary law that judicial proceedings are only provable by the record. The record entries of judgments are indispensable to furnish the evidence of their existence, when they are made the basis of claims or defenses in other suits. 1 Black on Judgments, § 106; Jackson v. Latta, 15 Kan. 223; Porter v. Wells, 6 id. 454.
The court, in one of its instructions, submitted to the jury the question of fact, raised on the above stated evidence, whether authority had been conferred upon the receiver to effect compromises. This, like the reception of the evidence, was error. We are of the opinion that if the receiver had no authority to compromise with the defendants in error, but nevertheless did compromise with them, any money received by him by way of such compromise, and also the cash avails of any property received by him in a like way, should be credited on the obligations in suit; but under section 267 of the Civil Code as contained in the General Statutes of 1897, the receiver had no authority to compromise without an order of court, and such order if made was provable only by the record.
One of the defendants testified upon the trial to the compromise transaction with the receiver. It appeared that Mr. Perry had since died, and the testimony was objected to as incompetent, under section 333 of the Civil Code (General Statutes 1897, ch. 95, § 333), upon the ground that Pulsifer, the plaintiff, was an assignee of the Bank’s assets, 0 from Perry, the deceased receiver. This objection is not tenable. In National Bank v. Beard (55 Kan. 773, 42 Pac. 320), it was held that neither an attachment creditor, nor the sheriff in an attachment sale, was an assignee of the attachment debtor under the statute in question; and, therefore, that a vendee of the deceased attachment debtor was not incompetent to testify to transactions had with him. The raison d’etre was expressed by Chief Justice Martin in a sentence of his opinion : “ We think that the common acceptation of the word ‘ assignee ’ is limited to an assignee in fact, and does not comprehend an assignee by operation of law.” Nor does it comprehend an assignee through the medium of the legal operation of an order of court, as in this case. There was therefore no error in the reception of the testimony in question.
There was error, however, in the reception of parol evidence to prove the making of the judicial order in question, and for this reason the judgment of the court below is reversed, with directions to grant a new trial of the case. | [
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Johnston, J.
In January, 1892, Lucy B. Armstrong, a widow, died testate at her home in Kansas City, and left surviving her three sons and one daughter. The home place, on which she had resided for a great number of years, consisted of a five-acre tract of ground within the corporate limits of Kansas City-. For about two years before her death there were living with her a married daughter, Caroline A. M. Hartman, and Daisy Hartman, a daughter of Caroline and a granddaughter of the. deceased. After the death of Mrs. Armstrong, Mrs. Hartman and her daughter, Daisy, continued to occupy the Armstrong home, which they claimed as a homestead. In the will of Lucy'B. Armstrong the home place was bequeathed to her son Henry, while other pieces of property were given to the remaining children. The will contained the following language :
And whereas the land thus described and devised to my son Henry includes my home, and all the appurtenances thereto belonging, I enjoin my son Henry to keep the dear old home, so that if any of my children should be homeless it should be a refuge for him, her or them.”
On the application of the executor an order was made by the probate court directing a sale of the home place for the payment of the debts of the estate. Before the order was made Mrs. Hartman and her daughter applied to the probate court to have one acre, including the house, set apart from the remainder of the land, claiming the same as a homestead of the children and surviving family of Lucy B. Armstrong. Their application was denied by the probate court, and on appeal to the district court the order of the probate court was affirmed.
The Hartmans bring the case here, insisting that they constituted a part of the family of Lucy B. Armstrong bbfore her death, and that by virtue of the interest which they held in the property and the con tinued occupancy of the same the house and. one acre of ground upon which it stood was their homestead, and that the same could not be sold or disposed of without their consent. The testimony is to the effect that wlien Mrs. Armstrong died the youngest of her children was about forty years of age, and Caroline was at that time about fifty years old. The husband of Caroline and the father of Daisy was not with them while they were at the Armstrong home, but where he was and why he was absent does not clearly appear. The Hartmans owned a farm in Allen County, which they occupied as a home for about fifteen years, but they left it several years before they went to Kansas City and have never since occupied it as a home.
We think there is nothing substantial in their claim of homestead. By the terms of the will the title to the property in controversy passed absolutely to Henry Armstrong when his mother died. The Hartmans do not constitute a part of his family, and, anyway, he is not asserting an exemption nor claiming the property as a homestead. The exemption provided for in the Constitution and statute exempts lands “occupied as a residence by the family of the owner,” and, as we have seen, neither Caroline nor her daughter, Daisy, who ivas about twenty-one years of age at the time of the trial, was a member of the family of the owner. While they might have been regarded as members of the family of Lucy B. Armstrong if during her lifetime she had claimed the property as a homestead, they are not members of the family of any one who has a present interest in the same. They are heirs or children of an intestate, within the meaning of the exemption provision of the law of descents and distributions, and hence no claim can be made in their behalf under that provision. The claim made for them is rested mainly on the theory that under the terms of the will they acquired an interest in the property sufficient to uphold a homestead. There may be absolute or qualified ownership of property, and this court has taken a very liberal view as to the kind of title or interest to which a homestead right will attach. The terms of the will do not indicate a purpose on the part of the testatrix of giving Henry anything less than an absolute and unlimited ownership.
The precatory clause hereinbefore quoted, suggests that her desire is that Henry should keep the old home and give refuge to any of her children who may become homeless, but it is not in the nature of a direction nor is it a limitation of his right in the property devised. The prior provisions of the will clearly import absolute and unrestricted ownership, and as the precatory words only express hope and recommendation they do not create a trust or vest an interest in the brothers or sisters of the devisee. After giving Henry the home in language similar to other absolute gifts, she appears to have suggested to him that he keep the same, relying upon his discretion and leaving him to judge whether her suggestion should be adopted or not. It is a general rule that wherever a discretion is given for carrying out such requests, and where the prior dispositions of the property import a complete transfer of ownership, the courts will not hold the same as the creation of a trust. It follows, therefore, that the Hartmans had no interest or right in the property upon which to base a claim of homestead.
The judgment of the District Court will be affirmed. | [
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Johnston, J.
O. L. Newcomer was prosecuted upon the charge of feloniously having had sexual intercourse with Bertha Ickes, an unmarried female under the age of eighteen years. A conviction followed, and sentence of the court was imprisonment in the penitentiary for a term of five years. It appears that shortly after the act of intercourse the defendant was arrested upon a charge of rape, committed on February 20, 1897; but the parties interested were brought together, and it was agreed that a marriage should take place between the defendant and Bertha Ickes, and that the prosecution should be discontinued. The marriage occurred aud the prosecution was dismissed, and the costs of the same taxed to the defendant. They lived together as man and wife until after the birth of the child, which occurred on October 12, 1897. During that time he had employment in the community where they lived, and his earnings were largely-used in providing a home, and in the protection and support of Ms wife. After the Mrth of the child, and about the first of November, he obtained a situation as telegrapher at Enterprise, Kansas ; and he states that shortly after going there, reports reached him that his wife had had improper relations with another young man prior to his marriage, and that the child was not his own. On November 25,1897, he wrote a letter to his wife’s father, calling his attention to the reports which had reached him, and stating that he did not intend to longer live with her.
Soon after the receipt of this letter, the father of his wife instituted the present proceeding, by filing a complaint charging the defendant with having had unlawful and felonious intercourse with Bertha Ickes on February 9, 1897. At the trial the fact of unlawful sexual intercourse was well established, and in fact it was finally admitted by the defendant. It was also shown that the girl was less than sixteen years of age when the offense was committed, and therefore was incapable of giving a valid assent to the sexual act.
As a defense, Newcomer relied solely on his marriage with the girl, claiming that it was entered into in good faith, and asserting that he still desired to live with his wife during the life of each of them, but that he was prevented from doing so by his father-in-law, whose influence and acts prevented his wife from returning to live with him, and who had been instrumental in causing the commencement of the prosecution.
. In behalf of the defendant it is argued that the evil consequences of the unlawful act have been averted by the marriage ; that when the parties to the act voluntarily, and in good faith, entered into the marriage relation, the offense was condoned, and that the welfare of the parties and their offspring requires and the interests of the public will be best subserved-by the ending Of the prosecution.
The difficulty with this contention is that the law does not provide that the offense may be expiated by marriage or condoned by the injured .female. Her consent to the sexual act constitutes- no defense, and neither her forgiveness nor anything which either or both will do, will take away the criminal quality of the act or relieve the defendant from the consequences of the same. The principle of condonation which obtains in divorce cases where civil rights are involved has no application in prosecutions brought at the instance of the State for the protection of the public and to punish a violation of the law. It is true, as stated, that society approves the act of the defendant, when he endeavors to make amends for the wrong done the injured female, by marrying her, and usually a good faith marriage between the parties to the wrong, prevents or terminates a prosecution ; but the statute which defines the offense and declares punishment therefor, makes no such provision. If the defendant has acted in good faith in marrying the girl, and honestly desires to perform the marital obligations resting upon him, and is prevented from doing so by the influence and interference of persons other than his wife, it may constitute a strong appeal to the prosecution to discontinue the same, or to the Governor for the exercise of executive clemency, but as the law stands it furnishes no defense to the charge brought against the defendant.
The judgment of the District Court will be affirmed. | [
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Doster, C. J.
In 1882 the plaintiff in error instituted against James Adair and others an action to quiet title to real estate. In his petition he described the land as follows :
“Commencing at a point in the northern boundary of a tract of land known upon the recorded plat of the Gist survey as the Budd Tract 9.07 chains west of the northeast corner of said tract, thence north with a magnetic variation of 10 degrees 45 minutes east 17.94 chains to the southern boundary of the U. S. Military Reserve ; thence north 80 degrees E. 4.756 chains ; thence south 10 degrees 45 minutes east 18.16 chains ; thence west 11 degrees .06 minutes, 4.57 chains to the place of beginning, and containing 8.25 acres, and being in the city of Leavenworth, county of Leavenworth, State of Kansas.”
Service was made by newspaper publication, in which the land was described as follows :
“The following described lands in the city of Leavenworth, county of Leavenworth, state of Kansas, to wit: Commencing at a point in the northern boundary of a tract of land known upon the recorded plat of the Gist survey as the Budd Tract, 9.07 chains west of the northeast corner of said tract, thence north with a magnetic variation of 10 degrees 45 minutes east 17.94 chains to the southern boundary of the United States Military Reservation, thence north 80 degrees east 4.756 chains, thence south 10 degrees 45 minutes east 48.16 chains, thence west 11 degrees .06 minutes 1.57 chains to the place of beginning, and containing 8.25 acres.”
It will be observed that in these descriptions there are variances in the statement of distances in the last two calls. In the petition, the distance south is stated tobe 18.16 chains; in the publication notice, 48.16 chains. • In the petition, the distance west is stated to be 4.57 chains ; in the notice, 1.57 chains. However, in both petition and notice the last calls are carried to the point of beginning. Pretermitting this last stated fact, the differences in description between petition and publication notice can be substantially-indicated by the following diagrams :
Judgment as prayed for was rendered in the case. In the judgment the land was described as in the petition. Afterwards, the defendant in error in this case secured possession of the land in question and the plaintiff in error brought ejectment against him. Upon the trial the plaintiff in error offered in proof of his title the record in his former case against Adair and others. To this record objection was made, for the reason that the publication notice did not describe any land whatever, and was therefore void, and the judgment based upon it likewise void. This objection was sustained. The sole ground of error is the ruling of the court sustaining it.
Our judgment is that the court was in error. The attack upon the publication notice through the judgment based upon it was a collateral one, and must therefore be viewed with less favor than otherwise. All reasonable intendments will be indulged in for the purpose of upholding the judgments. We think, notwithstanding the error in land description in the publication notice, the judgment was not subject to collateral attack. The general rule in the construction of land surveys and land descriptions in deeds is, that distances and bearings must be disregarded as against monuments or marks. McAlpine v. Reicheneker, 27 Kan. 257. In the publication notice, the calls did not specify any monuments or marks, but they did specify a correct and ascertainable point of departure and return. We know of no reason why a known point of departure and return should not control, like ;a fixed monument, as against distances and bearings ; .and we can conceive of no reason why the rule allowing monuments and points of departure and return control over distances and bearings should mot apply in the case of land descriptions in publication notices, as well as in deeds inter partes or the field notes of a survey. Applying this rule to the description contained in the publication notice, the prolongation of distance in the next to the last call and the shortening of distance in the last call, together with the error of direction in the last call, -will be disregarded. The last call is for a return to the point of beginning ; and this is controlling. Even were we not to disregard the error of distance in the call next to the last, but were to disregard only the error of distance and bearings in the last call — that is, to proceed, under the last call, by a direct line from the preceding incorrectly stated point of departure to the place of beginning — the tract thus described, while erroneously embracing more land than the tract in question, would nevertheless embrace such tract, and all of it.
The ruling of the court below, rejecting the record in the case of Douglass v. Adair and others, was erroneous, and the judgment will be reversed with directions to award a new trial of the case. | [
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Allen, J.
The defendant, H. C. Swisher, as sheriff of Osage County, attached a stock of lumber in Over-brook, under an order of attachment issued in an action brought by William Carlisle & Co. against Gilmore & Britte. The property was afterward sold by the sheriff to satisfy judgments rendered in favor of Carlisle & Co. against Gilmore & Britte. The firm of Gilmore & Britte was composed of C. M. Gilmore, a son of the plaintiff, and W. A. Britte, a son-in-law. T. M. Gilmore brought this action against the sheriff and his bondsmen, claiming that he was in the possession of the property attached at the time of the levy, by virtue of a chattel mortgage executed to him by Gilmore & Britte to secure the payment of the sum of $3226.90. He alleged a wrongful taking and conversion of the property by the sheriff under the attachment, and asked judgment for the value of it. The defendants answered, admitting that Swisher was sheriff of Osage County and that, the other defendants were his bondsmen, and admitting the levy of the attachment, but denying that the plaintiff was the owner of, or had any lien on the attached property. The answer charged a conspiracy by the plaintiff and the defendants in the attachment suit to defraud the creditors of Gilmore & Britte, and that the mortgage under which the plaintiff claimed was without consideration and fraudulent. The case was tried to a jury, and resulted in a verdict for. the defendants. The plaintiff brings the case here alleging numerous errors in the proceedings.
At the trial the defendants offered in evidence a property statement made to the R. G. Dun & Company Agency, which they claimed was made out and signed in the name of Gilmore & Britte, by W. A. Britte. Britte being called by them, testified that the signature to the statement was not his. The defendants then sought to prove by expert witnesses the genuineness of the signature, and for that purpose produced a large number of letters purporting to be signed by Gilmoi’e & Britte, and used them as a basis of comparison by experts for the purpose of proving the genuineness of the signatures to the property statement. The-signatures to these letters were not admitted to be genuine, and most of the proof with reference to their genuineness was that they were letters received by mail in the due course of business, and opinions of witnesses that they were genuine.
There is much diversity of opinion, as we remarked in Gaunt v. Harkness, 53 Kan. 405, 36 Pac. 739, as to rules relating to the proof of signatures by experts based on a comparison of writing. . The most liberal rule requires that the writings used as a basis for comparison with the disputed signature shall be clearly proved to be genuine. Without attempting to declare a definite rule on the subject, we are of the opinion that, in a case like this, where the writing itself to which the disputed signature is affixed is merely evidence of a collateral fact, and is offered only for the purpose of proving fraud on the part of persons not parties to the action, the signatures used as a basis of comparison should be such as are confessedly genuiné. In trying the question of the genuineness of the signatures to letters offered, the jury would be taken away from the main issue and have their attention directed to a collateral matter having no bearing whatever on the case in hand. The exhibits offered, thirty-five in number, are not claimed to have any relation to the issues in the case. It was error to allow experts to give their opinions as to the genuineness of the signature to the property statement merely from a comparison with the signatures to the letters.
