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Doster, O. J. At the January term of the District Court of Ellsworth County, for the year 1890, the plaintiff in error, Jerome B. Handy, recovered a judgment for money, and for the foreclosure of a real-estate mortgage, against the defendant in error, The Burrton Land and Town Company. In the same action and at the same term, The Ellsworth Loan and Investment Company recovered upon its answer and cross-petition a like judgment against the same defendant. The Burrton Land and Town Company instituted proceedings in error to reverse these judgments, and, as allowed by the statute, gave a supersedeas bond for stay of execution, signed by itself and the other defendants in error in this proceeding. The condition of this bond was, that, in case the judgments were not reversed, the sureties would pay such deficiency as remained after the sale of the mortgaged real estate. The judgments were not reversed. The deficiency arising after the sale of the real estate was not paid, and action was thereupon instituted upon the supersedeas bond. This action was tried to the court without a jury, and judgment was rendered in favor of the defendants. The reason for the rendition of this judgment was the misrecital of a date in the bond. The effect of this misrecital occasioned a variance between the pleadings and proof. As before stated, the judgments were recovered at the January term, 1890, but the bond incorrectly recited the term as November, 1890. The petition did not pray for a reformation of the bond, and the sole question is, Can the sureties be held, or should they be discharged on account of the misrecital of dates ? It appeared in testimony at the trial that at the time of the execution of the bond the sureties were stockholders in the Burrton Land and Town Company. The sureties all testified that, they remembered the circumstance of the recovery of the judgments against the Company; that they remembered the signing of the bond sued upon ; that it was the only one signed by them in the action in question, and that it was signed by them to stay further proceedings in the case. The testimony further showed that, other than the one in question, no case entitled Jerome B. Handy v. The Burrton Land and Town Company had ever been brought or tried in the District Court of Ells-worth County. In short, the identity of the bond sued upon as the one intended to be given by the sureties for the purpose of staying execution upon the judgments mentioned, was conclusively established. Under such circumstances, can the misrecital in the bond of the date of the judgments intended to be .stayed by it avail the sureties as a defense? We are clearly of the opinion that it cannot. The bond correctly recited the amount of the judgments, together with the title of the case, the court in which rendered, and the institution of the proceedings in error ; and when supplemented by the above-mentioned extrinsic evidence establishing the identity of the bond, it becomes manifest that the misrecital of dates was a mere clerical error, of which the obligors on the bond were themselves aware and which has in no wise prejudiced their substantial rights. Section 133 of the Civil Code declares: “ No variance between the allegations in a pleading and the proof is to be deemed material unless it have actually misled the adverse party to his prejudice, in maintaining his action or defense upon the merits.” And section 140 declares : “The court in every stage of action must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall- be reversed or affected by reason of such error or defect.” The spirit of these two provisions will not permit the non-suit of the plaintiff below because of the mistaken recital of dates in the bond sued upon. The authorities, while few in number, support the view we have taken. In Thalheimer v. Crow (13 Col. 397, 26 Pac. 779), it appeared that the name of Wilson as a party to a bond had been written Nelson. The court held it a clerical mistake which in no way misled the defendants or operated to prejudice their defense. In Lux v. McLeod (19 Col. 465, 36 Pac. 246), which was an action upon an appeal bond, the court held that an allegation of the recovery of a judgment by J, which in fact was recovered by C for the use of J, was an immaterial variance. The writer, speaking for himself, is of the opinion that the question is resolvable upon general considerations applicable to the nature and effect of recitals in written instruments. Recitals are of two kinds — particular and general; or, as applied to cases like the one in hand, contractual and non-contractual. The former constitute parts of the obligatory portion of the instrument. The facts recited are the moving causes for the making of the contract. They constitute the consideration for its execution. Non-contractual recitals, however, are made for the purposes of explanation — made to set the acts of the parties in the light of those incidents which are convenient to an understanding of the instrument, but which do not constitute the justification for making it. 2 Wharton’s Evidence, §§ 1039, 1040, 1083 ; 1 Greenleaf on Evidence, § 285.' In this case, the recitals in the bond sued upon, of the recovery of the judgments, were contractual, or dispositive. The obligors could not be heard to dispute them. The date of the recovery of the judgments was a mere incident. That they were recovered upon a particular date and upon no other, was not the moving cause of the execution of the bond. A recital of the date might have been omitted, and the terms of the instrument would have been quite as intelligible to the understanding and fully as binding in point of law. Again it will be observed that the bond is unilateral in its execution. It is the obligation of the signers, and of no one else. The obligee is entitled to sue upon it, but he had no part in drafting it; he proposed none of its recitals ; the mistakes it contains are not his mistakes, but are those of his adversary; he approved none of its terms ; however unwilling he may have been to the delay in the enforcement of his judgments, which followed the execution of the bond by the signors and its approval by the clerk, he was compelled to submit. The writer feels clear that in such case the misrecital of dates in the bond cannot in law operate to the prejudice of the obligee, the plaintiff in error. “ In order that a recital may bind all parties to an instrument it must be intended to be a statement of facts which all admit to be true. Where it is intended to be the statement of one party, that party only is bound.” 20 Am. & Eng. Encyc. Law, 463. The judgment of the court below is reversed for further proceedings in accordance with this opinion.
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Johnston, J. On August 7, 1893, M. H. Motsinger and Mollie A. Motsinger, Ms wife, executed five promissory notes payable to Henry F. Miller, the first of which was for $100 and' due two years after date ; the second, third and fourth, for $100 each, and due respectively in three, four and five years after date ; while the fifth was for $1600, and was due ten years after date. At the same time, they executed a mortgage upon real estate to secure the payment of the notes. The notes were transferred to Ludwick F. Miller, and an alleged default having been made in the payment of interest he brought an action, on- March 13, 1895, asking for a recovery upon all of the notes and for a foreclosure of the mortgage, upon the theory that the failure to pay the interest annually, made the whole debt due and entitled the holder of the same to a foreclosure of the mortgage. The following is a copy of the note which first matured — “1100.00. Norcatur, Nan., August 7, 1893. ‘' Two years after date we promise to pay to the order of Henry F. Miller, one hundred dollars,, for value received, negotiable and payable without defalcation or discount, and interest from date at the rate of six per cent, per annum, and if interest be not paid annually to become as principal and bear the same rate of interest. Without exemption from appraisement, valuation or homestead laws. M. H. Motsinger, Mollie A. Motsinger.” Indorsed on the back : “Henry F. Miller.” The other notes are like unto this, except as to amounts and time of maturity. The mortgage contained the provision — “If said sum or sums of money, or any part thereof, or any interest thereon, is not paid when the same is due, and if the taxes and assessments of every nature which are or may be assessed, and levied against said premises, or any part thereof, are not paid when the same ai’e by law made due and payable; then the whole of said sum or sums, and interest thereon, shall and by these presents become due and payable,” etc. By its terms, the first note did not mature until two years after its date ; and, as this action was begun before that time, we have the question whether it was prematurely brought. If the interest was payable annually, the default in the payment of the same makes the whole debt due, and entitles Miller to a foreclosure of his mortgage. As will be observed, the note contains no express provision for the annual payment of interest. The promise is to pay the principal and interest two years after date ; and the words, — “And interest from date at the rate of six per cent, per annum,” cannot be construed to mean that the interest should be paid yearly, but is only a measure for the calculation of interest on the note. In the absence of a specific promise to pay the interest at a different time from that fixed for the payment of the principal, the principal and interest both become due at the same time. Ramsdell v. Hulett, 50 Kan. 