It is contended also that there was error in the admission of the property statement itself. If this statement was in fact made by Gilmore & Britte, it was a circumstance to be considered by the jury in determining whether they were guilty of the fraud charged. Of course, in order to affect the plaintiff, it was necessary to connect him with the fraud by other proof.
It seems to be conceded that the plaintiff had furnished his son and son-in-law substantially the amount of money represented by the note and mortgage ; but the defendants contend that whatever he had furnished them was by way of gift, and not as a loan, and that the execution of the note and mortgage but a few days prior to the levy of the attachment was the result of a scheme devised to defeat Carlisle & Go. and other creditors. T. M. Gilmore appears to have been a wealthy farmer, who advanced money to his son and son-in-law to carry on their business at Overbrook. That the note and mortgage were executed, and the mortgage recorded prior to the levy of the attachment, are conceded facts. The plaintiff’s testimony tended to show that he was in possession of the stock of lumber at and before the time the attachment was levied. The instructions to the jury were very long. It is impracticable to copy them, or even such parts as are claimed to be erroneous. The jury were told, among other things —
“ That every sale or'conveyance of personal property unaccompanied by an actual and continued change of of possession -in law shall be deemed to be void as against existing or subsequent creditors, until it is shown that such sale was made in good faith and upon sufficient consideration, or if the conveyance was a mortgage until it is shown that such mortgage was executed and was forthwith filed for record in the office of the register of deeds of the county, and you are further instructed that in this case, where property alleged to have been mortgaged is retained in charge of the mortgagor, such retention is prima facie evidence of fraud unless you further find from the evidence that a good and valid chattel mortgage given in good faith for a good and valid consideration, was taken by the plaintiff and recorded in the office of the register of deeds of Osage county, Kansas, for the honest -purpose of securing a bona fide indebtedness, and without any intention of hindering, delaying, or defrauding the creditors of Gilmore & Britte, or any other dishonest purpose in fact or law, that the evidence and these instructions might indicate.”
The jury were also told that the burden was on the plaintiff to prove the good faith of the transaction ; and, in effect, that the proof must be clear and convinci-ng> an<3- ^Ie vendee must not only have paid a fair consideration, but must have had no knowledge of any intent on the part of the vendors to hinder or delay creditors, and that it was the duty of the plaintiff to make diligent inquiry into the motives and purposes of the vendors ; that a mortgage of all or nearly all the property of the mortgagors to a near relative, where the mortgagors take charge of the property for such relative, affords ground of suspicion, and calls for satisfactory proof of the good faith of the transaction, and if the good faith is not apparent they must find for the defendant; that if the plaintiff gave money to his son, the burden of the proof was upon the plaintiff to show that he dealt with his children as debtor and creditor; that where a creditor obtains security, for the actual amount due, on more property than is necessary to secure the debt, and the debtor has not sufficient left to enable other creditors to secure their claims, the taking of such a mortgage is a badge of fraud. All the foregoing propositions incorporated in the instructions are erroneous as applied to the case on trial.
The rule with reference to a sale of property unaccompanied by a change of possession was altogether inapplicable to this case. The plaintiff claimed as mortgagee, and was under no < obligation to take possession of the property. If the defendant took possession of the property before the levy of the attachment, it was immaterial whether his mortgage was recorded or not. The retention of the possession of the mortgaged property by the mortgagors, if they did retain it, was not prima facie evidence of fraud. The burden of proof to show good faith did not rest on the plaintiff. Fraud is never presumed. The burden was on the defendants to establish the fraudulent character of the transactions between the' plaintiff and the mortgagors. Nor would knowledge on the part of the vendee of a purpose of the mortgagors to defraud their creditors necessarily defeat or tend to defeat his mortgage. If the transaction between him and them was honest, if they really owed him the debt, and gave him security for that only, their purposes in regard to the payment of their other debts could not affect his security. Nor was the plaintiff bound to inquire into the motives and purposes of the mortgagors. Although the relationship of the plaintiff to the mortgagors was a circumstance which it was proper for the jury to consider in determining the good faith or fraud connected with the mortgage, it was error to charge as a matter of law that such relationship afforded grounds for suspicion and called for satisfactory proof of good faith;
In other parts of the instructions the law applicable to the case was correctly given, though with much unnecessary repetition and elaboration. The real question at issue was whether the money which Gilmore & Britte had received from the plaintiff was a gift or a loan. If a gift, it was a fraud on the creditors to take a mortgage to secure its return. If aloan, it was a valid indebtedness, for which he, like any other creditor, might lawfully ask security for the amount actually due. It was proper to admit testimony as to all the’ doings of the parties bearing on the validity or invalidity of the debt, the circumstances surrounding their business career, the receipt of the money from the plaintiff, the use to which it was put, the facts connected with the execution of the note and'mortgage, the possession of the property, the solvency or' insolvency of the mortgagors, and all other facts indicative of the validity or invalidity of the plaintiff’s claim and of his purpose in taking the mortgage and claiming the mortgaged property. If on the whole testimony it appeared that the note represented only a valid and subsisting indebtedness to the plaintiff from his son and son-in-law, and no fraudulent conduct on his part was shown, the plaintiff was entitled to re cover. If on the other hand it represented in whole or in any substantial part merely gifts to them, and this method was taken to prevent other creditors from resorting to the mortgaged property for the payment of their claims, the transaction would be fraudulent and the plaintiff could not recover.
For the errors pointed out, the judgment mustbe reversed and the cause remanded for a new trial. | [
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Allen, J.
On January 17, 1863, John Haenky married Mary Anna Weishaar, then a widow, having five children by her former husband. At the time of the marriage, she resided with her children on eighty acres of land in Jefferson county, a little more than twenty acres of which was in cultivation, and on which there was a small log house. This tract belonged to her deceased husband at the time of his death, which occurred in 1857. After their marriage, Haenky and wife resided on this tract of land, and continued to occupy it as their homestead until January, 1892. The plaintiff in error, Prank Haenky, is the only child born to John and Mary Anna Haenky. On the twenty-first of November, 1865, Haenky obtained from one Gibbs, who held a tax title thereto, a quitclaim deed for a quarter-section of land adjoining the tract on which he lived. Afterward, in January, 1869, he obtained an. administrator’s deed to the same land, reciting a consideration of $2250. On the fourth day of May, 1883, he obtained a deed from Cyrenus Hudson for eighty acres of land in an adjoining section. August 23, 1892, certain lots in the town of Nortonville were deeded to him. On the twenty-fourth of September, 1891, John Haenky made a will, the provisions of which were accepted by his wife, by the terms of which he gave the use, rents and profits of the farm lands to which he had obtained deeds as before stated to her during her life, and after her death to her five sons and Frank W. Haenky, to be divided equally among them. Mary Anna AVeishaar died October 20, 1892. On the twenty-seventh of January, 1893, John Haenky deeded the Nortonville property to his son Frank. On the thirty-first of the same month he executed another will, by which he revoked that executed on the twenty-fourth of September, 1891, and gave to the children which he had by his first wife one dollar each, reciting that he had provided for them to some extent during his life. He devised his farm lands to his son Frank, and whatever interest he had in the original eighty acres to the five Weishaar boys. On the sixth of October, 1894, he executed a deed conveying the farm land, the title to which stood in his name, to Frank Haenky. John Haenky died on the first of June, 1895. The four surviving sons of Mrs. Haenky by her first husband brought this action to obtain a cancellation of the'deeds executed by John Haenky to his son Frank, and partition of the land in equal shares to the AVeishaars and Frank Haenky.
The claim of the plaintiffs was that there was an antenuptial contract, in writing, executed by Haenky and wife, which determined the disposition of the property after their death, and that John Haenky had no power to make any disposition of the lands in controversy inconsistent with the terms of that agreement. The defendant denied that any antenuptial contract was ever entered into, and contended that the only contract in fact made was one executed and acknowledged on the twenty-fourth day of March, 1863, and recorded in the office of the .register of deeds of Jefferson County on the fifth of May, 1866. The original instrument is incorporated in the case-made, and it is conceded that its terms are wholly insufficient to confer on the plaintiffs below the rights claimed by them. The contention on their behalf was, and is, that a prior contract had been duly made and executed though never recorded ; that this contract had been preserved by John Haenky, and had been repeatedly referred to, and recognized by himself and wife in the presence of the other members of the family and of persons visiting at their house. Although several witnesses claimed to have seen the writing which was referred to as a contract between Haenky and wife with reference to their property, only one witness claims to have ever read it or to know even the substance of what was contained in it. Charles Tholen testified that he was a lawyer, and in 1863 had an office in Leavenworth, with Judge Mc-Cahon ; that Haenky and Mrs. Weishaar came to his office before they were married, and that he drew an antenuptial contract, which was then signed by them. The contents of the instrument are stated by him, as follows :
“The contents of that paper were that she having a piece of property, a farm in the country, I think she said Jefferson- County but I would not be positive about it, eighty acres of land, having a farm and having five children, five sons, and Haenky, who at ’ that time kept a boarding house which was on Seneca street, between Third and Fourth, was about to be married to her having sons in Illinois or children in Illinois, and having also some property there, this paper provided that if after the' marriage, if she should die, Mrs. Weishaar should die, that her children should inherit her property and also all the accumulations of that property and Haenky should have the right of possession during his lifetime and the enjoyment of that property and accumulations thereof as long as he lived; that after his death the property should be divided in shares between Mrs. Weishaar’s children and whatever children they might have, Mr. Haenky and Mrs. Weishaar, during their, marriage, such child or children should share in equal share, together with those five children. And the children in Illinois of Mr. Haenky to have nothing; and then again on the other side, if Mr. Haenky should die first then Mrs. Haenky or her children did not inherit any property of Mr. Haenky in Illinois, Illinois was mentioned I recollect that. That was about the contents of the paper.”
The only question it seems necessary to discuss, of the many raised on the record, is the legal effect of such an instrument as Tholen testifies was drawn by him and executed by Haenky and Mrs. Weishaar. Neither of the parties at that time had any title to any of the property in controversy in this case. The eighty acres which belonged to Mrs. Haenky’s first husband is not, and never has been, claimed by Frank Haenky, nor does he claim any interest in it. The dispute is solely over after-acquired lands, the title to which was taken by John Haenky in his own name. There was a great deal of evidence offered at the trial with reference to the conduct, the earnings, and the expenditures of the Weishaar children and Frank Haenky, but there is no claim of any other contract on which rights to this property can be founded than the antenuptial agreement testified to by Tholen. He states that the contract mentioned the farm and provided that if Mrs. Weishaar should die her children should inherit her property, and also all the accumulations of that property ; that after her death the property should be divided in equal parts between Mrs. Weishaar’s children and whatever children the contracting parties might have. The references in the contract to Haenky’s children by his former wife and to his property in Illinois have no bearing on the case before us. The rights of the Weishaars to this subsequently acquired land hangs solely on the meaning of the word “ accumulations ” as used in the contract. It is contended in their behalf that all this property was accumulated from the original eighty acre tract, supplemented by the labor of the Weishaar boys before they left home. It is said that John Haenky did no labor as a farm hand, and that he had no other means with which to acquire property.
We may'remark, in passing, that it seems quite remarkable that eighty acres of land, with not more than thirty of it in cultivation should have produced so large a surplus after the maintenance of a family of eight persons as to provide for the purchase of all this after-acquired property, but we do not base our decision on any view we may entertain concerning the probabilities in that particular.
The word “ accumulations/' in the connection in which it is shown by Tholen’s testimony to have been used, is a very inapt and unusual one to express the meaning attributed to it. It will be noticed that he does not say the subsequent accumulations of the parties were to be divided equally among her sons and the children that might be born to them, but it is the accumulations of the land that are to be so divided. Can land be said to accumulate other land? Possibly it may by accretion, when bounded by navigable water, but certainly land does not accumulate other land by purchase. Even if it should be held that the term is broad enough to cover other land purchased with the products of this, there is no attempt to trace by evidence any crop or specific product of this land, into the fund used in payment for the subsequent acquisitions. Nowhere is it shown definitely that a dollar of the money paid for either of the subsequently acquired properties was obtained by the sale of any product of the Weishaar homestead. The nearest approach to any such proof is a statement to the effect that there was no source of revenue for the Haenkys other than the eighty acres and the labor of the Weishaar boys. But the proceeds of their labor during minority belonged to the parents, who were charged with the expense of their maintenance. No agreement is shown or claimed to the effect that their earnings before majority were to be preserved for them. It was merely the usual and ordinary case of children, living with their mother and a stepfather, performing labor and receiving their support. Nor is there any showing that their labor produced any sum of money in excess of the cost of their maintenance, except by inference from the fact that John Haenky did purchase more property and pay for it. As the case stands, we do not know, nor did the jury or trial court know, whence the money used in payment for the lands bought by Haenky was derived.
The case was first submitted to the jury for answers to certain special questions. The first one inquires whether there was a written agreement entered into by Haenky and Mrs. Weishaar before their marriage, in substance that their property should be divided between the five Weishaar boys and any children born to them, share and share alike. To this the jury answered yes. There is no proof in the case to support this finding. The contract testified to by Tholen is ■essentially different from that stated in the question. ■Other questions and answers are equally unfair and unsupported by the testimony. After the return of the verdict and argument of the case before the court, the findings of the jury were accepted and adopted by ■the court as its findings. The verdict of the jury and ■the finding and judgment of the court rest, and must irest, solely on the contract as testified to by Tholen. This contract was sufficient to control the descent and division of the original eighty acres of land and the accumulations thereof. The word “accumulations,” as we construe it, includes nothing more than 'that added to the land itself by way of improvement or betterment. Whatever was placed on the land was an accumulation. Whatever grew out of it and remained a part of the realty, as fruit, or other trees, vines and shrubs, was also an accumulation ; but the term cannot be extended to other lands, even if shown to have been purchased with the proceeds of this tract.
This interpretation of the antenuptial contract defeats the claim of the defendants in error to the land, under the facts as disclosed in the record, and renders any consideration of the other questions discussed in the briefs unnecessary. The land in controversy belonged to John Haenky, and after the death of his wife he had power to deed it away, with or without 'consideration, as he might see fit. The Weishaars were not his heirs. In conveying it to his son Frank he merely deprived his children by his first wife of any. share in the property. They are not here questioning; the validity of the conveyances. We have not undertaken to consider any question as to liability of Frank Haenky for rents and profits of the original eighty-acres, in which, if we read the record correctly, he never had any interest. Doubtless the Weishaar boys might have asserted their rights in the homestead at any time after all of them became of age, and probably had a cause of action against John Haenky for rents and profit received within the period covered by the Statute of Limitations, but no question is discussed before us with reference to a liability on the part of Frank Haenky for rents and profits.
The judgment must be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed. | [
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Johnston, J.
Jacob Greenburg was convicted in the District Court of Bourbon County of feloniously receiving stolen goods, knowing them to have been stolen. The punishment imposed was imprisonment in the State Penitentiary for a period of two and one-half years. Upon this appeal he complains :
I. Of rulings made in the admission of testimony. The county attorney was a witness for ’ the State and gave considerable testimony in narrative form, some of which may have been open to objection, but no objection thereto was made nor was any exception saved. Meyer Berkson, who testified in behalf of the defendant, was cross-examined as to his past life and conduct, with a view of impairing his credit, and, after he had stated that he had been under arrest, he was asked what he had been arrested for, when an objection was made that the record was the best evidence, and further that it was only a civil arrest. No other or more specific objection was made. The defendant went upon the witness-stand and testified in his own behalf. He stated in answer to an inquiry, without objection, that he had previously been under arrest in Port Scott. When asked the cause for his arrest an objection was made that it was á civil arrest and that his testimony was not the best evidence of it. These were the only objections made, and in both instances they were overruled. Each of the witnesses testified that he had been arrested several times upon charges of fraud.
Granting that the objections were sufficient to raise the question, the testimony was permissible under the which has long been recognized in this State. For the purpose of judging i . n , -, the character and credit of a witness, he may be cross-examined as to specific facts tending to disgrace or degrade him, although collateral to the main issue and touching on matters of record. Such questions are allowed when there is reason to believe that allowing them will tend to the ends of justice and they are asked for the purpose of honestly discrediting the witness. It is the duty of the court to see that the rule is not abused or the cross-examination unreasonably extended. When the defendant became a witness in his own behalf he took the hazard of such questions, and could be subjected to the same tests and be discredited in the same way as any other witness. The State v. Pfefferle, 36 Kan. 90, 12 Pac. 406; The State v. Probasco, 46 id. 310, 26 Pac. 749; The State v. Wells, 54 id. 161, 37 Pac. 1005; The State v. Park, 57 id. 431, 46 Pac. 713; Hanoff v. The State, 37 Ohio St. 178; Brandon v. The People, 42 N. Y. 265. See, also, the authorities referred to in the cited cases.
Our attention is called to an objection made to a question propounded to the witness Crain, but no ground of objection was stated, and the ruling thereon cannot be relied on as ground for reversal.
II. It is further contended that the conviction is not sustained by sufficient evidence. The defendant and Berkson were merchants, and carried a stock of clothing and gentlemen’s furnishing goods. They claimed to have purchased from -J. M. Freeman a quantity of ready-made clothing for men and boys and quite a number of boots and shoes. That the clothing and boots and shoes were stolen is not denied, and that Freeman was a party to the theft appears to be conceded. Greenburg and Berkson were not conducting a second-hand store, and yet they purchased these goods from Freeman, whose occupation was the running of what is designated as a “ joint,” in which intoxicating liquors were unlawfully sold, and also a pawn shop. A portion of the goods was delivered to them at their back door, in a gunny-sack, and a portion was carried there in barrels. Freeman was the principal witness against the defendant, and his testimony tends to show that the defendant knew that the goods were not honestly obtained. It is urged that, as Freeman was an accomplice, a conviction should not be allowed to rest upon his testimony alone ; and it is urged that there is no testimony which corroborates that of Freeman. The rule in such a case was fairly stated by the tr¿al court in charging the jury: “The degree of credit which ought to be given to the testimony of an accomplice is a matter exclusively within the province of the jury; but great caution should be used in weighing such testimony, and the jury should not convict upon the testimony of an accomplice alone, unless his testimony is corroborated by other evidence in some material point in issue ; but such corroboration need not be as to everything to which the accomplice testified.” See The State v. Adams, 20 Kan. 311.
It cannot be said that the testimony of Freeman •was without corroboration. The witnesses Slater and Stroud gave material testimony in corroboration of that given by Freeman, and some of the circumstances tended strongly to 'sustain Freeman’s testimony. The man from whom and the manner in which the goods were obtained were certainly considered by the jury in determining the issue. As counsel for the State has said, it is not easy to understand why he would receive a stock of clothing at his back door, in a gunny-sack, and shoes nailed up in barrels. We have no doubt that the testimony is sufficient to uphold the verdict of the jury.
III. Complaint is made of the conduct of the county attorney in addressing the jury, but while some of his remarks were not within the limits of propriety and good taste, we do not think that they are of such a character as would justify the overturning of the verdict. There was some provocation for the objectionable language used by the county attorney, and when objection was made to the language the court cautioned the county attorney and promptly advised the jury to disregard the objectionable statements. Although complaint is now made of other language, no other objection was made by the defendant, nor did he call .the attention of the court in any way to the so-called misconduct. Under all the circumstances, we think there was no such misconduct as requires the court to grant a new trial. The State v. McCool, 34 Kan. 613.
IV. There is nothing substantial in the objections made to the jury, nor to the rulings upon the instructions ; and, as we find no errors in the record, the judgment of the District Court will be affirmed. | [
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Joi-inston, J.
The important issue in the case is the duress alleged to have been exercised by the defendants, causing the plaintiff to transfer the bank stock in question. That the plaintiff executed the contract and deed and assigned and delivered the bank stock, on January 10,1894, is conceded. Negotiations for a settlement with the Heatons and for the reorganization of the Bank had been progressing for some time. On the night of the above-mentioned date, Burton, president of the Bank, Shoemaker, secretary and assistant cashier, and John C. Brown, a stockholder, met in the office of Brown, and, having secured the attendance of the attorney for the Bank, sent for Morgan Heaton and endeavored to induce him to settle with the Bank by transferring to it certain property and bank stock held by him, his wife, and others, for which certain notes and obligations of the Heatons were to be canceled and a small sum of money was to be paid to Heaton. Burton, Shoemaker and Brown appear to have been the principal actors in behalf of the Bank, and they spent most of the previous day in preparing the papers which they desired the Heatons to execute. In response to a note, Morgan Heaton was brought to Brown’s office between nine and ten o’clock at night, and the contract which had been prepared was presented to him. After reading it over, he objected to some of its terms ; a controversy ensued, in which the representatives of the Bank insisted that the Heatons should sign the papers and close up the transaction; and Heaton, on the other hand, insisted on more favorable terms than were provided for in the contract. After wrangling for' some time, and without effecting a settlement, Heaton left the office and started for home. Shortly afterward, Burton followed, and when he caught up with Heaton he told him that if he did not go back to the office and sign the contract and papers at once, and then go and get his wife to sign them, he would be arrested. Heaton then returned to the office, signed the contract, and the deed to the homestead, and then he and Brown, who was a notary public, started to Heaton’s home to induce his wife, the plaintiff, to sign the papers.
Brown, who was called as a witness, was asked what occurred on the way to Heaton’s home ; but an objection was made that, having taken the acknowledgment of her signature to the deed and contract, he could not testify to what occurred on that occasion, as it would tend to impeach his official action and his notarial certificate. This objection was sustained by the court.
The plaintiff then offered to prove by the witness : “ That on the night of the ninth of January, 1894, at at about two or three o’clock in the morning of that night — the morning of the tenth — this witness and the defendant M. Heaton started, under the direction and at the request of the officers of the Norton County-State Bank, to go to the residence of the plaintiff in this case, Mattie J. Heaton, for the purpose of procuring the signature of the plaintiff, Mattie J. Heaton, to the deed and contract referred to in the answer of defendant herein, and to obtain from her an indorsement and delivery of her certificates of stock set up in the petition herein; that they met Mrs. Heaton on the street of the city of Norton, between two and three o’clock in the morning; that Mrs. Heaton then said: ‘Is that you, Morgan?’ — meaning her husband, and he ( Heaton ) answered : ‘ Yes ’ ; that she then went up to the witness and Mr. Heaton and asked : ‘ What is the reason that you are out at this time of night? What business have you people on hand that you cannot transact in the daytime?’ That Mr. Heaton then said to her: ‘They have held me up for all we have except the children, and you might as well go back to the house and sign your death warrant. Mr. Burton told me that, if we do not immediately execute deeds conveying our homestead and our other real estate, and transfer all of our bank stock to him, so that he can get away on the- early morning train in the morning, he will have me arrested and imprisoned for the crime of embezzlement.’ That Mrs. Heaton then asked the question : ‘Has any criminal prosecution been commenced?’ That the witness said to Mrs. Heaton, in answer thereto: ‘We are trying to fix this matter up and avoid a criminal prosecution.’ That she then asked the witness whether or not they could convict her husband, M. Heaton,- and the witness replied : ‘ I do not know. We are trying to fix it up and avoid a prosecution.’ That they then went to the house, and Mrs. Heaton again asked the witness: ‘ Can Morgan,’ meaning her husband, ‘be convicted?’ That the witness said: ‘Mrs. Heaton, that I do not know.’ That then Mrs. Heaton asked the - witness what papers there were to be signed, and the witness told her a contract and a deed, and they wanted the bank stock assigned, also the certificates of school land, ‘ which I did not have. I did not have the bank stock nor the school land certificates.’ She said that she would not give up her bank stock. ‘Well’ I (witness) says, ‘ Mrs. Heaton, I am not up here to hold a club over you, or to get or to induce you to sign these papers against your will, and if you are not going to sign them I had just as well go.’ While they were standing in the street, and again while they were at the house, before Mrs. Heaton signed any of the papers or delivered them to the witness, Mr. Heaton stated to Mrs. Heaton that Mr. Burton, the president of the bank, had said to him (Heaton) that unless the papers were signed so that he could have them to go on the morning train down to Dan Heaton’s, he would have him (Morgan Heaton) arrested in the morning as soon as he could get the papers out.” Upon objection, this testimony was also excluded.
Brown stated that more than an hour elapsed after meeting Mrs. Heaton in the street before she consented to sign the papers and transfer her stock. The plaintiff offered to prove by the same witness that when she signed the contract and transferred her stock she was very much agitated and excited, and further, that she refused to transfer her bank stock until after she had been told that Burton said that if she did not sign the papers and deliver the bank stock so that he could get away on the early morning train, he would have Heaton arrested and imprisoned for embezzlement. These offers were both rejected, upon the ground that the testimony offered would tend to impeach the integrity of the official action of the notary.
In support of the rulings, it is assumed that the proposed testimony would have impeached the certificate of the notary, and it is contended that he was not a competent witness to contradict or falsify the statements in his certificate. As sustaining this contention, reference is made to the following cases: Central Bank v. Copeland, 18 Md. 305; Stone v. Montgomery, 35 Miss. 83; Shapleigh v. Hull, 41 Pac. 1108; Harkins v. Forsyth, 11 Leigh, 294. The plaintiff contends that the ruling is against sound reason and not required by public policy, and is opposed by the great weight of authority, and cites the following cases: Lee v. Ryder, 1 Kan. App. 293, 41 Pac. 221; Mays v. Pryce, 95 Mo. 603; Pickens v. Knisely, 29 W. Va. 1; Tatman v. Goforth, 9 Iowa 247; Pereau v. Frederock, 17 Neb. 117; Camp v. Carpenter, 52 Mich. 375; Garth v. Fort, 15 Lea 683; Truman v. Lore, 14 Ohio St. 144; Stevenson v. Brasher, 90 Ky. 23: Moore v. Hopkins, 83 Cal. 270.
On behalf of the plaintiff, it is said that some of the cases cited by defendants proceed upon the theory that the act of the notary is judicial, and that his act and certificate carry with them the verity of a judicial proceeding. Attention is called to the fact that our statute differs from that of other states, in not requiring that a married woman shall be examined separate and apart from her husband and in not requiring that the certificate shall state that it was her voluntary act and deed. The only facts required to be stated are that the person making the acknowledgment was personally known to the officer to be the same person who executed the instrument, and that such person duly acknowledged the execution of the same. Gen. Stat. 1897, ch. 117, § 12. Attention is also called to the fact that, in Kansas, the acknowledging officer does not act in a judicial capacity, and that his certifi cate does not have the conclusive effect that it does in states where his acts are regarded as judicial verities. In Kansas, the certificate of acknowledgment is only prima facie evidence of the execution of the deed, and all mistakes made by the officer in taking the acknowledgment may be explained and corrected by proper proof as readily as mistakes of any other ministerial officer. Wilkins v. Moore, 20 Kan. 538; Heil v. Redden, 45 id. 562, 26 Pac. 2. While the acknowledgment is necessary to entitle the conveyance to be entered of record, and thus impart constructive notice, it is not essential to the validity of the instrument. The execution may be proved by proper testimony, and when proved, “it is then immaterial whether the deed was acknowledged or not, and such unacknowledged deed passes title equally with one duly acknowledged.” Mo. Pac. Rly. Co. v. Houseman, 41 Kan. 300, 21 Pac. 284.
Wherever these considerations may lead, and wherever the reason and weight of authority may be, the point contended for by the defendants is hardly presented by the facts in the record, and its determination is not required. The proof offered did not, in our view, contradict or impeach the certificate. That the plaintiff signed the papers and acknowledged the signing of the same, was never a matter of dispute between the parties. The facts about which inquiry was made related to the undue influence and duress exercised by the defendants ; and the declarations and acts leading up to, and prior to, the execution of the conveyance, were admissible, in our view of the case. The answers to the questions would not necessarily have falsified any fact which the notary was required under our statute to state in his certificate; and therefore we are clear that he was a competent witness, and that his testimony, which was very important on the issue presented, should have been received. Bird v. Logan, 35 Kan. 228, 10 Pac. 564.
When the plaintiff became a witness in her own behalf, an inquiry was made as to the representations made by Brown with reference to the commencement of criminal prosecution against her husband. She had previously stated that, becoming alarmed at the long absénce of her husband, she had started out to find hifn, about one o’clock at night, and found Mr. Brown and her husband on their way to the Heaton home. The inquiry referred to the representations made by Brown to her on the street as to the threatened prosecution and arrest of her husband. The defendants objected to her testimony upon the ground that “ the person against whom redress is sought may be a party to the act of duress” ; and this objection was sustained. The same objection was made when she was asked to give the conversation that occurred between her and Mr. Brown, on that night, preceding the signing of the papers, and it was also sustained. The plaintiff then made an offer to prove by the witness that, at the time and place mentioned, Mr. Brown stated to her that he had some papers, which he wished her to sign, conveying property to the bank, including a conveyance of her homestead, a contract, and also a transfer of her certificates of stock ; that she then inquired of Brown whether criminal prosecution had been commenced against her husband, and Brown answered: “No, we are trying to fix this matter up to avoid criminal prosecution, and that is' why I want you to sign these’ papers.” She then inquired what the charge against her husband was, and Brown answered: “A charge of embezzlement, misappropriating the funds of the Bank, and speculating on the- board of trade.” She inquired if they could prove the charges against her husband, and Brown said : “ I do not know ; but if they can prove what they say they can, they can convict him ; and they say they can prove it.” This offer was excluded by the court. The offer was renewed in different forms, but all was excluded, except the mere fact that Brown requested her to sign the papers. Among other things, she offered to prove that, when she asked Brown if her husband should be arrested on the charge made what the consequences would be, he told her that it would be imprisonment in the penitentiary ; further, that Brown told her that Burton, the president of the Bank, had stated to Heaton that this would be the last chance of settling the matter without a criminal prosecution. She was not even permitted to state that when she signed the papers and transferred her bank stock she believed that if she did not do so her husband would be arrested and imprisoned in the morning. When she offered to prove that she was the owner of the bank stock, that it was of the value alleged in her petition, that she received no consideration for the transfer of the same, and that there was no liability against, her on the $3,800 note, she was met with the objection that such evidence could not be received until duress had been established ; *and this objection the court sustained. Most of the testimony which she attempted to offer to establish duress had been excluded by the court,, as we have seen ; and, later, when she offered to prove that at the time of the signing of the papers and the transfer of the stock she was under great mental excitement because of the threats of prosecution, arrest and imprisonment of her husband, which, threats were made by the president' of the Bank and were communicated to her by Brown, and that but for-these threats and the fear and duress thereby caused she never would have transferred the stock, the offer was rejected.