445, 31 Pac. 1092. The provision in the note, “ If interest be not paid annually, to become as principal and bear the same rate of interest,” is not a promise to pay annually. While it apparently gives the promisor an option to pay the interest annually, yet if he does not pay he is not deemed to be in default. The only consequence of the maker failing to take advantage of the privilege is that the interest will become principal and bear the same rate of interest. It did not give the payee any right or authority to enforce the collection of interest, or treat the entire indebtedness, as represented by all the notes, to be due and payable. Attention is called to Meyer v. Graeber (19 Kan. 165), where'there was a similar provision in the note, and the court held the interest to be payable annually. That holding, however, was based upon a provision of the mortgage which specifically provided that the interest was payable annually. The notes and mortgage were treated as a single contract, and the specific agreement in the mortgage that interest should be paid annually was given controlling force and effect. The mortgage in the present case contains no such provisions, nor any suggestion that the interest on the debt is payable annually. We therefore conclude that the action was prematurely brought, and that the demurrer to the petition of the plaintiff below should have been sustained. The judgment of the District Court will be reversed and the cause remanded for further proceedings.
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Allen, J. The plaintiff, Alonzo B. Cunningham, was employed as a railway news agent by the Union Railroad News Company, and traveled on the line of the Atchison, Topeka & Santa Fe Railroad between Kansas City and Albuquerque, New Mexico. The plaintiff was riding under a permit recognized by the conductors of the Railroad Company as entitling him to passage, which read as follows : “ The Railroad News Company to Conductors Atchison, Topeka & Santa Fe Railroad Company, trhins 3 and 4 Kansas City & Albuquerque Division. The bearer, A. B. Cunningham, whose signature is on the back hereof, is authorized by us to run on your division as News Agent until December 31, 1895, provided he complies with the rules and regulations of your company. Railroad News Company. Alfred Hamlin, Superintendent.” On the back of this was indorsed : “ Not transferable. I do hereby agree in consideration of being carried on the cars of said railroad company that I will assume all risk of accident of every ldnd that may occur to me on said railroad. A. B. Cunningham.” On the twenty-fifth of November, 1895, the plaintiff was riding on an east-bound train which collided with a freight train near the station of Shoemaker in New Mexico, whereby the car he was in was thrown from the track down a high embankment, causing serious injuries to him. The railroad was then in charge of the receivers appointed by the United States Circuit Court. The road was afterwards sold under foreclosure proceedings to certain persons who with their associates organized a new corporation for the purpose of operating the railroad. This action is prosecuted against the new organization to recover damages for the injuries •■so sustained. The right of the plaintiff to recover of the defendant is based on the terms of the decree of the federal court ordering the sale of the property, in which it was provided : “The purchaser or purchasers, his or their successors and assigns, shall, as part consideration and purchase price of the property purchased, and in addition to the sum bid, take the same and receive the deed therefor upon the express condition that he or they, or his or their successor or assigns, shall pay, satisfy and discharge any unpaid compensations which shall be allowed by the court to the receivers, and all indebtedness or obligations or liabilities which shall have been legally contracted or incurréd by the receivers before delivery of possession of the property sold, and also any indebtedness and liabilities contracted and incurred by said defendant railroad company in the operation of its railroad prior to the appointment of the receivers, which are prior in lien to said general mortgage, and payment whereof was provided for by the order of this court, dated January 10, 1894, and filed January 16, 1894, and which shall not be paid or satisfied, out of the income of the property in the hands of the receivers, upon the court adjudging the same to be prior in lien to said mortgage, and directing payment thereof, provided that suit be brought for the enforcement of such indebtedness , obligation or liability within the period allowed by the statute of limations of the State of Kansas for the commencement of such suit thereon after such indebtedness, obligations or liability was contracted -or arose.” The décree further provides for the retention by the 'Court of jurisdiction over the property for the purpose ■of enforcing these provisions of the decree. The answer denied generally the averments of the petition, •and specially denied that the defendant assumed any liability existing against the receivers, and alleged that the receivers had made a settlement with the defendant for the injuries for which he sued and had made full payment of the damages agreed on. To this the plaintiff replied that he had never made any such settlement, and that his signature to the release set up in the answer was obtained by fraud and misrepresentation and while he was not in his right mind. The action was tried and resulted in a verdict and judgment in favor of the plaintiff for $6250. The defendant seeks a reversal of this judgment. The principal controversy in the case is as to the liability of the present company for claims of this character which accrued during the management of the property while in the hands of the receivers. It is unnecessary to enter into any discussion of the question as to the liability of the defendant under the statute as a purchaser of a railroad under a mortgage foreclosure, and as, in effect merely, a reorganization of the old corporation. The terms of the decree under which the defendant purchased could hardly be made more clear, explicit, or comprehensive. The purchaser is required as a, part of the purchase price of the property, and m addition to the sum paid, to pay all liabilities incurred by the receivers before deiivery 0f possession of the property. The plaintiff’s claim is clearly a liability incurred by the receivers. The subsequent provisions of the decree with reference to liabilities incurred by the Railroad Company, which were prior in lien to the general mortgage under which a foreclosure was had, relate to a distinct class of claims. As to claims existing against the old railroad company the purchasers were only required to assume those which were prior in lien to the general mortgage, and payment of which was provided for by the prior order of the court. But as to obligations and liabilities incurred by the receivers the provisions of the decree, as we construe them, are general and include all claims similar to this as well as all obligations contracted in the operation of the road. The substance of this provision of the decree appears in the order confirming the sale and in the deed to the purchasers of the property, by the acceptance of which they are conclusively bound. It is contended that by the provisions of the decree reserving a right to retake and resell the property for the purpose of enforcing the obligation of the purchaser to discharge these liabilities, the procedure to be pursued by any one for any claim against the receivers is pointed out. This contention also is unsound. Under the federal statute the plaintiff had a right to sue the receivers in the state court without permission of the federal court. The obligation assumed by the purchasers is general. It is an obligation to pay. That obligation may be enforced by any court of competent jurisdiction. The contention that there is nothing in the record to show that the defendant had anything to do with any railroad in New Mexico is clearly without merit. There is abundant evidence to show that the receivers operated the line of railroad from Kansas City to Albuquerque. Nor is there any merit in the claim that the plaintiff was not a passenger, and that this was a mere accident, the risk of' which he assumed under the indorsement on his permit which he had signed. Just what arrangement for his transportation existed between the News Company and receivers the evidence fails to disclose, but it was such as was recognized to be valid. The claim that'this was a mere accident Band not the result of negligence is opposed by the rather convincing fact that two trains were moved in opposite directions on the same track at the same time; a freight train attempting to go west while a passenger train was going east on its regular time. The testimony with reference to the speed of the train was properly admitted, but quite unimportant. Much stress is laid on the admission and rejection of the testimony of the doctors with reference to the character and effects of the plaintiff’s injuries. The testimony concerning which complaints are made bore mainly on the validity of the alleged settlement made by the receivers on the twenty-ninth of November. The testimony shows that the plamtifi s leg was broken, his skull fractured, and that he was cut and bruised in many places. He was taken out of the car unconscious, and did not regain consciousness until he found himself in the hospital at Las "Vegas. From the testimony of the claim agent who made the settlement it is apparent that the principal concern of the plaintiff at that time was about