We think most of the testimony mentioned was admissible, and that error was committed in excluding it. The contract and transfer by the plaintiff are without validity, if they were obtained against her will i and there was no voli- ° tion of free agency, if the signing of the papers and transfer of the property were induced solely by the threats made to her by the defendants that in caso she failed to execute and transfer they would cause the arrest and imprisonment of her husband. Bank v. Croco, 46 Kan. 620, 26 Pac. 939; Thompson v. Niggley, 53 id. 664, 35 Pac. 290; Adams v. Bank, 116 N.Y. 606; Springfield Ins. Co. v. Hull, 37 N. E. Rep. 1116; Miller v. Lamber Co., 98 Mich. 163; Morse v. Woodworth, 155 Mass. 233.
The evidence offered tended to show that the will of the plaintiff was overcome, that she was deprived of free agency because of the threats made by the defendants, and that they were purposely made and communicated to obtain the execution of the papers and the transfer of the property by the plaintiff. The testimony received and offered tended to show that Brown acted as the agent of the Bank in procuring her signature and the surrender-of her property. He was a stockholder in the Bank, was an active participant in the settlement, assisted in the preparation of the papers that were finally signed, and stated that he went to the house in the night-time to procure her signature in behalf of the Bank and at the request of Burton, the president. According to the testimony, he did more than merely to request her signature, for it appears that he spent more than an hour in endeavoring to induce her to sign the papers and transfer her stock. If the offered testimony is true, he com municated to her the threats previously made by the defendants, and informed her that her failure to accede to their demand would result in the prosecution and imprisonment of her husband.
In behalf of the defendants it is said that there .is no duress unless the imprisonment is unlawful, and that, as Heaton was guilty of an offense, and liable to arrest and imprisonment, there could be no duress in this instance.
The guilt of Heaton was not admitted, and not a syllable of testimony was offered tending to show he was actually guilty. His guilt cannot be assumed because it is charged by the defendants, nor because the plaintiff yielded to her fears when the defendants threatened the institution of criminal proceedings against her husband. If an information had been filed, charging him with an offense, he would have been entitled to the presumption of innocence, at least until a conviction was obtained ; and surely his guilt cannot be presumed, without proof, in a civil action.
It has never been directly decided in this court whether a threat of prosecution for an offense of which the party charged was actually guilty constituted duress, although it was held in Thompson v. Niggley, 53 Kan. 664, that a note and mortgage extorted by threats of prosecution for an offense of which the party threatened was guilty in fact, but which was in no way connected with the demand for which compensation was sought, may be avoided by the party executing them. When the will of a party is overcome by threats and there is no free will or agency in making the contract, it is not easy to find room for a distinction between a case where the imprisonment threatened is lawful and one where it is unlawful. Imprisonment may be lawful so far as the public or those representing the public are concerned, but is it ever lawful for a party to force the signing of a contract, the surrender of property, or the obtaining of some other private advantage, against the will of another, by using or threatening to use the machinery of the law intended for the protection of the public and the punishment of criminals?
In addition to the authorities mentioned in Thompson v. Niggley, supra, there are many cases holding that, where there are threats, compulsion, and undue influence, there is no volition ; and it is of no consequence whether the threat is of lawful or unlawful imprisonment, and in a late case decided by the Supreme Court of Massachusetts it was held that, while there was a division of opinion on the question, the. view mentioned “rests on sound principle and is in conformity with most of the recent decisions in such cases both in England and America.” Morse v. Woodworth, 155 Mass. 233. See cases there cited.
Whatever may be the rule, the nature of the imprisonment threatened is not shown. The guilt of Heaton was not conceded nor established by proof, and we cannot presume that he is a felon. Therefore the point that the imprisoment threatened was lawful does not arise, and if the contention of the defendants is correct, it was no reason for excluding the testimony offered in behalf of the plaintiff.
For the errors mentioned the judgment of the District Court will be reversed and the cause remanded for another trial. | [
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Johnston, J.
This was an action by William Matney against James Logan Linn and Sally Ann Matney, the children and heirs of Harriet E. Matney, who is now deceased, and who had been the wife, of the plaintiff, William Matney, for the partition of a quarter-section of land, in Shawnee County, in which William Matney claimed to own an undivided share of nine-twentieths. It appears that William Matney and Harriet Linn were married in 1865 ; and that at the time of their mai’riage, the land in controversy was occupied by Harriet E. Matney and her children, and had been obtained through her former husband, James Linn. She and her second husband, as man and wife, occupied the premises as a homestead, until 1879. In that year a decree of divorce was granted Harriet E. Matney, by the District Court of Shawnee County, which severed the marriage i*elation between the parties and divided the property between them. She was awai’ded her separate property, including the real estate in controversy, and William Matney, by the decree, was barred from asserting any right or interest in the land awarded her.
After the decree of divorce they lived apart until April, 1881. At that time, in contemplation of another mai’riage, they entered into an agreement to the effect that their property interests should be so adjusted as to exclude each from any interest in the property of the other, after the consummation of the marriage. It was recited that William Matney, in contemplation of this marriage, had disposed of his property so as to place it beyond the power of Har riet E. Matney to acquire any interest therein after the consummation of their marriage, should she outlive him. It was further recited that Harriet E. Matney contemplated and intended to bequeath all of her property to her son, James Logan Linn; and, in case she failed to make such will before her death, it was agreed between the parties that the contract should stand for and operate as a will of the said Harriet, and that all of her property of which she might die seized should pass as an inheritance to James Logan Linn and his heirs. It was stipulated that immediately after the marriage Harriet E. Matney might make a will or conveyance, as she might elect, bequeathing or conveying all of her property to James Logan Linn or -such other persons as she might choose, and that William Matney would freely and voluntarily consent to any will or conveyance that she might make, and that such consent should effectually exclude him from any right or interest in such property by virtue of the marriagé, or otherwise ; and that if he at any time should refuse to relinquish or consent to such will or conveyance the refusal should make valid this agreement as and for a will, and such refusal should be held to be a fraud on the rights of Harriet, and the marriage contract should be held to have been fraudulently made and obtained by William Matney, because of the fact that the full and fair execution of the agreement by Matney, was the sole consideration moving to Harriet from him for making the marriage contract and entering into the marriage relation. Instead of a formal marriage ceremony and contract, the parties both appeared in court and asked the court to vacate the decree of divorce, and an order was made attempting to modify and vacate so much of the decree as severed the marriage relation; but it specifically provided that it should not modify the decree in any other respect, or interfere with, or change or modify, any rights or interests acquired under, or resulting from, the decree of divorce. After the order modifying the decree was made the parties lived together as man and wife, and occupied the premises in controvery as their homestead. Shortly afterwards, and in August, 1893, Harriet E. Matney executed a will bequeathing her property to her son James Logan Linn, and also executed a deed conveying to him the south half of the premises in question. In June, 1893, she made a warranty deed purporting to convey the north half of the quarter-section in controversy to Sarah Ann Matney, her daughter. Her husband did not join in the deed, but it is alleged that he gave his joint consent to the alienation, and he did sign the deed as a witness.
The court below, upon the testimony, found that the deed from Harriet E. Matney to Sarah Ann Matney was executed and delivered with the joint consent of "William Matney and Harriet E. Matney, but that the consent was not in writing; and, further, 'that the deed from Harriet E. Matney to James Logan Linn was delivered to Linn without the joint consent,of William Matney, her husband, who expressly refused to consent to the alienation attempted. It was further found that William Matney did not consent to the execution of the last will and testament of Harriet E. Matney, but had refused to take under the provisions of the same and elected to take under the Statute of Descents and Distributions. The court therefore confirmed the .deed to Sarah Ann Matney, and held that she was the owner in fee simple of an undivided seven-eighths of the north half of the land in controversy ; that the land attempted to be conveyed by the deed to James Logan Linn was a part of the homestead of the grantor, and, there being no joint consent, the deed was ineffectual; that the will of Harriet E. Matney, deceased, having been made without the consent of William Matney, did not pass title to the property, but did convey an undivided half interest in the property attempted to be conveyed ; and that William Matney was the owner in fee simple of an undivided seven-sixteenths of the south half of the quarter-section in controversy, and that James Logan Linn had inherited from his father, and is the owner in fee simple of, an undivided one-eighth of the land in controversy. William Matney complains of the judgment, and so does James Logan Linn ; and each has filed a petition in error. William Matney having died since the commencement of the proceeding in error, it has been revived in the name of the administrator of his estate.
In behalf of the plaintiff it is argued that the ante-nuptial contract between AVilliam and Harriet Matney was invalid; that the land in controversy was their homestead, and no part of it could be cpnveyed without the joint consent of both ; that such consent was not given, and that, therefore, the deeds to Sally Ann Matney and James Logan Linn were invalid, and that the court erred in awarding the north half of the •land to Sally Ann Matney. At the time of the conveyances mentioned, the legal title of the land was in Harriet Matney, except that James Logan Linn owned a one-eighth interest which, he inherited from his father. It was occupied as a homestead by William and Harriet Matney before, and after, the divorce of 1879.
That decree effectually severed the marriage relation and excluded each from any interest in the property adjudged to the other. It may be said that nothing was accomplished by the attempt to modify the decree in 1881. It had stood as a finality for nearly two years, and the effort to modify it, by vacating the part divorcing the parties, and to leave the other features of the decree undisturbed, upon a mere motion, long after the term at which it was rendered, was ineffectual. That act did not reunite the parties, nor restore the homestead rights that William Matney formerly held in his wife’s land. The fact that this step was ineffectual, and the further-one that there was no formal marriage at that time, does not argue that they did not again enter the marriage relation. It appears that there was at that time a mutual present assent of the parties to immediate marriage. They were capable of assuming that relation, and in pursuance of that consent and agreement, they lived together as husband and wife, in good faith, until they were separated by death. These things were sufficient to constitute a valid consensual marriage. The State v. Hughes, 35 Kan. 626, 12 Pac. 28; The State v. Walker, 36 id. 297, 13 Pac. 279; The State v. McFarland, 38 id. 664, 17 Pac. 654.
Assuming, then, that they were husband and wife from the time they began living together as such in 1881, it must be held that William Matney acquired a homestead interest in the quarter-section - . , , . 1 TTT1 . , n whicli they occupied. . While he had an J ^ interest in the land, it did not rise to the rank of an estate. It was only a right of occupancy with a restriction upon the wife’s power to alienate the property without his consent. As she still held the complete legal title, the whole estate was vested in her, and at her death it descended to her heirs, or those to whom it may have been devised. City of Leavenworth v. Stille, 13 Kan. 548; Jenness v. Cutler, 12 id. 516.
The homestead interest which he acquired was probably not affected by the antenuptial agreement of the parties. But first, with reference to its validity : It was made in contemplation of an immediate mar riage, and the reciprocal conditions, and the marriage itself, are a sufficient con° sideration for the agreement. Marriage settlements of this character are looked upon with favor by the courts, and it is generally held that they are to be liberally interpreted so as to carry out the purposes of the parties engaging in them. There can be no question of the validity of such settlement where it is entered into in good faith by parties competent to contract, and which, considering the circumstances of the parties at the time of making the same, is reasonable and just in its provisions. A settlement so made will be enforced by the courts, and the disposition of the property so made will take the place of that prescribed by the statute as to the distribution of property upon the death of either. Hafer v. Hafer, 33 Kan. 449, 6 Pac. 537.
The provisions of the contract in question appear to be reasonable and just. The property of the par-1 Les k&d been equitably divided when the divorce was granted, and to prevent contention or injustice, it was mutually agreed that the provision should be absolute, and that the reunion should not in any way effect that settlement. In contemplation of the marriage, William Matney had already disposed of all his property so that neither Harriet nor her children could share in it in case she survived him. And the purpose of the marriage settlement was that he, or his children, should not share in her individual property if he should survive her. We find nothing inequitable in its provisions, and we see no reason why it should not be enforced. By this contract he consented and agreed that Harriet might convey her property to her children, or other person, as she might choose, and that the agreement should operate as a consent on his part. It has been held, however, that such a contract is inoperative as to the homestead interest. The deed, however, to Sally Ann Matney, which was executed in June, J 3 y 1893, appears to have been made with express consent. It is true, he did not join in its execution, although he did sign it as a witness. There is abundant testimony, however, to show that he consented to the alienation of the land, and that it was a present assent at the execution of the instrument. It is held that while there must be a joint consent of the husband and wife to an alienation of the homestead, it need not necessarily be expressed in writing to fulfil the constitutional requirement. Pilcher v. Railroad Company, 38 Kan. 516, 16 Pac. 945; Dudley v. Shaw, 44 Kan. 683, 24 Pac. 1114.
We think the court correctly held that the deed to Sally Ann Matney was a valid and effectual conveyance, and that William Matney, by-consenting thereto, transferred and surrendered the homestead interest which he held in the land conveyed. We cannot sustain the ruling of the court, however, as to the disposition of the south eighty, which Harriet Matney undertook to cpnvey and bequeath to her son, James Logan Linn. It is true, that the court found that William Matney did not consent to the conveyance, nor the devise made of that land to James Logan Linn. He had, however, consented to the conveyance of the north half of the lpmd whereon were the family dwelling, barns, and other buildings, as well as the orchard. By his consent and surrender of the homestead interest in the north eighty, upon which was the family dwelling, and other improvements, he also surrendered the homestead interest in the south half. The land must be occupied as a homestead to impart to it the homestead character. As was remarked by Chief Justice Poster :
“The dwelling house upon the homestead is an inseparable. part of it. There can be no homestead without a place of family dwelling, either actual, or in such contemplation as amounts to the same thing. The dwelling house is the nucleus of all the homestead interests and affections, and hence whatever homestead selection is made must include the family roof-tree.” Peak v. Bank, 58 Kan. 489, 49 Pac. 614.
Having surrendered the homestead interest, the provisions of the marriage settlement are controlling, and under the terms of the will and the conveyance made by Harriet Matney, the entire south eighty of the land in controversy becomes the property of James Logan Linn. Neither William Matney, nor his heirs, are entitled to any share in the property in controversy. So much of the judgment as affected the nor.th eighty of the land in controversy, will be affirmed, while that part of the judgment relating to the south eighty, will be reversed, with directions to enter judgment awarding the entire eiglity-acre tract to James Logan Linn. | [
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Dostee, C. J.
This was an action upon a promissory note, brought by the plaintiff in error against the defendant in error, a corporation.
The note was not executed by the defendant in error, but upon its face purported to be the obligation of one George P. Fuller. Summarized, the claim of liability made by the plaintiff, in his petition, against the defendant, is as follows : George P. Fuller and others were partners, and by agreement among themselves bought from the plaintiff in error a tract of land in Missouri. The purchase was made in the name of the said Fuller, but for the benefit of the partnership. It was made in contemplation of the organization of a corporation, to be composed of the partnership members, to which, when organized, the land was to be conveyed, and used for coal mining purposes. Within a short time thereafter, the members of the partnership organized themselves, as theretofore agreed, into the defendant corporation; upon doing which, the lands were conveyed to it by the said Fuller in pursuance of the agreement. The note sued upon had been given by Fuller to the plaintiff as part of the purchase price of the land, and with- the agreement among the partners as promoters of the corporate enterprise that it should be the obligation of the corporation when organized.
To this petition the defendant answered, first, by a general denial, and second, that the plaintiff had effected a sale of the lands in question to the said Fuller and procured the execution of the note by him by means of a fraudulent conspiracy between the plaintiff and other persons as his agents, by which they induced Fuller to believe the lands to be more valuable than they really were, and to purchase them at a price largely in excess of their real value, by representing and pretending to him that, in the event of his purchase of the lands, they, the agents, would take them off his hands at an advanced price and would pay for the same. To this second defense the plaintiff replied by a general denial.