remaining in the hospital where he could be taken care of. He says in his direct testimony “when it came to the matter of dollars and cents as to his injuries he did not seem to care. In fact, he said he did not want anything. All he wanted was to have proper care and that would be satisfactory to him.” Where such unseemly haste is made in obtaining settlements with parties who have sustained such serious injuries, and where the amount paidis so trifling and utterly disproportionate to any just compensation, it seems like wasting time to nicely 'discuss questions of evidence bearing on the plaintiff’s capacity to transact business. Taking the testimony offered by the defendant in its most favorable aspect, the settlement was made at such a time, under such conditions, and on such terms as condemn it as a fraud and imposition. The plaintiff was utterly helpless at the hospital, suffering from the injuries received but four days before. His main and almost only concern, according to the testimony of the claim agent, was with reference to his immediate needs in his helpless condition. The sum paid him was not demanded but rather suggested and urged on him by the over anxious claim agent. Whether the rulings on the testimony were right or wrong is wholly unimportant under the defendant’s own showing. It is claimed that there are many inconsistencies in the answers to the special questions. We have carefully examined all of them and find nothing to support the claim. Nor is there any merit in the contention that the jury were prejudiced. It would be very difficult to conceive a clearer case of liability than that established by the testimony. Considering the character of the injuries sustained the verdict does not appear excessive. It has been approved by the trial court and meets our approval. The judgment is affirmed.
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Johnston, J. O. P. Dickinson, apparently the owner of the Government title to the land in controversy, brought an action to recover the same against Joseph S. Bales, the grantee under a void tax title. The defense of Bales was adverse possession, and whether there was continuous adverse possession of the land for fifteen years was the only substantial dispute between the parties. It was determined in favor of Bales, and the main contention here is that the testimony does not sustain the finding of the jury. It appears that Bales purchased the land in 1885, and soon afterward took possession of the same, making substantial improvements of considerable value. He occupied the land about ten years prior to the commencement of this action, and, without doubt, his occupancy had all the essential elements of adverse possession. The trouble in the case arises as to the character of the possession of the grantors. To complete his defense, it was necessary to tack to his own the continuous adverse possession of his grantors from March 6, 1880. An attempted sale of the land was made by Greenwood County to J. B. Pierce, in 1879, and it is contended that he took possession of the land, and continued to exercise dominion over it until April 15, 1884, when he sold it to Boxanna E. Sutton, and that her possession continued until she sold the land to Bales, in 1885. Until Bales obtained the land in 1885, it was unbroken prairie, without fences, buildings, or improvements of any kind. The taxes on the land were paid by Pierce from 1879 .up to and including the year 1883. No taxes appear to have been paid by' Sutton, but the taxes for 1884 were subsequently paid by Bales. After Pierce received a deed from Greenwood county, he executed a mortgage upon the land. Soon after he purchased it, he went upon the land, and occasionally thereafter he went upon it up to the time of the sale to Sutton. He took parties to see the land, several times, and gave permission to a person to cut grass upon the same, but the grass, when cut, was moved off the premises. Sutton does not appear to have ever been upon the land, and, as we have seen, he paid no taxes thereon. The jury found that the actual possession of the land was taken by Pierce in 1879 ; and, in answer to the question as to what he did in taking actual possession, stated that he “paid taxes.” In answer to the question as to what Pierce ever did toward improving the land, or taking actual, exclusive and notorious possession of it, prior to May 1, they said : “Paid taxes, and gave permission to cut hay.” To the question as to what Roxanna E. Sutton did toward improving the land or taking actual or exclusive possession of it prior to May 1, 1885, they answered: “ Nothing, except offered the same for sale.” The jury were asked what she ever did toward taking actual possession of the land, and they answered : “Received deed from J. B. Pierce.” They were asked when Pierce took actual possession of the land, and what he did to take possession, and the answer to that question was : “ When deed was received and taxes paid.” It appears to us that the acts of Pierce and Sutton as disclosed by the testimony fell short of adverse possession; such possession as will diyest t|ie 0f ian¿_ Pierce went out from time to time and looked at the land, rode over it, and several times took persons out to see it; but these acts would be very little warning to an owner that another claimed the land or was asserting a title thereto adverse to his own. The land being open and unoccupied prairie, the fact that one or more persons went upon or over it would hardly indicate an attempt to found a hostile title by possession. One of the witnesses for Bales testified thg,t in that region such land was treated as a common. It was used by any one as a range, and those who wished went upon the land and cut grass. To constitute adverse possession it is not absolutely necessary, it is true, that there should be inclosure, buildings, or cultivation; but, considering the purposes for which the land is adapted, the possession must be actual, visible and exclusive. The acts done must be such as to give unequivocal notice of a claim to the land adverse to the claim of all others, and must be of such a character and so openly done that the real owner will be presumed to know that a possession adverse to his title has been taken. The acts of Pierce in occasionally going upon or driving over the land is not such notice ; and this was evidently the view of the jury. They did not include these acts in their answers to the several questions as to what was done by him toward taking or holding adverse possession. Indeed, they appear to have mainly based their finding of adverse possession upon the mere payment of taxes. In answer to the question what he did in taking actual possession, in one instance they stated that he paid taxes, another that he received the deed and paid the taxes, and in still another that he paid the taxes and gave permission to cut hay. It; is well settled that the payment of taxes alone does not constitute adverse possession, and is not of itself an evidence of ouster. It is some evidence of ownership, and may be considered in connection with acts asserting dominion and title to the land. Stockton v. Geissler, 43 Kan. 612, 23 Pac. 619. The taking of a deed is not sufficient to constitute adverse possession. It must be followed by actual possession - — that is, by such acts of dominion and use as are appropriate to the locality and character of the land.. It is true, that in one instance Bierce gave some one permis- ° sion to cut grass from the land, but the grass, when cut, was not stacked on the land; and this act was not sufficient under the circumstances to evince an intention of asserting ownership and possession. The cutting of hay upon uncultivated and uninclosed land was regarded as an important consideration in Guinn v. Spillman, (52 Kan. 496, 35 Pac. 13,) but there the party claiming the land had-leased a part of it from which to cut hay for a series of years, and large quantities of hay were stacked upon the premises and stood there as a visible mark of possession. This has been regarded as a border case in respect to the sufficiency of the acts of ownership and possession ; but, aside from the payment of the taxes .and the repeated cutting of grass and stacking of hay upon the premises, there was in that case the employment of persons to guard the land from trespass and to protect the timber on the land, and, in addition, the" cutting of timber, and the delivery of the wood so obtained to the claimant. All these acts and circumstances were deemed sufficient to make a prima facie case of adverse possession; but the acts of the claimant in the present case do not approach an actual, visible, notorious occupation, and therefore we are constrained to hold that the testimony is insufficient-.to sustain the verdict and judgment. Some objection is made to the authenticity of the secondary proof which plaintiff offered to establish his title. Record'.copies of the instruments of conveyance were introduced for that purpose. It ap pears, however, that no objections were made to .the authentication or the sufficiency of this evidence when it was offered and admitted. Aside from that, the fact that the plaintiff held the paper title appeared to be conceded by all the parties, and so the court instructed the jury that the only serious question of fact left for their determination was whether or not the defendant and his grantors had been in the open, visible, notorious and adverse possession of the land for the period of fifteen years before the commencement of the action. There is some claim, too, that there never had been a delivery of the deed made by the plaintiff’s immediate grantor, conveying the premises to him. We think that this inference is not warranted. It appears that he never had possession or control over any of the deeds in his chain of title in which he was “not a grantee.” This does not admit, however, that he never had the possession of the one in which he was grantee. The controverted question, and the only one tried in the court below, was the claimed adverse possession of the defendant, and the evidence in the record being insufficient to show adverse possession, it follows that the judgment of the District Court must be reversed and the cause remanded for further proceedings.
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Johnston, J. This was an action, brought on March 3, 1894, in behalf of Haskell County against the Haskell County Bank, which had been the public depository of the county, and also against certain sureties, to recover $12,011.25. At the same time, an attachment was issued, under which the property of the Bank was seized. On March 12, 1894, the Bank of Santa Fe obtained in Finney County a judgment against the Haskell County Bank for seven thousand dollars, and within a few days thereafter a transcript of the judgment was filed in Haskell County. Several executions were issued upon this judgment from the.District Court of Finney County, which wore placed in the hands of the sheriff of Haskell County while he held the custody of the attached property. - It is claimed that these executions were levied upon the attached property; but whether there was an actual levy is disputed, and the contention that the receipt of the writs by the officer while he held the custody of the property was sufficient to constitute a seizure is denied. The Bank of Santa Fe intervened in the cause and moved to discharge the attachment obtained by the county; but the trial court held that the Bank did not have such an interest as entitled it to contest the validity of the attachment. That ruling was brought to this court for review, and was reversed, with the direction to sustain the motion of the Bank to discharge the attached property. Bank of Santa Fe v. Haskell Co. Bank, 54 Kan. 375, 38 Pac. 485. When the mandate went down, the Bank of Santa Fe moved for a discharge of the property, and at the same time asked that the sheriff retain the possession of the property which had been seized under the execution issued out of the Finney County District Court. The court entered a formal order sustaining the motion to discharge the attachment, but directed the sheriff, who had been previously appointed as a receiver, to retain possession of the property until the further order of the court, and held the motion as to the disposition of the attached property for further consideration. After one continuance, the motion for the disposition of the property came on for hearing, and, upon the testimony offered, the court found that no levy of the executions issued upon the judgment of the Bank of Santa Fe had been made and ordered that the property should be returned to the person or persons from whom the sheriff had originally received it. Several grounds of er,ror are assigned, one of which is that the matter of the levy of the executions upon the personal property subject to the attachment was res adjudicata. In the earlier proceedings in the case the parties proceeded upon the theory that the execu tions liad been levied, and the point in controversy was whether such levy gave the execution creditor standing in court to contest the validity of the attachment. It is to be observed, however, that the inquiries upon the question were in the same proceeding, and that the first one was upon a motion . ,, . , , ,, m the case. As a general rule, the ° doctrine of res acljudicata is not applicable to motions; and we'do not think that the rulings of the court upon the early motion in the case precluded the parties from showing the actual facts as to the levy and the lien of the Bank of Santa Fe. Comm’rs of Lyon Co. v. Sergeant, 24 Kan. 572, and cases cited. If the executions issued upon the judgment of the Bank of Santa Fe were not levied upon the property, and if the receipt of the executions by the sheriff while he held the property under the order of attachment did not operate as a constructive levy upon the attached property, then fck0 Bank of Santa Fe had no standing in court, nor any right to question the regularity of the proceedings. The first execution, which appears to have been issued on the same day the judgment was rendered, was not produced, and the return made thereon is a matter of dispute between the parties. On the part of the plaintiff in error it is claimed that the sheriff indorsed on this writ that he held it subject to the levy made by him under the order of attachment; while the defendant in error denies that such an indorsement was made ; and the sheriff states that he kept no record of the executions received by him or of the disposition which he made of them. He admitted having received three or four executions, and copies of three of them were produced at the hearing. On the later execu tions, lie indorsed the time when he received the writ, and that he found no goods or chattels liable to satisfy the judgment. He testified that he never levied any of the executions on the property of the Haskell County Bank and never made any return showing that such a levy had been made. Assuming this to be true, we have the question whether the receipt of the writs by the sheriff operated as a constructive levy upon the property which he held under another writ. A majority of the court hold that something more is required, and that there must be some act of the officer professing or indicating his purpose to hold the property under the second or subsequent writs. The statute provides that goods and chattels shall be bound from the time they shall be seized in execution. Civil Code, § 444. ' There was no overt act of seizure, and, according to the return of the sheriff, there was no such mental act, or intention to levy or hold the property under the execution. He did not profess or assume control of the property under the writ, but, on the other hand, his return indicates that he did not intend to make any levy or to hold the property by virtue of the execution. From the return of the sheriff on the attachment writ, he had property subject to levy under the executions which were placed in his hands ; hence his returns are contradictory, and those made on the executions untruthful. We all agree that it was the duty of the sheriff to levy the executions 'upon the attached property, but a majority hold that the receipt of the writs and the indorsement of the receipt upon them do not constitute a levy, and that in such a case the execution creditor cannot hold the property, but must resort to his remedy against the officer. The writer is of the opinion that the sheriff, having seized the property upon attachment. and reduced it to possession, then had it in the custody of the law; and that the subsequent receipt of the other writs operated as a constructive levy upon the property, and no further actual seizure was required. In that provision of the Code relating to the matter of priority of executions, it is made the duty of the officer to indorse on every writ the time when he receives the same. When the executions were received by the sheriff, and he had indorsed thereon the time of receiving the same, the execution creditor acquired a lien on the property subject to the prior attachment lien. The sheriff could not defeat this lien, either by mistake or design, because the property having been reduced to his possession and in custodia legis, no other or further act of seizure was necessary. If another order of attachment had been placed in his hands after the receipt of the execution, would it be contended that the’ mere failure of the sheriff to indorse on the executions that a levy had been made would defeat the lien of the execution debtor or give priority to the later attachment? We have already held that where several writs against the same defendant are placed in the hands of an officer for service, the law, and not the discretion of the officer, fixes the priorities and determines the rights of the claimants; and that the officer cannot, by. writing a return upon a junior order, give' it priority over an earlier one which he then held in his possession. When parties have done what they can, and have placed the writs in the hands of the sheriff, the law comes in and determines the effect; and the officer cannot, either mistakenly or designedly, deprive parties of the rights or preferences which the law awards them. Larabee v. Parks, 43 Kan. 436, 23 Pac. 598; Railroad Co. v. Schwarzchild Co., 58 Kan. 90, 48 Pac. 591. In Freeman on Executions, 267, it is said : “When goods are held under one writ, they are also held under later writs that may come to the hands of the same officer. The mere receipt of a second execution operates as a levy on the property already in the officer’s hands under a former writ. No other nor further act of seizure is necessary.” ( See cases there cited ; 8 Encyc. of Pleading and Practice, 554, and cases cited.) The writer is therefore of opinion that, when the attachment was set aside, the Bank of Santa Fe held a lien upon the property in the custody of the officer, and that the same should have been sold to satisfy its judgment. An effort was made, however, to show, as a matter of fact, that a levy was actually made by the sheriff upon the first execution and a return of such levy indorsed thereon. Depositions containing testimony tending to establish this claim were offered in evidence, and rejected by the court. Such evidence was competent and material; for, if the execution was levied, the plaintiff in error was entitled to have the property subjected to the payment of its judgment. The depositions were excluded upon an objection that they were not on file one day before the hearing. The Code provides that “ every deposition intended to be read in evidence on the trial must be filed at least one day before the day of trial” (Civil Code, § 381) ; but this limitation applies to the trial of causes, and not to mere hearings on motions. As the depositions were offered upon the hearing of a motion, they should have been treated as the affidavits of the parties and received in evidence in support of the claim of the plaintiff in error. Hanna v. Barrett, 39 Kan. 446, 18 Pac. 497. , For this error in excluding testimony, the judgment will be reversed and the cause remanded for further proceedings.