At the beginning of the trial, the court ruled that under the pleadings the affirmative of the issues and the burden of proof rested upon the plaintiff, to which ruling exception was made. The plaintiff then moved the court to compel the 'defendant to elect upon which ground of defense — the general denial or the allegation of new matter — he would stand. This motion was denied, to which exception was taken. The case was tried to the court without a jury, and a general finding made and judgment rendered in favor of the defendant, from which judgment the plaintiff prosecutes error to this court.
The principal contention of the plaintiff in error is that the answer of the defendant should have been treated as a plea of confession and avoidance, in which case the allegations of. new matter contained in the answer would override or neutralize the general denial, and impose the burden of proof upon the defendant; or, if the answer should not be treated as a plea of confession and avoidance, the general denial and allegations of new matter as grounds of defense were inconsistent, and therefore the defendant should have been compelled to elect upon which it would stand; or, if neither of these contentions were sound, the allegations of new matter in the answer were immaterial, because, first, not amounting to a charge of legal fraud, and second, the fraud, if any was practiced, was upon Fuller and not upon the defendant. All of these contentions are so connected with each other they may be considered together.
We are aware that in actual practice objections are often made and sustained to defenses in answers upon the ground that they are inconsistent with each other. The question of the validity of such objections has seldom been presented to this court, and no attempt has ever been made to declare a general rule upon the subject. Only the special facts of the cases presented have -been passed upon. However, considering the numerical weight of the authorities, it would seem that an objection to defenses in an answer upon the ground of their inconsistency with each other could never be sustained. Mr. Pomeroy, in his work on Code Demedies, section 722, says :
‘ ‘Assuming that the defenses are utterly inconsistent, the rule is established by an overwhelming weight of judicial authority, that, unless expressly prohibited by the statute, they may still be united in one answer. It follows that the defendant cannot be compelled to elect between such defenses, nor can evidence in favor of either be excluded at the trial on the ground of the inconsistency.”
Practically, the only dissent from the rule thus stated is by the courts of Minnesota and Missouri. However, it will not be necessary to undertake to ascertain what the true rule is. Without determining whether defenses absolutely and irreconcilably inconsistent may nevertheless be pleaded and relied upon, it will be sufficient' in this case to learn whether the defenses set up in the defendant’s answer are, as a matter of legal logic, inconsistent. In the case of the Citizen’s Bank v. Closson, 29 Ohio St. 78, it was ruled that a denial of the execution of a promissory note, and an allegation that, if it was executed, the signature was obtained by fraud, were not inconsistent. In the opinion the court said :
“Taken together, the two defenses amount to this : That the defendant is ignorant whether he signed'the note or not; he does not believe he signed it, and therefore denies it; and that, if he did sign it, his signature was obtained by fraud, and without consideration.”
In the case of Pavey v. Pavey, 30 Ohio St. 600, a denial of the execution of a promissory note and an averment of lack of consideration for it were held to be not inconsistent. In the opinion the court said :
“It is claimed that want of consideration can be pleaded only by way of confession and avoidance, and that therefore the second defense is necessarily inconsistent with the first. But the making of the note is not expressly admitted in the second defense. It can be regarded as admitted only by implication of law, as a mere technical supposition on which the defense proceeds, and not as an admission of fact. The true rule, then, would seem to be, that the defendant can be required to elect between defenses only where the facts stated therein are so inconsistent, that if the truth of one defense be admitted, it will disprove the other. In the case before us this inconsistency does not exist, .for it may be true that the defendant did not make the alleged note, and that there was no consideration therefor. Proof that would sustain one of the defenses would not necessarily disprove the other.” See Map Co. v. Jones, 27 Kan. 177-180.
So, in this case, it may be said that a denial of thé execution of the note in behalf of or as the obligation of the defendant may be well made, and it may also be true that the person by whom it was made was defrauded into its execution. Therefore, passing by the question whether inconsistencies between the several defenses of an answer may be tolerated, and assuming, for the purpose of meeting the objections of the plaintiff in error in this case, that they are not allowable under our practice, it wonld nevertheless seem that to justify the objection the inconsistency must be such as to constitute the proof of one defense a direct and positive denial of the other ; and that if the inconsistency between the two exists by inference or implication, and can be made out only by argument, both of them may stand.
The views thus expressed likewise dis] objection that the answer is to be treated confession and avoidance. A plea of confession and avoidance is one which admits that the plaintiff had a cause of action, but which 'avers that it has been discharged by some subsequent or collateral matter. Encyc. Pleading and Practice, vol. 4, 664, et seq. The answer in this case makes no admission of a right of action in the plaintiff at any time, but on the contrary denies a right of action in him at any time.' It denies that the note in suit was executed in behalf of the defendant. It is only upon the assumption that the special plea of fraud in procuring the execution of the note, implies an admission of liability except for such fraud, that the argument of plaintiff in error as to this matter rests. If a plea in denial of the execution of an instrument, and another asserting fraud in its execution, are not inconsistent, the latter cannot be held to be in confession and avoidance. As analyzed by the Supreme Court of Ohio, in the cases before cited, it amounts only to this : “ The note was not executed in my behalf, and I therefore deny liability ; but, if the person executing it undertook to bind me by its terms, I assert that he was fraudulently induced to do •so.” The rule of evidence involved in the consideration of this particular question is directly to the contrary of the claim made by the plaintiff in error. Mr. Pomeroy in his work on Code Remedies, section 724, says :
“When a denial is pleaded in connection with a ■defense of new matter, or two defenses of new matter ■are set up, the admissions in the one can never be ■used to destroy the effect of the other. The concessions of a defense by way of confession and avoidance do not obviate the necessity of proving the averments «contradicted by the denial. This rule is universal.”
Were the allegations of fraud practiced upon George P. Puller material as a defense in this case, he being, as alleged,' a stranger to the defendant, and his acts in nowise obligatory upon it? The conclusion that the defenses set up in the answer are not inconsistent, but that they may be pleaded in the alternative, disposes of the objections made to the answer upon this score. It was allowable to the defendant to say: “The obligation sued upon is not mine, and was not executed on my behalf, and the one who executed it had no authority to bind me by its terms ; but, if such be not the case — if it be that the obligation was executed by my agent and on my behalf — he was fraudulently induced to enter into the contract.” Of course if the matter alleged against the plaintiff consisted in merely vaunting the value or extolling the qualities of his land, they would not amount to charges of legal fraud. But they are more than this. They are allegations that plaintiff procured others as his agents to fraudulently represent and pretend that they would take the land off the hands of Fuller, at a large, advance in price, if he would purchase. This, if true, was not mere “puffing”; it was lying, and was fraudulent.
An objection is made to the consideration of the answer as a defense, upon the ground of fraud, to a suit for purchase money, because it made no tender of reconveyance of the land purchased ; and a like objection is made to the consideration of the evidence received under ■ the answer, because unaccompanied by an offer of reconveyance. As a general rule, subject to some exceptions, an offer of reconveyance need not be made in the pleadings. The requirement is rather upon the court to impose equitable terms, than upon the rescinding party to propose them. Thayer v. Knote, 59 Kan. 181, 52 Pac. 433. If it appeared that the purchase by Fuller had in reality been made for the defendant, a reconveyance, perhaps, should have been adjudged; but it does not so appear.
The findings of the court were general. We cannot tell whether it rested its judgment upon the defense that the land-purchase was Fuller’s contract with which the defendant had no concern, or upon the implied admission in the answer that it was the defendant’s contract, into the making of which Fuller, as its agent, had been fraudulently entrapped. There was evidence in the case tending to support both of these claims of defense. ’ If the court rested its judgment upon the one last stated, a reconveyance should have been ordered; if upon the one first stated, it should not have been ordered, because the defendant, having received nothing, had nothing to reconvey. While we cannot know as a fact upon what ground its general finding was made, we must asssume it to have been made upon the one first above stated; that is, upon the denial of interest in the land-purchase made by Fuller. Had it been made upon the other ground, the court would doubtless have ordered a reconveyance, because it would have been equitable to do so.
Upon the trial of the case the plaintiff testified as a witness in his own behalf. His testimony tended to prove that the land purchase was made by George P. Fuller in the interest of the defendant corporation. A large part of his cross-examination consisted in the identification of letters written by him to others as-his agents, detailing plans to induce Fuller to purchase the land, and likewise consisted of explanations of -his purpose and meaning in writing the letters. This cross-examination was apart from anything about which he had testified in chief, and it tended quite strongly to sustain the charge of fraud made in the defendant’s answer. It was objected to as not proper cross-examination. This objection should have been sustained; but, under the peculiar circumstances of the case, we are unable to see wherein the plaintiff has been substantially prejudiced by not sustaining it. The witness was the opposing party — the plaintiff, and was therefore hostile in interest, and probably hostile in spirit and feeling towards the defendant. To have compelled the defendant to make this adverse hostile party his own witness, and thereby to limit and fetter himself by differing and narrower rules of examination, might have prevented the'full development of its theory of the case. It would be very difficult indeed for a litigating party, seeking to prove the fraud of his adversary, and being compelled to do so by that adversary himself, to satisfactorily make his proof, if he were compelled to use him as his own witness, and limit himself by the ordinary rules of examination in such cases. The only way in which it could be done, were he to call him as his own witness, would be to treat him as if upon cross-examination, and this in the discretion of the court may be done. The only departure in this case from the ordinary rule in such cases was in the matter of time at which the cross-examination was permitted. Nothing suggested to us in the brief or argument of counsel, or that we have perceived in the record, tends to show that this examination out of time worked any prejudice to the plaintiff, nor can we conceive wherein he was prejudiced by it. We by no means wish to be understood as sanctioning the practice of parties in departing from the ordinary rule. It is doubtless true that in many cases a departure from the rule would result in prejudice ; but none has been shown in this case.
The plaintiff in error claims that his evidence established the fact of the purchase of the land by Fuller for the defendant in error, and that the judgment of the court should therefore have been in his favor. The evidence as we view it is conflicting. Some of it tends to support the negative contention of the defendant in-error. In such case, under the thoroughly established and familiar rule, we cannot disturb the findings of the court below. Its judgment will therefore be affirmed. | [
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Allen, J.
It is earnestly insisted on behalf of the plaintiffs in error that no recovery can be sustained under the facts shown by the record in this case. No claim is made that there was not a sufficient showing of negligence on the part of the engineer and other employees in charge of the Frisco train. That they might have seen the Memphis train approaching the crossing as the Frisco train came out from behind the depot is clear and beyond dispute. The Memphis train, consisting of an engine and fourteen cars, was more than five hundred feet long, and the caboose must at the time of the collision have been one hundred feet south of the point where the engine stojaped and whistled. It would seem that if Dwyer, the Frisco engineer, looked, as he claims he did, he must certainly have seen the Memphis train moving toward the crossing. But counsel for the defendants do contend with much earnestness that the testimony shows that Brantner was guilty • of such contributory negligence as bars a recovery. It is insisted that he proceeded towards the crossing without availing himself of the opportunity he had to look between the round house and the Frisco depot before his view was cut off; that he did not look at the earliest opportunity after passing the round house, and that he did not keep his train under such control as to be able to stop and avoid the collision. It is also urged that in approaching a crossing where the view in one direction was obscured to such an extent as in this case, it was the duty of those in charge of the Memphis train to send a flagman forward to ascertain whether the crossing could be safely made before proceeding. These are all considerations which it was eminently proper for counsel to urge to the jury, but under all the facts disclosed by the testimony, it cannot be declared as matter of law that Brantner was guilty of contributory negligence. An engineer, while approaching a railroad crossing with his train, must take precautions commensurate with the dangers of the situation. Whether Brantner, after having stopped and given the crossing signal and having looked in the direction from which the .Frisco train came, had a right to proceed to the crossing without taking other precautions than he did, was a question to be determined from all the evidence.. There was some conflict in the statements of different witnesses with reference to the giving of signals, the relative time of starting trains, the speed at which they moved, and the position of the Memphis engine when the Frisco engine first came in sight at the east end of the depot. It is not our province to determine whether as a matter of fact, the view of the Frisco track was entirely cut off from Brantner, before the Frisco engine came in sight. Nor do we deem it incumbent on us to declare as matter of law that Brantner was bound to send a flagman forward past the round house and get an unobstructed view to the west along the Frisco track before proceeding to make the crossing. The Frisco train had to cross the Santa Fe road before reaching the Memphis, and at the crossing of the Santa Fe the engineer had a view of the Memphis track for a considerable distance and could have seen Brantner’s train approaching the crossing. Whether under these circumstances Brantner had a right to assume that he would look and would see the train is for the jury to determine. There was no error in overruling the demurrer to the plaintiff's testimony.
The defendant sought to prove statements made by Brantner after the collision with reference to his conduct immediately prior to it. This testimony was excluded. It is apparent that Brantner’s declarations would have much weight with the jury, and also that the ottered testimony bore directly on the vital issue' in the case. It may be that some of the statements which' the defendant claimed it could prove were in the nature of expressions of opinion, or deductions from other facts, yet being the statements of Brantner with reference to the occurrence they were admissible as declarations against interest, At the time the statements were made Brantner alone had a cause of action against the Railway Company for the injury. No cause of action had then accrued in favor of the plaintiff, for Brantner was living. The declarations offered fall within the rule allowing the admission of statements of third parties as declarations against interest. They were made by a person since deceased concerning a transaction of which he had knowledge, and were against the interest of the person making them. The cases of Louisville, etc., Rld. Cos. v. Berry, 28 N. E. 714, and Johnston v. Oregon, etc., Rld. Co., 23 Ore. 94; 31 Pac. 283, give some support to the ruling of the trial court, but the matter does not seem to have received full consideration in either case, and we are not satisfied with the conclusions reached. The citation of City of Bradford v. Downs, 15 Atl. 884, is a mistake. We have' not been able to find the case. In section 147, 1 Greenleaf on Evidence (15th ed.), the author says :
“ This class embraces not only entries in books, but all other declarations or statements of facts, whether verbal or in writing, and whether they were made at the time of the fact declared, or at a subsequent day. But to render them admissible, it must appear that the declarant is deceased, that he possessed competent knowledge of the facts, or that it was his duty to know them ; and that the declarations were at variance with his interest. When these circumstances concur, the evidence is received, leaving its weight and value to be determined by other considerations.”
See also Lax v. Forty-second etc. C. R. R. Co., 14 Jones & Spencer, 448; Stein v. R. R. Co., 10 Phila. 440. It is insisted that the spirit, if not the letter, of section 333 of the Code, General Statutes of 1897, prohibits O’Hara, the superintendent of the railway company, from testifying to a conversation had personally by him with Brantner ; that O’Hara represented the Railway Company, and stands in the relation of a party in this case adverse to the heir at law of a deceased person. Cases are cited where the representative of a corporation who had personally entered into a contract for the corporation with one who afterward died has been held incompetent to testify concerning the transaction in an action between the corporation he represented and the personal representative of the other party to the contract.
If we concede the soundness of the rule declared in these cases, concerning which, however, we express no opinion, they are distinguishable from this. It does not appear that O’Hara was authorized to represent the Railway Company in any transaction with Brantner. The conversation, so far as the record discloses, was not connected in any manner with any negotiations, or business transaction, conducted by O’Hara for the company. He, therefore, stands in the same relation to the conversation as any other witness to it. The error in rejecting this testimony is emphasized by the refusal of the court to submit to the jury the sixth and .seventh special questions, which call for answers as to whether Brantner and the fireman looked out for a train from the west after the signal for the crossing was given. These questions were quite as pertinent as any that were submitted, and bore directly on the turning point of the case, namely, the question as to the contributory negligence of Brantner. The sixteenth and seventeenth questions also appear to be proper ones. We are at a loss to know on what theory the court struck them out. Other errors are alleged, but it seems unnecessary to discuss them. For the error in excluding the testimony as to the statements of Brantner, and in refusing to submit the special questions mentioned, the judgment must be reversed, and the case remanded for a new trial. | [
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Allen, J.