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The opinion of the court was delivered by Valentine, J.: This was an action on a criminal recognizance. And while some of the proceedings on the part of plaintiff below (defendant in error) may not have been technically as exact as they might have been, yet we think no substantial error was committed by the court below. It is objected that the petition below did not state facts sufficient to constitute a cause of action. This objection was made for the first time in the court below by objecting to the introduction of any evidence under it. Such an objection made at such a time and in such manner .g neyer favore(J foy courts. (Mitchell v. Mihoan, 11 Kas. 617, 625, 626, and cases there cited.) Justice would be better subserved if the question of the sufficiency of the petition were always raised and determined before the commencement of the trial. Hence, where the question of the sufficiency of a petition is raised for the first time, and only by an objection to the introduction of any evidence under it, courts will always construe the allegations of the petition very liberally, so as to sustain the petition if it can be sustained; and if anything should intervene between the filing of the petition, and the final rendering of the judgment, which could by a fair and reasonable intendment be construed to cure the defective allegations of the petition, the courts will hold that such defective allegations are thereby cured. (See same case as above, and other cases there cited, and Irwin v. Paulett, 1 Kas. 418.) The only objection urged against the petition in this case is, that it does not in terms' allege that said recognizance was ever filed in the district court as required by law. (See Criminal Code, §§ 41, 64,144.) And therefore it is claimed that the petition does not show that said supposed recognizance ever became a record, or that it ever in fact became a recognizance; for, as is claimed, a recognizance is merely “an obligation of record.” Morrow v. The State, 5 Kas. 566; Gay v. The State, 7 Kas. 394, 402; The State v. Weatherwax, 12 Kas. 463, 465. The instrument sued on in this case was an obligation of the defendants below, in the form of a criminal recognizance, taken by a justice of the peace on a preliminary examination in a criminal proceeding requiring the appearance of the defendant Geo. W. Barkley at the next term of the district court to be held in Bourbon county, to answer to the charge of embezzlement. The petition designates this instrument as a “recognizance.” It, was in form a recognizance. And the petition further alleged that the said Barkley and his surety, the other defendant, George Patterson, were at said next term of the district court three times solemnly called, but came not, and made default, and thereby forfeited .their “recognizance.” Now according to the theory of the plaintiffs in error, (defendants below,) they could not have made default, or forfeited their “ recognizance,” if the instrument sued on had not at the time of the supposed default and forfeiture been filed in the district court, for in that case it would not have been a “record,” and therefore would not have been >a recognizance, and therefore could not have been forfeited as such. But the petition does allege that the defendants did make “default,” and did “forfeit their recognizance;” and therefore, if the theory of the defendants below is correct, the petition does allege inferentially and by implication that the instrument sued on had been filed in the district court, and had become a record, and a recognizance. This allegation would not of course have been considered sufficient if it had been attacked by a demurrer, of motion to make more definite and certain. But it'is certainly sufficient "under the circumstances of this case. It was cured by the evidence subsequently introduced, and by the findings and judgment of the court below. The evidence clearly shows that, not only the recognizance, but all the other papers connected with the preliminary examination, were duly filed in the district court before said default or forfeiture had occurred, and long before this suit was brought. It is doubtful however whether the theory of the defendants below is correct, and more doubtful whether any allegation of the filing of the recognizance is required. (Crim. Code, § 154.) But even if correct, and the allegation necessary, still the defective allegations of the petition were cured by the evidence, findings and judgment. The execution of the recognizance was not put in issue by any pleading verified by an affidavit, and therefore under § 108 of the civil code the execution of the recognizance must be taken as admitted. (Ingram v. The State, 10 Kas. 630, 636.) Whether the execution of the recognizance means, merely the execution of the same before the magistrate, or whether it means that and also the filing of the same in the district court, we need not now determine. Probably under the pleadings in this case judgment should have been rendered' for the plaintiff on the pleadings. It is claimed that there was a substantial variance in the proof and the allegations of the petition. The alleged variance is, that the petition alleges that “G. W. Barkley” made default in not complying with the condition of . . . r . , . his recognizance, while the proof shows that it was “ George Barkley ” who made the default. Now the petition alleges that “G. W. Barkley” as principal, and George Patterson as surety, executed the recognizance sued on, and that they made the default, the petition giving a copy of the recognizance in full. The record of the subsequent proceedings in this case shows that the defendant Barkley made his appearance in this case both under the name of “G. W. Barkley” and “George W. Barkley;” and the record of the default and forfeiture shows that “George Barkley” as principal, and George Patterson as surety, made the default. ■ And the recognizance is so described in said last-mentioned record, (the date, the amount, the name of the justice before whom the recognizance was taken, the parties thereto, and other matters descriptive thereof being given,) that there can be no possible doubt but that the persons who executed the recognizance, and who are now sued thereon, made the default charged against them. And all this may properly be shown, although slight differences in giving the name of some of the parties may occur in the different records. (Gay v. The State, 7 Kas. 394; O’Brien v. The People, 41 Ill. 456.) . But there are other reasons why the findings and judgment of the court below upon this particular matter should not be disturbed. The plaintiff alleged in its petition below that defendants made said default. The defendant Patterson did not in any manner deny this, xjp0n this point he simply alleged in his answer that there was no record of the default or forfeiture. Such an answer states no defense. It is not material in a suit upon a forfeited recognizance that it be shown that the default or forfeiture was ever in fact entered of record.. (Crim. Code, §154; Ingram v. The State, 10 Kas. 630.) The only material question in such a case is, whether a default was actually made or not. Of course, a record of every default should be made. (Crim. Code, § 152.) But so also should a record of every compliance with the recognizance be made. (Crim. Code, §138.) But still the mere failure on the part of the clerk to make such record, would hardly interfere with the substantial rights of any party. The defendant Barkley was in default in this case for want of an answer to the plaintiff’s petition. He therefore “asked and obtained leave of the court to file a similar answer to that filed for the defendant Patterson, and the same is [was] filed accordingly.” The remarks already made with reference to the answer of Patterson will equally apply to this answer of Barkley, for the two answers are precisely alike. But afterward Barkley filed another answer. He filed his second answer without any leave of the court, or consent of the plaintiff. It contained a general denial of all the allegations of the plaintiff’s petition. Whether the court below took any notice of this second answer or not, we cannot tell. Probably the court did not. But there is still another obstacle in the way of the plaintiff in error, which obstacle will not only reach to the question now under consideration, but will also reach to every question which we may hereafter discuss in this case. It J is not shown in any proper way that all the evi<jence that was submitted to the court below has been brought to this court. The record brought to this court is a transcript of the record of the proceedings of the court below. It is not a “case made” for the supreme court, nor a copy of any such “ case made.” And hence we can consider nothing therein contained except what properly belonged to or was made a part of the record of the proceedings of the court below. Now there is nothing in the record of the proceedings of the court below that shows that all the evidence has been preserved, or brought to this court. In the record brought to this court, with the other papers attached to the petition in error, we have the following: first, the proceedings which go into the record without any special order of the court; second, a bill of exceptions, ordered to be made a part of the record, and signed by the judge who tried the cause; third, then comes a certificate of the judge who tried the cause, who was merely a judge pro tem., not embodied in a bill of exceptions, not ordered to be made a part 0f the record, not a journal entry, not any proceeding of the court, as a court, which certifies “ that said bill of exceptions contains and refers to all the evidence offered on the trial of said action;” fourth, then comes the usual certificate of the clerk appended to such records. Such a certificate as the one signed by the judge is unknown to any practice of the law that we are acquainted with. (Bartlett v. Feeney, 11 Kas. 594.) And there is nothing except said certificate that pretends to show how much of the evidence was brought to this court. Now for the purpose of promoting justice, all courts are generally very liberal in construing irregular modes of getting cases into court, or irregular modes of presenting questions for the consideration of the • court. But we are not aware that any court has ever felt itself bound to resort to far-fetched presumptions for the purpose of defeating justice. Therefore, where parties are attempting to defeat justice by mere technicalities, they ought to be careful to have the record of the proceedings made so technically exact that everything favorable to themselves should be affirmatively shown. The special findings of the court we think are sufficient. It is true, the court might have entered into greater detail in stating the facts found, if it had chosen to do so. But as the plaintiffs in error did not point out any specific matters upon which they desired further or more definite findings to be made, and did not express any desire that the court should go into any greater detail in its findings, we think the findings as they were made are sufficient. Besides, as we have before said, it is probable that judgment should have been rendered for the plaintiff on the pleadings; but as the pleadings of both the plaintiff and the defendants were defective, we do not now wish to decide that question. The evidence was amply sufficient to sustain the findings and judgment of the court below. The recitals of the recognizance, which were admissions on the part of the defendants, were of themselves sufficient evidence, prima facie, to show that -Barkley was in legal custody when the recognizance was entered into. The judgment of the court below is affirmed. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: This was an action to recover damages for a physical injury. The only errors complained of are thus stated in brief of counsel for plaintiffs in error: “The court erred in charging the jury that the plaintiff was entitled to recover damages for mental suffering;” “the charge of the court did not present the law in a clear manner to the jury, but was vague and inexplicit, and tended to obscure the case rather than throw light upon it;” “the charge was inconsistent.” So far as these last two matters are concerned, it is not pointed out in the brief or elsewhere, wherein the charge was vague and inexplicit, or inconsistent. An examination of the charge does not suggest to us anything to sustain these claims, and the record fails to show that it contains all the instructions given, and as counsel have failed to assist us in the matter, we pass it without further consideration. As to the first objection, it is enough to say that the‘only exception to the charge was thus taken — “to the giving of which instructions, defendants then and there objected and excepted.” Now it is well settled, that under such an exception a single portion of the charge cannot be singled out, and for error in it the judgment be reversed; but the charge as a whole, and in its general scope, must be erroneous, or the exception is unavailing. K. P. Rly. Co. v. Nichols, 9 Kas. 236, 256; Sumner v. Blair, 9 Kas. 521; City of Atchison v. King, 9 Kas. 551; Furguson v. Graves, 12 Kas. 39. These being the only matters referred to by counsel in their brief, the judgment will be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: This was a petition for a new trial, brought after the term at which judgment was rendered, and on account of the alleged misconduct of the judge before whom the case was tried. As the district court refused to hear any testimony under this petition, the allegations in it must, for the purposes of this case, be taken as true; and the only question is, -whether upon those allegations there is any ground for relief. A brief statement of the facts as alleged will be necessary. “Before the March Term of the Saline statement of district court, the defendant in error, Donegan, facts' commenced an action against the plaintiff in error, Carlin, for an accounting between them as partners, and to recover the amount that might be found due from Carlin to Donegan. Said case was tried, and at' the March Term 1874, a judgment was entered therein against Carlin for the sum of $1,077.23, and costs. One of the issues submitted to a jury for trial was, what were the terms of the partnership agreement? Donegan claimed a certain writing to be the agreement. Carlin denied that it was executed for such purpose, and alleged in his answer that it did not contain, and was not intended to contain, the terms of the agreement. Testimony was introduced by both plaintiff and defendant as to the character and purpose of the writing, and the terms of their agreement. The jury returned a special verdict of the terms of the partnership — said verdict embracing the disputed writing, without change, and saying that the terms of the agreement were as contained in it. This verdict was allowed to stand by the court, and the rights of the defendant therein determined by it. After the term of court at which the trial was had, Carlin discovered, and learned, for the first time, that so much of the special verdict' of the jury as was made up of the disputed writing had beén inserted in the blank form for the verdict by the judge before the jury retired, and as they were about to retire, to deliberate upon their verdict. The jury added a few unimportant conditions, and brought in as their verdict the form given them by the judge with the writing. The action of the judge was secret, and unknown to the defendant or his attorneys until long afterward.” We have taken this statement from the.brief of counsel for plaintiff in error, as presenting in full the facts upon which he founds his claim for itself. It should also be stated that the petition alleges that the court instructed the jury that it was for them to determine what were the terms of the partnership agreement, and also instructed them “ specially to say for what purpose the writing set up in said petition was executed by said parties.” The form of the verdict as given is, “We the jury impanneled and sworn in the above entitled cause do upon our oaths find that the terms of the partnership between plaintiff and defendant were as shown by the writing set up in plaintiff’s petition, which writing is as follows, to-wit,” etc., (giving the writing.) It would seem from the petition that the judge prepared and handed to the jury more than the one form, for it alleges that “ the judge of said court on said trial prepared or caused to be prepared forms of verdict for the jury.” But the form we have above copied, and which was the one returned by the jury, is the only one recited, or whose character is given in the petition. If the judge simply prepared two forms, one answering to the case as the plaintiff claimed it, and the other to that as the defendant claimed it, and submitted the two to the jury, with instructions to determine between them, or if preparing but one form he instructed them that the insertion of■ negative words was all that was necessary for the appropriate opposite verdict, it would be difficult to see how either party were wronged. The case however might have been one in which it were easy to prepare a form for the verdict if in- favor of the one party, and impossible to prepare it if in favor of the other. Thus, if the claim of the one party was, that the terms of the partnership were expressed in a certain writing, it would be perfectly easy to prepare a form for the jury, if they found that to be the fact; while if the claim of the adverse party was, that the terms of the partnership were not so expressed, but rested in parol, and the evidence of that parol agreement was not harmonious, but conflicting and indefinite, it would be impossible for a court to determine beforehand what might be the conclusions of the jury upon this conflicting testimony, or prepare a form to express those conclusions. But whether either of these suggestions be true in this case, we can only conjecture, for the petition is silent. And surely, before misconduct is imputed to a judge on the trial of a cause, -the whole of his conduct in respect thereto should be disclosed. We might properly stop here. Indeed, this is as far as under the record we can legitimately carry a decision. We may be pardoned however a few suggestions beyond. Assuming, for the purpose of the argument, that it affirmatively appeared that the judge submitted only the one form, and that under the testimony it were perfectly