The appellant was charged, under section 39, chapter 100, of the General Statutes of 1897, with an assault on James Dawson with intent to kill him. On this information he was tried, convicted, and sentenced to the Penitentiary for a term of eight years. From this conviction he has appealed to this court.
In view of the conclusion reached, it is unnecessary to enter into any minute consideration of the facts. A general statement only will be made. Patrick O ’Shea kept a saloon in the north part of Wichita. He had lived for seven or eight years with a woman named Anna Whaley, to whom he was never married. They lived together at his saloon until some time in the fall of 1897, when Miss Whaley went away with Dawson. On Sunday, the fourteenth of November, 1S97, Dawson and. Miss Whaley went to O’Shea’s 'place about eleven o’clock in the forenoon. They drank a great deal together. O’Shea denies having been drunk. About four or five o’clock in the afternoon, according to O’Shea’s testimony, Dawson was quarreling with Miss Whaley and had a pistol drawn on her. O’Shea interfered. A scuffle ensued, during which the pistol was discharged, inflicting a flesh wound in Dawson’s arm. Dawson denied any recollection of what took place at that time, and claimed that he was so drunk he did not know what he was doing. A policeman came in, disarmed Dawson, and quieted the disturbance. After that, Dawson took a street car and went do.wn into the city to his room.
Dawson testifies that when he went to O’Shea’s place in the morning he had $300 with him. At his room he missed his money. About nine o’clock in the evening he took a hack and drove back to O’Shea’s place. He went to the back door and knocked. O’Shea asked, “Who is there?” He answered, “Ed”; O’Shea then said, “All right, Ed, come around to the front.” Dawson did so, and went in, He leaned on the bar and said, “Paddy, I lost my leather down here this afternoon.” O’Shea said, “You are a damned lying son of a bitch,” raised his revolver, shot, and hit him in the side. Dawson 'turned to go out. O’Shea shot again, and hit him in the back, causing him to fall on the floor. O’Shea then came up and kicked him two or three times in the ribs. This is Dawson’s version of the matter. O’Shea’s is quite different, as to the most essential facts. Dawson states that when he went back to find his money he was unarmed. O’Shea testifies that when Dawson came to the back door, in answer to his question, “Who is there?” Dawson said, “The Kid ” ; that he had his money in a leather collar-box, and his gun lying on the bar ; that he was standing by the bar, between eight and twelve feet from the door, when Dawson came in ; that as he came in, Dawson said, “You son of a bitch,” and raised his gun; that he (O’Shea) raised his gun and fired, and that Dawson reeled and fell, and his gun dropped from his hand. An officer then came in, to whom O’Shea surrendered. Testimony was also introduced by the defendant tending to corroborate O’Shea’s statement that Dawson was armed. There was also testimony as to threats made by Dawson, and communicated to O’Shea, between the time Dawson left in the afternoon and came back at night.
In charging the jury, the court gave full instructions with reference to the defense defined in section 39, before mentioned, and also with reference to assault and battery, which the jury were told was included in the charge. No reference was made to the offense defined by section 40 of the same chapter. As applied to the facts of this case, the essential difference between sections 39 and 40 is that section 39 requires that the assault be made on purpose and of malice aforethought, with intent to kill; while section 40 defines a lower grade of offense, in which the ele-meut of malice aforethought is not included. In order to sustain a conviction under section 40, it is only necessary to prove that the assault was made under such circumstances as would have constituted manslaughter if death had ensued. If the truth is that Dawson made an assault on O’Shea, but failing in his attempt was unnecessarily shot by O’Shea after he had turned to go out of the saloon, a conviction might have been had under section 40. Under instructions incomplete in this particular the case was submitted to the jury, who rendered the following verdict—
“We, the jury duly impaneled and sworn in the above entitled case, do upon our oaths find the defendant guilty of an an assault with a deadly weapon with intent to kill, as charged and set forth in the information.”
This verdict the court construed as a verdict of guilty under section 39, and passed sentence on the defendant of confinement in the Penitentiary for eight years — three years more than is warranted on a conviction under section 40. The requirement of section 239 of the Criminal Code, that the jury shall specify in their verdict of what degree of the offense they find the defendant' guilty, has caused very nice and embarrassing questions to arise in a number of cases ; but it may now be deemed the law of this state, well settled by a line of decisions, that the degree of offense of which the conviction is had must be determined from the verdict itself, and that the addition of the words “ as charged and set forth in the information,” is insufficient to show that the jury intended to find the defendant guilty of every element of the principal crime charged in the information. The State v. Reddick, 7 Kan. 143; The State v. Huber, 8 id. 447; The State v. Treadwell, 54 id. 513, 38 Pac. 813; The State v. Scarlett, 57 id. 252, 45 Pac. 602; The State v. Pickering, 57 id. 326, 46 Pac. 314.
It would appear that the attention of the court was not challenged directly to the provisions of section 40 and its applicability to the facts presented by the case ■on trial. The claim of the State was that the defendant was guilty under section 39 of a premeditated .attempt to commit murder. The claim of the defense was that the action of the defendant was justifiable because done in self-defense. The fact that the defendant shot Dawson and inflicted the wounds from which he suffered, was admitted. The principal acts of the defendant charged to have been criminal, he admitted having done. The matter in issue to be tried was the motives prompting those acts, and the existence or want of justification therefor. The verdict finds the defendant guilty of the acts and also of an intent to kill; but it fails to state either that the acts were done on purpose or of malice aforethought. To constitute the crime defined by section 39 these elements are essential. It may be doubted whether the verdict would be sufficient to sustain a judgment under section 40. The judgment in fact entered was under section 39, and the jury under the instructions of the court were not required to consider whether the defendant was guilty of the offense defined by section 40. In this state of the case we need not determine the question whether the form of the verdict is suf-' ficient to sustain a sentence under section 40. The insufficiency of the verdict necessitates another trial.
What has been said concerning the failure of the court to charge with reference to the offense defined by section 40 has been for the purpose of explaining the question arising on the verdict, rather than of considering whether the court erred in failing to instruct with reference to section 40, where no such instructions were asked. On a re-trial, however, it will be incumbent on the court to carefully charge the jury not only with reference to the principal offense but also with reference to the minor offenses included in it.
Many other criticisms on the instructions are advanced by counsel for the appellant, but we find nothing substantial in any of them. On all other propositions the law seems to have been fully, correctly and clearly stated to the jury.
At the trial the defendant called witnesses to prove his own good character for peace and quietude and also for honesty and integrity. The court admitted the evidence as to the former, but excluded that concerning the latter. The theory on which evidence as to honesty was offered is that it tended to rebut the charge that O’Shea had taken Dawson’s money. The court ruled correctly. He was not on trial for robbery or larceny.
Complaint is also made of the exclusion of evidence •offered for the purpose of showing that Dawson was a robber, and had recently robbed a post-office in New Mexico. In this also the ruling of the court was right. The defendant had no commission to kill robbers, and if Dawson was in fact a criminal, as claimed, it would not tend to exculpate O’Shea. While this case strongly illustrates the natural association of one crime with another, it also exemplifies the rigidity with which the law disconnects one criminal charge from another. According to his own oath, the defendant was a daily violator of at least two of the criminal statutes of the State. For three or four years he had kept a saloon, and for a still longer time he had cohabited with a woman not his wife. He was not on trial for either of these crimes. Although drunkenness and lewdness naturally and often lead to brawling and murder, guilt of these does not prove guilt of attempted murder. The same strictness of proof is still required as in the case of a defendant whose character is irreproachable in these particulars. Unfortunately there are too many persons afflicted with such moral blindness that they do not comprehend the turpitude of one vice though perhaps keenly alive to the enormity of others. The law apportions its punishments according to the magnitude of the offense, and allows only a separate trial and separate punishment for each.
In this' case we are forced to order a new trial because the jury has not been specific in finding the elements of criminality of which they convicted the defendant.
The judgment is reversed and tile cause remanded for a new trial. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Robert Eults against Ephraim Bainter and George Barnett, for the purpose of rescinding, setting aside, and canceling, on the ground of fraud, a certain executed contract, with certain deeds of conveyance, and other matters incidental thereto, whereby Eults exchanged some real estate and personal property belonging to him for some real estate belonging to Bainter. The principal questions discussed by plaintiffs in error are so obscurely and insufficiently presented by the record brought to this court that we think we can hardly consider them at all. The court below finds that the plaintiff below was at the time the alleged fraudulent transaction occurred, “ sixty-nine years of age, illiterate, infirm from age and physical injuries, weak in mind, and incapable of managing his own affairs.” Now how weak in mind was the plaintiff? Was he weak to idiocy, or only slightly weak? We cannot tell from the record. He was “incapable of managing .his own affairs,” but whether from age, illiteracy, physical infirmity, or mental imbecility,'or all, we cannot tell. None of the evidence has been brought to this court, and nothing else shows it. Hence we are left to conjectures and presumptions only. Now, as all presumptions must be construed in favor of the correctness of the findings and judgment of the court below, we must presume in support of such judgment that the plaintiff was extremelyiweak in intellect, mentally so weak as to be “incapable of managing his own affairs,” weak even to the very verge of idiocy; for mental weakness would best excuse him. The court below further finds that—
“On the 19th of October 1,871, Bainter and Barnett went to the farm where Fults lived, and contrived and conspired to cheat and defraud the plaintiff and obtain his property to their own gain and advantage, well knowing that plaintiff at that time was not capable of managing his own affairs; and by means of false and fraudulent representations induced him to agree to exchange the farm in the first paragraph herein described, [Eults’s farm,] and to. pay to the said Bainter in addition as boot-money $1,000 in property, live stock, which Bainter was to have the privilege of bidding off at auction while the sale was progressing, and did bid off to the value and amount of $947.
“On the 11th of November 1871, under threats of vexatious litigation, (because of the refusal of plaintiff and his wife to make a deed,) deeds were made and exchanged,” etc. Fults gave a deed for his farm to Bainter, and Bainter gave a deed for his property to Fults.
Now, how did the defendants “contrive and conspire to cheat and defraud the plaintiff?” -And what were the “false and fraudulent representations,” which they used to effect their purpose? We cannot tell from the record of the case; but in order to sustain the judgment of the court below, we must presume that they were such as would authorize the rescinding of the whole transaction. The counsel for plaintiffs in error claims that all these matters should have been set out in the findings of the court, in elaborate detail. He claims that the supposed false and fraudulent representations should have been set out in the findings, so that we could see whether in fact and in .law they were such as would authorize the rescinding of the contract. But the defendants below did not ask the court to set out these matters in its findings. They did not ask the court to make special findings on any subject. Neither they, nor plaintiff, ask the court to make any findings of any kind. It is therefore the misfortune of the plaintiffs in error, and not of the defendant in error, that the findings do not state the facts in more elaborate detail. It devolves upon the plaintiffs in error to show error, and not upon the defendant in error to show that there was no error. Under the circumstances of this case, we think all the necessary facts in this respect are stated in the findings, although stated in very general and comprehensive terms, and therefore we think the findings in this respect are sufficient. Therefore, up to this point we cannot say that the court below committed any error.
We think that where two men “contrive and conspire to cheat and defraud” a weak old man, mentally so weak as to be wholly “incapable of managing his own affairs,” and by “false and fraudulent representations” do cheat and defraud him, and thereby obtain his property for a grossly inadequate consideration, a court of equity may set aside and cancel all contracts or instruments by which these two men hold the old man’s property, and may place the parties in the same situation and condition in which they were before the fraudulent transactions occurred. The irrelevant findings complained of by plaintiffs in error, cannot prejudice their substantial rights, and therefore are not sufficient grounds upon which to assign error. Barnett does not seem from the record to have got any of the plaintiff’s property. He made nothing out of the transaction,’ an<^ is n°t a party to either of the deeds. Therefore, the judgment rendered against him is erroneous. If the action had been one in the nature of an action at law for damages,, instead of one in the nature of a suit in equity to set aside the contract and deeds, etc., and to place the parties in their original situation, it would have been different. If the plaintiff had sued for damages, he could have recovered damages against both Barnett and Bainter.
Under the facts of this case we are inclined to think that the plaintiff had the right to elect to consider the personal property transferred from himself to Bainter, either as the specific articles transferred, or as the $947 in ~ . , . . . 1 money tor which such articles were taken. Hence; there was no error in rendering judgment against Bainter for that amount of money with interest. No question is made that the articles were not worth the money, and they were taken in lieu of the money.
As this was an action to rescind the contracts made between the parties, and to place them in their original situation and condition, it was error for the court below to so render the judgment that the plaintiff could, if he should choose, retain all the property that he received from Bainter, and still recover from Bainter for the amount of personal property which Bainter received from the plaintiff, Bainter was called into court to have the question determined, whether the transaction between himself and Fults, should be set aside, and each take the property he originally had. Bainter may have cared but little if such should be done. He may have been willing for Fults to make his own showing in such a case. He may have cared but little if the court should render a judgment in substance that the parties should “trade back.” He may have cared but little for a jury trial in such a case as this, and in this kind of action he would not be entitled to a jury trial. And therefore, he may have contested this action but slightly. While if he had known that the judgment was finally to be rendered as one substantially for damages, he may have cared a great deal. In such a case he might have desired to have a jury trial, and if the action had been one for damages, he would have been entitled to a jury trial. He may have considered the property he gave worth as much as the property he received, and therefore might have been willing for a re-exchange of the property, but not willing that a judgment for a large amount of damages should be rendered against him. Now a plaintiff who prosecutes an action for relief, on the ground of fraud, should not prosecute one kind of action up to the very last moment, and then without notice or warning to the other party take a judgment as though his action was a different kind of action. The plaintiff in his petition states among other things as follows: “This plaintiff further shows that he has always been, since the discovery by him that the representations so made as aforesaid by said defendants were falsely and fraudulently made, willing to reconvey to said defendants all the right, interest, and everything whatsoever conveyed by said defendants to this plaintiff, upon reconveyance to him of the real estate and personal property hereinbefore mentioned, and now here offers so to do.” This was a standing offer of the plaintiff up to the time of the rendition of the judgment, and the judgment ought not to relieve the plaintiff from fulfilling this offer. Nothing less than the fulfillment of said offer would be right or equitable in a case of this kind.