easy to have submitted a form answering to the claim of the opposite party, and then could this action be maintained ? It is not pretended that he directed the jury to return this verdict. On the contrary, it is expressly stated that he charged the jury that it was for them to determine whether the writing contained' the partnership agreement. There is no intimation that the charge was other than fair and impartial. That which was handed to the jury was a mere form, was handed to them as such. It is often not merely the privilege but the duty of the court to assist the jury in placing the verdict in proper form, especially when as in this case a special verdict is asked. It does not appear that anything more was done in this case than simply discharge this duty. All that could possibly be urged .against it is, that from the simple form the jury might be led to think that the opinion of the court was in favor of such a verdict. Now while it is the province of the jury to settle all disputed questions of fact, and the duty of the judge in no way to trespass upon their functions, and to be careful not to cast his own judgment upon the facts into the scale to affect their conclusions, yet the simple fact that from some portion of his conduct an intimation may be derived as to his own convictions of the testimony, is not of itself sufficient to disturb a verdict. We do not mean to say, that the conduct of a judge may not be so partisan, his expressions or intimations of his own views so strong and decided, that though he in terms charges the jury that they are to determine the facts, and not he, yet in furtherance of justice a reviewing court ought to set the verdict aside. But this is no such case. It does not appear but that the judge was acting in the utmost good faith, with that clear impartiality which distinguishes the learned judge before whom this case was tried, and with a simple desire to assist the jury in the preparation of that most difficult of all verdicts, a special- verdict. And in such a case, something more thaD the mere handing of a form of a verdict to the jury must exist, before a new trial should be granted. The judgment will be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: The only question involved in this case, or rather the only question which we need consider, is, whether persons having all -the qualifications for electors as defined by § 1, article 5 of the constitution, except that they are women, have the right to vote at an election regularly held for the election of a school-district treasurer. This case differs widely from the case of Winans v. Williams, 5 Kansas, 227. While we have no statutory or constitutional provision authorizing women to vote for either state or county superintendent of public instruction, and while the constitution would seem impliedly at least to prohibit such a thing, yet we have statutory provisions which expressly authorize women to vote for school-district treasurers. Section 19, article 3, of the school law, provides that— “The inhabitants qualified to vote at a school meeting, lawfully assembled, shall have power, * * * 3. To choose a director, clerk and treasurer, who shall possess the qualifications of voters.” (Gen. Stat., 918.) And § 20 of the same article provides that— “The following persons shall be entitled to vote at any district meeting: First, All persons possessing the qualifications of electors, as defined by the congtitution of the state, and who shall be residents of the district at the time of offering to vote at said elections. Second, All white female persons over the age of twenty-one years, not subject to the disqualifications named in section second, article fifth, of the constitution of the state, and who shall be residents of the district at the time of offering to vote.”, (Gen. Stat., 919.) But it is claimed that the second subdivision of said § 20, of the school law, is unconstitutional and void, as being in contravention of § 1, ai’t. 5, of the constitution, which reads as follows: “ Every white male person, of twenty-one years and upward, belonging to either of the following classes, who shall have resided in Kansas six months next preceding any election, and in the township or ward in which he offers to vote at least thirty days next preceding such election, shall be deemed a qualified elector: First, Citizens of the United States. Second, Persons of foreign birth who shall have declared their intention to become citizens conformably to the laws of the Uixited States on the subject of naturalization.” Now does § 1, art. 5, of the constitution, have any application to the election of school-district tx’easurers ? The constitution provides for two, and only two, elections, to be held by the people, to-wit, gexxeral elections and township elec tions. (Const., art. 4, § 2.) And it does not anywhere even mention school-district elections or meetings. It provides for, or at least recognizes, the election of various officers: First, all the state officers provided for by the constitution, to-wit, the governor, lieutenant governor, secretary of state, auditor, treasurer, attorney-general and superintendent of public instruction; (Const., art. 1, §§ 1, 2,14.) Second, members of the legislature; (art. 2, §§2, 4, 5, 8, 9, 13.) Third, judges of the supreme court; (art. 3, §§ 2, 11.) Fourth, judges of the district courts; (art. 3, §§ 5,11.) Fifth, clerks •of the district courts; (art. 3, § 7.) Sixth, probate judges> (art. 3, §§ 8, 11.) Seventh, justices of the peace; (art. 3, §§ 9, 11.) Eighth, county superintendent of public instruction; (art. 6, §1.) Ninth, township officers; (art. 9, §4.) But the constitution does not anywhere even mention the election of any school-district officer. The constitution does not require that all the offices which it creates or recognizes should be filled by an election of the electors mentioned in § 1, article 5 of the constitution, or even by an election at all. For instance, the clerk and reporter of the supreme court are appointed by the judges; (art. 3j § 4;) a judge pro tern, of the district court is elected by the bar; (art. 3, § 20;) trustees of the public benevolent institutions are appointed by the governor; (art. 7, § 1;) directors of the penitentiary are appointed or elected as prescribed by law; (art. 7, § 2;) militia officers are also appointed or elected as provided by law; (art. 8, § 3;) and vacancies in the various offices are filled in various ways, generally by appointment; (art. 1, §§ 11,13,14; art. 2, § 19; art. 3, § 11; art. 7, § 3.) And the constitution itself specifically provides that all officers whose election or appointment is not provided for in the constitution shall be elected or appointed as may be prescribed by law. Thus, § 19, art. 2, of the constitution, provides that, “It [the legislature] shall have the power to provide for the election or appointment of all officers, and the filling of all vacancies not otherwise provided for in this constitution;” and § 1, article 15, provides that, “All officei’s whose election or appointment is not oth erwise provided for, shall be chosen or appointed as maybe prescribed by law.” Now, as we have before stated, there is no school-district election or meeting provided for in the constitution; there is no provision as to how school-district officers shall be elected, appointed, or chosen; and we suppose no one will claim that they are, by the terms of the constitution, to be elected at either of the elections provided for in the constitution; hence it would seem that the legislature would have full and complete power in the matter; that the legislature might provide for the election or appointment of school-district officers as it should choose, when it should choose, in the manner it should choose, and by whom it should choose. This would follow even if § 1 of article 5 of the constitution were by its terms capable of being made applicable to school-district elections. But said section cannot be made applicable to such elections except by a change of its terms. If it applies in its present form, then every person who is in other respects qualified, and who has resided “in the township ■* * * in which he offers to vote at least thirty days next preceding such election, shall be deemed a qualified elector.” That is, a legal voter of any school district in any township would be'a legal voter of every other school district in that township. In every school district of that township he could certainly swear that he was a legal elector “in the township in which he offers to vote.” And if said section applies, then this right to vote in every school district in the township in which an elector resides, is a constitutional right which cannot be abridged by the legislature, or by any other power except the entire people of the state by way of amendment to the constitution. Probably nearly every township in the state contains more than one school district. In the county from which this case comes there are seventy-eight school districts, and only fourteen townships. In many of the counties the proportion of school districts to the number of townships is much greater. For instance, in Crawford county there are one hundred school districts, and only nine townships. Now, if § 1 of article 5 of the constitution does not apply to school-district elections, then what is there to prevent the legislature from conferring the right of suffrage in school-district elections upon women?. There is nothing in the nature of things, or in the nature of government, which 'would prevent it. Women are members of society, members of the great body politic, citizens, as much as men, with the same natural rights, united with men in the same common