The judgment of the court below will be reversed as to Barnett. And it will be modified as to Bainter as follows: Bainter shall within some reasonable time to be fixed by the court below, pay to said Eults said $947, and interest, and shall convey to Fults by a good and sufficient deed, all the said real estate heretofore conveyed by Fults to Bainter, but upon this condition only, that Fults shall first convey to Bainter, by a good and sufficient deed all the said real estate conveyed by Bainter to Fults. In all other respects the judgment of the court below will be affirmed. This case will be remanded to the court below for further proceedings in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by defendant in error to foreclose a note and mortgage. The answer alleged an agreement to extend the time of payment of the note, and that under such agreement the note was not yet due. Upon the trial the district court excluded all testimony under the answer; so the only question now is, whether the answer set up a valid agreement for the extension of time of payment. It unquestionably alleges an agreement on the part of the payee to extend. Does it disclose a consideration for such agreement, or does it appear as a mere nudum pactum? The note sued upon was dated January 20th 1873, was for $1,030, and drew interest from date until paid at 12 per cent.-per annum. The answer, after alleging that the agreement on the part of the payee to extend was made on the 23d of January 1874, the day of the maturity of the note, alleges the payment in pursuance of the agreement of $150, “which was indorsed on said note, and that said sum was paid as the consideration for the forbearance and extending the time of payment of said note.” The copy of the note attached to the petition shows this indorsement, “Eec’d on the within $150, interest to date — Jan. 23d 1874.” It seems clear, that all that is intended by this allegation is, that a payment of $150 was made, which was understood by both parties as a payment on the note, and so indorsed, and that as such payment it was claimed as sufficient consideration for the promise to extend. That this is not the law, is abundantly established. A payment of that which is already due, is no consideration for a new promise by the payee. But the answer goes further, and alleges that this agreement for extension “was modified on the 24th of February 1874 by. the said Thomas Eoyal agreeing to pay the interest on said sum of money each month to the said plaintiff at the rate of fifteen per cent, per annum; that as a part performance of said modified agreement, said Eoyal paid the said plaintiff the sum of $18.” As under the law then in force respecting interest, (Laws of 1872, page 284,) only twelve per cent, could be recovered, and any payment in excess of that per cent, was to be taken as a payment of the principal, and as by its terms this note drew , interest until paid at the rate of twelve per cent, per annum, it does not seem that the promise to pay fifteen per cent, presented any new consideration — though it was said by the court in Bank v. Woodward, 5 N. H. 99, that a promise to give day of payment, founded upon a usurious consideration is certainly not void.” To the same effect are Kelley v. Gillaspie, 12 Iowa, 55; Corielle v. Allen, 13 Iowa, 289. But contra, see Payne v. Powell, 14 Texas, 600. There remains therefore the single fact, that the payor, in consideration of the extension, promised to pay interest and promised to pay it in a manner different from that prescribed in the note, i. e., monthly instead of annually. That a promise to pay interest for a definite period of time, is a sufficient consideration for an agreement to extend for a like period the day of payment, is affirmed by these authorities: Wheat v. Kendall, 6 N. H. 504; Bailey v. Adams, 10 N. H. 162; Chute v. Pattee, 37 Maine, 102; McComb v. Kittridge, 14 Ohio, 348; 2 Am. Leading Cases, 5th ed., 469. It is denied, in Reynolds v. Ward, 5 Wend. 502; Kellogg v. Olmsted, 25 N. Y. 189; Parmalle v. Thompson, 45 N. Y. 58; Gibson v. Irby, 17 Texas, 173; 2 Parsons on Notes and Bills, 528. It is perhaps not necessary that this question shall in this case be definitely decided, though we may say that the suggestions made in favor of the proposition by the court in the case from 14 Ohio, seem to us of great force. We prefer to rest our decision upon what seems less doubtful ground, viz., the promise to pay interest in a different manner from that prescribed in the note. The note calls for interest at the rate of twelve per cent per annum. True, it bears this rate after maturity, and until payment. And after maturity, in the absence of any new agreement, the note is due each day with the accumulation of interest to that day. But in the absence of such new agreement, there is no rest in the computation of interest except at the end of each year, while by the agreement there would be such rest every month. A promise to pay a greater interest, not usurious, would unquestionably be a sufficient consideration, and this for the reason that a higher and different obligation was assumed by the promisor. Upon the same principle, though perhaps not presenting so clear a case, we think the promise before us can be sustained as a sufficient consideration. This is the assumption, of a new, different, and slightly more onerous obligation. We think therefore the district court erred in its ruling, and the judgment must be reversed, and the case remanded for a new trial.
Kingman, C. J., concurs. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of an action of ejectment, for the recovery of certain real property, to-wit, lot 27, block 45, in Leavenworth city. The case was submitted to the court below, without a jury, and the court made separate findings of fact and conclusions of law. And while some of the findings of fact are sustained by but very little evidence, yet we think they are all sustained by sufficient evidence. Or at least, we cannot say that any material finding of fact is so far unsustained by evidence that wé should reverse the judgment of the court below on that account.
The judgment of the district court was in favor of the plaintiff below, Mrs. Rafferty, and against the defendants below, Duffey and the Millers. Is this judgment correct upon the facts, as found by the court below? It s§ems that the legal title to the property in controversy is still outstanding in the original patentee, William H. Russell; and therefore the only questions now to be determined, as between these parties, are, has the plaintiff Mrs. Rafferty any kind of right to said- property ? and if so, who has the better right thereto, herself or the defendants ? If she has any right to the property, and if that right is paramount to any right possessed by the defendants, she may recover, notwithstanding some other person not a party to the action may have a better right to the property than she has. Mrs. Rafferty’s title to the property in controversy is substantially as follows : In 1854 the Leavenworth Town Company took possession of and surveyed and platted the original town-site of Leavenworth city. The title however to said town-site was still in the government of the United States, in trust for the Delaware Indians. (In this connection see Fackler v. Ford, 24 Howard, 322; same case, McCahon, 21; Maduska v. Thomas, 6 Kas., 153.) Said company sold some of the lots, and apportioned .others to the members of the town company. In this way lots 27 and 28 in block 45 in said city were apportioned to Daniel H. Stevens, a member of the town company. In 1855 Stevens sold said lots to William R. Oliver and William Montgomery. On the 19th of Septem-ber 1856, Oliver died, leaving a widow and two minor daughters, Hattie M., and Maggie, the first of whom is now the plaintiff in this action, Mrs. Rafferty. December 11th 1856, Mrs. Oliver was duly appointed guardian for said minor children. February 11th 1857 said Russell, as the agent and trustee of said town company, and of the persons entitled to lots under said sales and apportionments made by said town company, purchased said lots from the government of the United States, -paying therefor from funds raised by said town company for that purpose, and received from the sales of lots and from assessments made on lots, a portion of which assessments was paid by Stevens. In April 1857, Russell and wife executed a deed for lot 28 to Montgomery, and not knowing that Oliver was dead they also at the same time executed a deed for lot 27 to Oliver. Montgomery accepted his deed, and put the same on record. Mrs. Oliver also accepted the deed made to Oliver, and put the same on record, and from that time till April, 1858, she had the entire possession of said lot 27, when she gave possession thereof to Simon Cort, defendant Duffey’s grantor. October 15th 1859 Mrs., Oliver died, and two weeks thereafter Maggie Oliver, Mrs. Rafferty’s sister, died, aged only five years. Cort and the defendants have had possession of said lot ever since. Cort received the possession thereof from Mrs. Oliver; and at no time since Russell executed said deeds to Oliver and Montgomery has either Russell or Montgomery made any claim to said lot 27. The defendant’s title to said lot 27 is as follows: In 1858 Mrs. Oliver in her own right, and as guardian for her said minor children, by one William Lynn, attempted to sell said lot 27 to Simon Cort, and gave Cort possession of the lot. On the day of the death of Mrs. Oliver, and subsequently thereto, there were some proceedings had in the probate court with reference to said sale and said lot 27, but as these proceedings were so manifestly void that even the defendants themselves do not claim anything under them, we shall not make any further mention of them. August 29th 1860 Cort sold and conveyed said lot 27 to the defendant Duffey, and gave him possession thereof; and the other defendants hold under Duffey. Duffey has been in possession of said lot 27 ever since he purchased it from Cort, and no one but the plaintiff has ever attempted to disturb his possession, or right of possession thereto. Now taking all these facts together, we think they show that the plaintiff has some right to said lot, not only as against the defendants but also as against every other person; and that while the defendants might have some right to the property as against a mere wrongdoer, or against any person who had no rights thereto, yet that they have no right or title as against the plaintiff. The facts, as we think, show that when Oliver- died he had an equitable interest in the fund with which said lot was purchased; that he had an equitable right to demand that said fund should be used for the purpose of purchasing said lot; and that it was such a right as would descend to his heirs. The fund was devoted to the express purpose of purchasing said property; and when Russell used the fund in purchasing the same from the United States, a trust estate immediately resulted therein in favor of the heirs of Oliver, coextensive with their interest in said fund. At the time of the death of Oliver his two minor children, Hattie M. and Maggie, were his heirs. (Laws of 1855, p. 306, § 1.) His widow, if entitled to anything, was entitled to only a dower interest of one-third during her natural life. (Laws of 1855, supra, and also p. 314, § 1.) Therefore, when Mrs. Oliver died, her interest in the property, if she ever had any, lapsed, and the whole interest derived from Oliver passed to the two minor children; and when Maggie died, her interest in the property passed to her sister Hattie M., now Mrs. Rafferty. (Laws of 1859, p. 383, § 19.) From the acts of all the parties there must have been an equitable partition of the property between Oliver and Montgomery. At least, it so appears from the acts of Montgomery and Russell, the parties most interested in the matter, and the only parties who have any right to controvert the matter. An equitable partition, a mere parol partition, of real estate, followed by acts, where the parties have only an equitable interest in the property, is sufficient.
From the foregoing it would seem that the plaintiff ought to recover in this case. Even if Cort obtained from Mrs. Oliver her dower interest in the property in controversy, still that dower interest had terminated- before Duffey purchased the property from Cort, and long before this action was commenced. Duffey never obtained any interest in said property, legal or equitable. He never had anything more than a bare naked possession, derived from the plaintiff’s guardian, through Cort and Lynn. Now under these circumstances, even if the plaintiff had no title, legal or equitable, to said lot, yet still it would seem that she ought to recover. Her possession through her guardian was prior in time to that of the defendants, and the defendants hold under her possession. Now it is a general rule that as between parties claiming title, mere priority of possession gives precedence, where no better title can be shown as belonging to either. And this rule will certainly apply to this case, provided the plaintiff has failed to show any better title than a mere priority of possession with a claim of ownership.
There are other grounds suggested by plaintiff in error for the reversal of the judgment below, but we do not think that they are tenable.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Parker, J.:
This is an action against a gas company and a plumber to recover damages for injuries sustained as the result of a gas explosion. The appeal presents the 'propriety of the trial court’s order in overruling the defendant plumber’s demurrer to allegations of the petition charging that his negligence in igniting gas caused the explosion which resulted in the injuries suffered by the plaintiff.
While we are not here concerned with allegations of the petition respecting liability of the gas company or the plumber, Hensley — hereinafter in the interest of brevity referred to as the defendant- — for alleged negligence in the construction of a gas service line, the petition relates the story required for a full and complete understanding of the issue raised by the appeal about as briefly as it can be told. For that reason it will be quoted at length.
Allegations of such pleading so far as they relate to facts and circumstances relied on for recovery read:
“1. That the plaintiff is a resident of Wichita, Sedgwick County, Kansas, and her correct post office address is 1642 Salina Street, Wichita, Kansas.
“2. That the Defendant, Eugene Hensley, is a resident of Wichita, Sedgwick County, Kansas, and that he is engaged in the plumbing business doing business under the firm name and style of the Wichita Plumbing and Heating Company.
“3. That the Defendant, the Consolidated Gas Utilities Corporation, is a corporation duly organized and authorized to do business in the state of Kansas with its place of business located at 411 Beacon Building, Wichita, Kansas.
“4. That on or about July 9, 1943, the defendant, the Consolidated Gas Utilities Corporation, was furnishing gas to the premises located at 1642 South Salina Street in Wichita, Kansas. That on that day the Plaintiff became aware of the fact that there was gas escaping on or about the premises at 1642 Salina Street in Wichita, Kansas. That immediately thereafter the Plaintiff’s husband, notified the Consolidated Gas Utilities Corporation that there was gas leaking somewhere on or about the premises located at 1642 Salina Street.
“Plaintiff further alleges that said Defendant, the Consolidated Gas Utilities Corporation, was notified by her husband J. J. Kinderknecht, by telephone and such notice was given to the Service Department of said defendant corporation; and that said defendant corporation, upon being notified of said gas leakage on or about the premises on which this Plaintiff was living, negligently and carelessly failed and refused to ascertain the cause of said gas leakage or to shut off the service line of said gas and failed to do anything whatsoever to protect the person and property of this Plaintiff. That the valves and gate on the service line. leading into the Plaintiff’s property are also under the full control and custody of this Defendant; and upon being notified of the leak upon said premises of this Plaintiff,' the said Consolidated Gas Utilities Corporation made no effort whatsoever to shut off the service to these premises.
“Plaintiff further alleges that as a result thereof Plaintiff called the Wichita Plumbing and Heating Company which is owned and operated by the Defendant, Eugene Hensley. That the Defendant, Eugene Hensley, instructed this plaintiff to shut the gas off at the meter and shut off all burners and pilot lights in the house and open the windows and said he would be out and make an examination of the plumbing on the premises and this Plaintiff followed these instructions.'
“That the said Defendant, Eugene Hensley, on or about 6:00 o’clock on July 9, 194S, while making an inspection of the premises located at 1642 Salina Street, negligently, carelessly and recklessly ignited gas fumes in the basement 0} said premises causing a violent explosion and severely burning and injuring this Plaintiff as hereinafter alleged.
“Plaintiff states that the exact manner and circumstance under ivhich said explosion occurred is unknown to this Plaintiff but is within the full and sole knowledge of the Defendant, Eugene Hensley. That a leak in the service pipe leading into the meter on the above described premises allowed gas to accumulate on the premises where this Plaintiff was living.
“That all the plumbing work including the service line on these premises was constructed by the Defendant, Eugene Hensley, and his employees and that the same was done in a negligent manner.
“That the negligence of the Defendant, the Consolidated Gas Utilities Corporation, in failing to shut off the gas at the service main together with the negligence of the Defendant, Eugene Hensley, as heretofore alleged were the sole and proximate causes of the damages sustained by this Plaintiff.” (Emphasis ours.)
On examination of the allegations of the petition as quoted, even though not separately stated and numbered, it is evident plaintiff bases her right to relief so far as defendant is concerned upon two separate and distinct causes of action. One is founded upon the theory that he was liable because of negligent construction of a gas service line some time prior to the date she suffered injury, and the other is predicated upon the premise of negligence in the ignition of gas fumes on the day the explosion occurred.
After this pleading had been filed defendant presented a motion to make it more definite and certain with respect, first to negligence ■ relied on as a basis for recovery in the ignition of gas, and second, negligence permitting recovery for defective construction of the service line. This motion was overruled as to the first ground and sustained on the second. With the latter we are not concerned nor will we hereinafter make reference to it except to say defendant now concedes that when an amended petition was filed additional allegations pertaining to construction of the service line were sufficient to state a cause of action. The all-important point is that no attempt was made to amend allegations challenged in the first ground of the motion and that the amended petition when filed contained the identical averments to be found in the original pleading as to alleged negligent ignition of gas and the plaintiff continues to rely on them for recovery. So, in our consideration of this appeal it must be kept in mind that the quoted allegations of the petition, which we have underlined for purposes of emphasis, are the same as those to be found in the amended pleading filed after the original one had been motioned.
To the amended petition the defendant filed a special demurrer the averments of which were that its allegations with respect'to ignition of gas by him as alleged therein did not constitute a cause of action and that such allegations should be stricken therefrom. This demurrer was overruled by the trial court. Thereupon the defendant appealed.
From what has been related it becomes immediately apparent the sole question presented for review is whether the amended petition states facts sufficient to constitute a cause of action against defendant for negligence in igniting gas. We proceed on that premise and our consideration of the rights of the parties is limited strictly to its- decision.
In the determination of such a question it must be conceded at the outset that the mere fact an accident — in this case an explosion— occurs and injury results is not sufficient to establish liability. It is elementary law in Kansas that before a plaintiff can recover in an action predicated upon negligence he must both allege and prove the negligence of the defendant which was the proximate cause of the injury for which recovery is sought. (Zinn v. Updegraff, 113 Kan. 25, 213 Pac. 816, and Stroud v. Sinclair Refining Co., 144 Kan. 74, 58 P. 2d 77.)
Likewise, so frequently decided and so well established in this jurisdiction that it too can be said to be almost elemental, is the proposition that when timely motions resisted by a plaintiff are leveled against a petition and overruled by a trial court, and thereafter its legal sufficiency is tested by a demurrer, the allegations thereof are no longer entitled to a liberal interpretation but must be strictly construed with the view the plaintiff has pleaded all that he can that is in his favor. (See Lorton v. Henderson, 159 Kan. 697, 705, 158 P. 2d 373; Sanik v. Shryock Realty Co., 156 Kan. 641, 135 P. 2d 545; Gibson v. Bodley, 156 Kan. 338, 133 P. 2d 112; Mead v. City of Coffeyville, 152 Kan. 799, 107 P. 2d 711; Lofland v. Croman, 152 Kan. 312, 103 P. 2d 772; Knight v. Hackett, 149 Kan. 492, 87 P. 2d 505 and State Highway Comm. v. American Mut. Liability Ins. Co., 146 Kan. 187, 70 P. 2d 20.) While it is true a general demurrer brings into issue the force and effect of the petition as a whole, and most of the decisions just cited deal with such a situation, the same rule prevails and is equally applicable where, as here, the pleader having failed to separately state and number his causes of action, certain allegations of his pleadings relied on as sufficiently stating one cause of action or ground of recovery are specifically pointed out and challenged by a special demurrer the averments of which contain the essential attributes of both a demurrer and a motion to strike.
What then is to be said for allegations of the petition which, as has been heretofore stated, have been underlined for purposes of emphasis? No useful purpose would be served by, nor does necessity exist for, their restatement. The underlined language speaks for itself. Briefly stated, appellant’s position is that in view of the circumstances and conditions heretofore related the allegations of negligence therein found are so general that under our decisions his special demurrer should have been sustained.
That appellant’s contention is well founded is evidenced by our decisions. In the early case of A. T. & S. F. Rld. Co. v. O’Neill, 49 Kan. 367, 30 Pac. 470, this court enunciated the rule to which it has consistently adhered throughout the years. There it was held:
“If the petition contains but a general allegation of negligence, it is subject to a motion requiring it to be made more definite and certain, and it is error for the court to overrule a proper motion presented for that purpose.” (Syl. IT 2.)
Later, in the case of Knight v. Hackett, 149 Kan. 492, 87 P. 2d 505, the principle was approved and stated thus:
“In an action for damages growing out of an automobile collision, a petition which fails to state any specific facts showing negligence on the part of defendant where defendant’s motion to make definite and certain was resisted and overruled is subject to demurrer.” (Syl. HI.)
Still later in Munger v. Beiderwell, 155 Kan. 187, 124 P. 2d 452, where the subject was directly involved it was again adhered to and reaffirmed when we said:
“In response to the motion leveled against the seventh amended petition the trial court struck general allegations of negligence contained in various paragraphs of that petition. The ruling did not constitute error. General allegations of negligence are sufficient as against a demurrer when not challenged by motion to make definite and certain, but they are not sufficient when previously so challenged. (A. T. & S. F. Rld. Co v. O’Neill, 49 Kan. 367, 30 Pac. 470; St. L. & S. F. Rly. Co. v. French, 56 Kan. 584, 44 Pac. 12; Neosho County v. Spearman, 89 Kan. 106, 130 Pac. 677; Kirkland v. Railway Co., 104 Kan. 388, 179 Pac. 362.) The same rule applies with equal force to general allegations of contributory negligence. (Price v. Water Co., 58 Kan. 551, 558, 50 Pac. 450; Kirkland v. Railway Co., supra, p. 392.)” (p. 187.)
It should perhaps be here noted all parties agree the doctrine of ■ res ipsa loquitur is not applicable to the facts as pleaded, and that if the involved allegations of the petition state a cause of action at all it is upon the theory of negligence of the defendant as therein specified.
Appellee recognizes the force and effect of the decisions to which we have just referred but advances the proposition there should be read into the doctrine an exception to the effect that where the facts of an accident are within the sole and peculiar knowledge of the defendant general allegations of negligence are to be regarded as stating a cause of action notwithstanding. She frankly concedes she has made search but has been unable to find any Kansas decision upon the exact point. We are inclined to believe her efforts failed to exhaust all possibilities. Let us see.
Munger v. Beiderwell, supra, is a case where a landlord had instituted an action against his tenant to recover damages resulting from the destruction of a barn and contents by fire. The plaintiff contended he was not present and did not know what caused the fire but that defendant was present and knew, or should have known, what caused it. True, plaintiff’s claim was that his petition was sufficient under the doctrine of res ipsa loquitur, but this court expressly stated no such facts or circumstances were alleged and held the petition was predicated upon a theory of specific negligence. In disposing of just such a contention as is here advanced this court said:
“Assuming, for the moment, the respective causes of action were actually pleaded in separate counts, appellant was, nevertheless, obliged to plead the substantive facts concerning the negligence upon which he relied. He could not plead such negligence in general terms when properly and timely challenged by motion. . . . Appellant urges it is never necessary to narrate the evidence but only to plead the substantive facts. True, but general charges of negligence do not constitute the pleading of substantive facts.” (p. 189.)
So, also, in Waddell v. Woods, 158 Kan. 469, 148 P. 2d 1016, the petition alleged:
“.‘Plaintiff further says that the giving of X-ray treatment under the circumstances alleged herein is such a highly skilled and specialized art and science that he has no knowledge of what is proper technique and method and manner of giving and applying said treatment, and for that reason is unable to set out in detail or in substance the negligence of the defendant which were the approximate results of said injury, with this exception: That among the acts of negligence was the delegation of said work to a person unknown to this plaintiff and who was not a physican and surgeon and otherwise not qualified, as plaintiff is informed and verily believes and, therefore, states the fact to be without additional and further knowledge which is not available to him.’ ” (p. 470.)
Here again it was contended the petition stated facts sufficient to warrant application of the doctrine of res ipsa loquitur. Nevertheless, after rejection of that theory -and when the question then was whether general allegations of negligence were sufficient it was held, even though lack of knowledge was relied on as justifying their use, there was no sufficient allegation of negligence to withstand a demurrer to the petition and in the opinion it was stated: “The mere fact the pleader said the act was one of negligence did not make it so.”
In our opinion, the decisions just referred to are determinative of appellee’s theory that general allegations of negligence will suffice in the stating of a cause of action when bolstered by averments to the effect the facts are not within the knowledge of the pleader and preclude its. adoption. It should be added that without benefit of such decisions as precedential guides our conclusion would be the same. Applicable portions of G. S. 1935, 60-704, provide:
“The petition must contain . . .
“Second: A statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition.”
Substitution of bare conclusions for facts is not contemplated by the statute just quoted, and to permit that action in the manner, and under the conditions suggested by appellee would do violence to the mandate therein clearly expressed.
Once again, having established principles to be applied in its construction, we turn to consideration of the petition. When strictly construed, and stripped of general allegations in the nature of naked conclusions, as it must be, we find it simply states appellant ignited gas fumes in the basement of appellee’s premises causing a violent explosion. That statement of fact standing alone does not charge the appellant was guilty of any negligent act or omission. For all the petition discloses, his conduct in that regard might have been entirely consistent with the action of a prudent plumber who was exercising due care in the making of a careful and proper inspection of the appellee’s premises. As we have seen, the fact an accident happens or an event occurs in which injury results is not sufficient to establish liability (Starks Food Markets, Inc., v. El Dorado Refining Co., 156 Kan. 577, 134 P. 2d 1102; Zinn v. Updegraff, supra, and Stroud v. Sinclair Refining Co., supra. The same reasoning which impels that conclusion requires the additional one that a petition revealing such a situation, coupled with a bare allegation that it resulted from ignition of gas by a defendant, does not state a cause of action. Proof of- the substantive facts as pleaded would not even permit rendition of judgment against the appellant. It follows the trial court erred in overruling his special demurrer.
The judgment is reversed. | [
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HUNTER, Judge.
This is an action by appellant, Grace L. Bell, against the estate of Dr. A. J. Bell, deceased, for the value of meals and personal services allegedly provided by her to Dr. Bell from September 1, 1953, to May 16, 1959.
By way of background, appellant is the wife of witness Arthur J. Bell, the son of Dr. A. J. Bell, of Nevada, Mo., who died at the age of eighty-nine on May 16, 1959. Dr. Bell left no other surviving children but did have surviving him at least one grandchild from another child.
During his latter years Dr. Bell suffered from arteriosclerosis, a duodenal ulcer and possibly Parkinson’s disease. About September 1, 1953, Mr. Bell and appellant, moved from Sylacauga, Alabama to Nevada, Missouri, to look after Mr. Bell’s aging mother (then living) and father. Mr. and Mrs. Bell moved into a house in Nevada which, according to some of the testimony, was owned by Dr. Bell. It was the practice of Dr. Bell after his wife passed away in September, 1953, to eat some of his meals at the home occupied by his son. He ate other meals in restaurants in Nevada. About March 1, 1959, Dr. Bell was hospitalized in Pulaski, Tennessee, for three weeks and Mr. and Mrs. Bell stayed in Pulaski, Tennessee, the following six weeks to help care for him. The other times in question Dr. Bell resided in Nevada, Missouri, apparently to the date of his death.
The cause was tried to a jury which returned its verdict in favor of appellant in the sum of $5,908.00, the full amount of the claim. Thereafter, in ruling on respondent’s motion for a new trial, the trial court ordered, “If plaintiff will in 10 days remit $2,416.00 of her claim and the jury’s verdict, and consent to entrance of judgment in the amount of $3,492.00, motion for new trial will be overruled; otherwise motion will be sustained and a new trial will be entered herein.”
Appellant refused to remit, and after ten days had passed the trial court sustained respondent’s motion for a new trial and granted a new trial “because (1) the verdict of the jury is excessive, and (2) because the verdict of the jury includes items that are barred by the statute of limitations.”
Appellant’s present contentions are that the evidence is such that the trial court was not justified in setting aside the jury’s verdict as excessive, and that no part of the claim was barred by the statute of limitations.
The law concerning the right of a trial court to set aside a verdict on the ground the verdict is excessive and to order a new trial is well settled. In Union Electric Company of Missouri v. McNulty, Mo. Sup., 344 S.W.2d 37, 39, it was summarized, “Granting a new trial on the ground a verdict is excessive or inadequate is a holding that the verdict is against the weight of the evidence on that fact issue. Bailey v. Interstate Airmotive, Inc., 358 Mo. 1121, 219 S.W.2d 333(15), 8 A.L.R.2d 710; State ex rel. State Highway Comm. v. Liddle, Mo.App., 193 S.W.2d 625(1); Supreme Court Rule 78.01, V.A.M.R. Such ruling is peculiarly within the sound discretion of the trial court, which may weigh the evidence, whereas appellate courts do not weigh the evidence in reviewing a jury tried action at law (Sofian v. Douglas, 324 Mo. 258, 23 S.W.2d 126, 129); and the trial court’s action is not overturned unless the trial court has manifestly abused its discretion, as where its action is not supported by any substantial evidence.”
The question for our determination is whether the trial judge was guilty of an abuse of discretion in granting a new trial on the ground the verdict was against the weight of the evidence in the respect that the verdict was excessive, and this the appellant has the burden of establishing on the record before us. Appellate courts determine the issue as one of law and do not weigh the evidence or pass on the credibility of the witnesses, and must view the evidence in the light most favorable to affirming the trial court’s action. Huffman v. Mercer, Mo.Sup., 295 S.W.2d 27; Bierman v. Langston, Mo.Sup., 304 S.W.2d 865; Greco v. Hendricks, Mo.Sup., 327 S.W.2d 241. If the evidence viewed in such light does afford reasonable and substantial support for the trial court’s order or remittitur, then there is no abuse of discretion, and the trial court’s action must be sustained. Wicker v. Knox Glass Associates, 362 Mo. 614, 242 S.W.2d 566.
In her “List of Services Performed” appellant claims that from September 1, 1953, to October 30, 1953, she prepared and served Dr. Bell three meals for sixty-days of a value of $4.00 per day for a total of $240.00, and that from November 1, to December 15, she provided three meals a day for forty-five days, claiming $180.00.
Appellant did not testify on the issues, and her husband’s testimony on her behalf was that his father took three meals a day with him “until nearly the first of November, I don’t know just exactly the date that he stopped taking meals there. * * * I don’t know just exactly how long it was * * *. It was continuous and then it would vary too, you would never know when he was coming in or when he was going to be there, he would jüst walk in, stay long enough to eat and leave.”
Appellant claimed that in 1954 she provided three meals a day from January 12, to June 7th, a total of 147 days at $4.00 per day for a total of $558.00; from June 21, to September 21, three meals per day for 90 days for a total of $360.00; and from October 1, to December 24, three meals per day for fifty-five days for $220.00. In 1955, from January 25 to April, she provided three meals per day for 77 days for $308.00. The total of these claims for meals is $1,896.00.
Appellant’s husband’s testimony relied upon to support this portion of her claim was vague. When Dr. Bell ate with them “was continuous and then it would vary too.” Also when with them he sometimes ate only one or two meals each day claimed, but the charge was still $4.00 for each such day. Mr. Bell was asked, “Q. * * * When he was boarding at your house, who paid the grocery bill? A. I paid most of it, my wife paid it, the rest of it. * * * I furnished all of it but about $600.00. * * Q. In the whole eight years she only had $600.00 of her own money ? A. That’s right.”
Appellant makes no claim for anything for the period from April,. 1955, to January 20, 1957. Commencing on January 21, 1957, to May 16, 1959, appellant claims she provided meals, nursing care, house cleaning, sewing and attending Dr. Bell’s personal needs for a total of $4,012.00. The meals were again valued at $4.00 per day no matter how many were eaten on a particular day. The rate charged by appellant for the other services mentioned was not specifically testified to, although there was testimony as to charges made by others in that vicinity for practical nurse care.
Respondent adduced evidence to the effect that during some portions of the time Dr. Bell was being charged for three meals a day by appellant he was taking some of his meals at a local restaurant where he paid on an average of about 5(⅛ per meal. Dr. Bell’s grandson testified that during a part of the time in question, and at a time his grandfather had appellant and her husband staying at Dr. Bell’s house, Dr. Bell paid for the biggest part of the groceries.
We believe it unnecessary to further detail the evidence. It is clear that appellant is claiming several thousand dollars for meals she asserts she provided Dr. Bell over an eight year period. Yet her husband’s testimony which she relies upon as her proof is to the effect she had available only $600.00 of her own money during this entire period. His evidence indicates he and not his wife paid the bulk of the expense of these meals on which she bases her claim. While appellant, through her husband’s testimony, valued these meals at the rate of $4.00 per day there is other evidence indicating that evaluation is far too high. As to exactly how many days Dr. Bell ate one, two or three meals she provided, or how many meals she provided him on any particular day the testimony is vague. It is also vague concerning much of the other services and personal care she claims to have provided and the value thereof. On this testimony the jury gave her recovery in the full amount of her claim.
Assuming, without deciding, that none of the claimed items is barred by the statute of limitations it is our view that the evidence considered in its entirety fully supports the trial judge’s grant of a new trial for the reason that the jury’s verdict was excessive. The record before us does not demonstrate any abuse of discretion by the trial court in granting a new trial.
Having so decided, it is unnecessary and of no usefulness to determine the question of the statute of limitations, stated by the trial court as an additional reason for the grant of a new trial. The parties are now enlightened on this subject by their research as revealed by their briefs, and this question may not arise on a retrial; or if it does, it may be presented under different or additional evidence.
The order granting a new trial is affirmed.
All concur. | [
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