destiny, and are capable of receiving and exercising whatever of political rights may be conferred upon them. We must answer the main question involved in this case in the affirmative; and therefore the judgment of the court below must be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: This was an action in the nature of an action of ejectment, brought by Cynthia Jackson and others against George F. Latta. The plaintiffs claim as heirs of the original' patentee, Thomas Jackson. The defendant claims under a sheriff’s deed, executed June 13th 1859, to Asa Hairgrove, on a supposed judgment rendered in favor of said Hairgrove and against said Thomas Jackson and others. On the trial in the court below, after the plaintiffs had introduced their evidence and rested their case, the defendant introduced said sheriff’s deed in evidence, showing a regular chain of title from Hairgrove to himself. The sheriff’s deed was of course sufficient evidence, prima facie, to show that the title to the property in controversy had passed from Jackson to Hairgrove. (Ogden v. Walters, 12 Kas. 292, and cases there cited.) The plaintiffs then introduced the record of the proceedings upon which said sheriff’s deed is founded. No objection was made to the introduction of this record. No claim was made that it was not the whole of the record, and a true record of each and all of the proceedings had in the case of “Hairgrove against Thomas Jackson and others,” which constitutes the foundation for the defendant’s sheriff’s deed. Hence, if this record should be defective in any essential and material particular, the sheriff’s deed founded thereon must be void. Now gaid record seems to show that no judgment was ever entered of record in said case of “Hairgrove against Jackson and others.” And as judgments can be proved only by a record, it would seem to show that no such judgment was ever rendered. There is no record of any such judgment, and hence, for the purpose of the case, we are bound to say that no such judgment was ever rendered. And there being no judgment, said sheriff’s deed of course is void. It cannot exist without having a judgment as a foundation. It is also claimed by the plaintiffs that said sheriff’s deed is void for other reasons, but we do not think that the claim is tenable. What answer the defendant would make to the different claims of the plaintiffs, we are a loss to know, for the defendant has filed no brief, nor made any oral argument in this court. We should think from the record brought to this court that a judgment had in fact been rendered in the said case of “Hairgrove against Jackson and others,” but that it had never been entered of record on the journals ^ cour£_ think the evidence furnished by the record itself strongly proves this to be true. And if we are correct in all this, it would be an easy matter, ■in a proper proceeding, and with proper notice to all parties interested, to have the judgment that was actually rendered entered of record, nunc pro tunc. The verdict of the jury, and the paper signed by the judge, show what the judgment actually rendered but not entered was. And if such judg ment was entered mino pro tumo, it would probably uphold said 'sheriff’s deed, not only as against these plaintiffs who merely claim as heirs of said Thomas Jackson, but as against others also, for the defendant and his grantors have been continuously in possession of the property for many years, their possession commencing before the death of said Thomas Jackson. The judgment of the court, below is reversed, and cause remanded for a new trial. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: The defendant in error, as plaintiff, brought his action in the district court of Labette county, alleging that Hamlyn the defendant had converted certain personal property belonging to plaintiff, and asking judgment for its value. The defendant answered that the plaintiff, being a judgment-debtor in sundry cases, had requested him to become surety on a stay of execution upon such judgments, and that he had so done; that to indemnify him plaintiff had given him a chattel mortgage upon the property described in the petition, a copy of which mortgage.was attached to the answer; that, as authorized in said instrument, he had sold some of the goods and applied the proceeds in payment of said judgments; that he had paid on said judgments more than he had received from, the sale of the goods; and finally, that the plaintiff was indebted to him in sundry matters. A-general denial was filed for reply. The case was referred to a referee, who made his report, with a finding of facts, and conclusions of law. The testimony is not preserved. A motion was made in the district court to set aside the report of the referee, because “ not sustained by sufficient evidence, and contrary to law.” This motion was overruled and exceptions duly taken. The referee finds, among other things, that the chattel mortgage set forth in the answer was executed as alleged, that the plaintiff was a judgment-debtor, and the defendant became security for stay of execution as stated. He did not find that those judg merits had been paid, and did find that the defendant had not realized enough from the goods to protect himself. Turning to the mortgage, we find that it- expressly gives to Hamlyn the exclusive control of the goods, the sale of them, and the handling of the proceeds thereof, until he is fully repaid, or otherwise indemnified. Indeed, by our statute, in the absence of stipulations in the instrument to the contrary, Hamlyn would have had the legal title and right of possession. (Gen. Stat. p. 585, §15.) No action therefore could be maintained against him for the conversion of the goods, or for the value of any portion of them, until he had been fully repaid or indemnified, either by a sale of the goods or otherwise. The judgment' of the district court will therefore be reversed, and the case remanded with instructions to sustain the motion to set aside the report of the referee. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: This was an action brought by C. & G. Cooper & Co., .against C. M. Condon and various other persons, for the purpose of recovering a personal judgment against D. S. Wood and B. Edwards, for the amount of three promissory notes given by Wood and Edwards to the plaintiffs, and for the purpose of foreclosing a mortgage on certain real estate given by Wood and wife to the plaintiffs to secure the payment of said notes, and of having their (the plaintiffs’) lien on said real estate' declared prior to Condon’s lien, and to the liens of all the other defendants. The action was commenced in the district court of Labette county, on August 27th 1873. On November 7th following, the plaintiffs filed in said court a petition, affidavit, and a paper in the form of ¿ bond, for the purpose of removing the case from the district court of Labette county to the United States circuit court. The application was informal and insufficient, for reasons not necessary now to state. Even the plaintiffs themselves seem to have treated the application as insufficient; for afterward they filed a supplemental petition in the case, changing very much their original cause of action, making two new parties, asked for and obtained a temporary injunction against one of these new parties, made motions in the case with regard to a certain fund which had just been created, filed a reply to an answer of one of said new parties, and on March 7th, 1874, filed a new affidavit and a new bond for the removal of the case to the United States circuit court. The hearing of the application for said removal was then postponed until the 20th of said March. Before that day, and oh the 9th of said March, the defendant Condon took judgment against the plaintiffs in their absence, and without any notice to them or their attorneys. Of course, the court below erred in permitting Condon to do this; and it now remains to be seen whether the error was material and substantial. Said judgment in effect was, that Condon’s lien on said real estate was prior to that of the plaintiffs. On March 20th said application for removal was overruled, and we think rightly so. There were several irregularities in the application. For instance, the plaintiffs did not “make and file” the kind of affidavit required by law. They made the application under the act of Congress of May 2d 1867; (14 U. S. S’tat. at Large, 559.) That act authorizes the removal of a case by the plaintiff from a state court into the United States circuit court only where “ he will make and file, in such state court, an affidavit stating that he has reason to and does believe that, from prejudice or local interest, he will not be able to obtain justice in such state court.” In the present case the affidavit was made and filed by one L. W. K., who says in his affidavit that he is “the attorney and agent of the plaintiffs;” that he himself, (not the plaintiffs, nor either of them,) “ has reason to and does believe that from prejudice and local influence the said plaintiffs will not be able to obtain justice in the state court.” He does not state, nor is it anywhere shown, why the plaintiffs, or some' one of them, did not make the affidavit; nor is it shown whether they have any reason to believe or do believe that they could not obtain justice in such state court. The affidavit shows that it is the attorney and agent of the plaintiffs who has reason to and does believe this. There is no authority given in the statute for a plaintiff to. swear by his attorney or agent; nor is there any authority given for his attorney or agent to “make and file” the affidavit. Nor under the statute is the attorney’s or agent’s belief material. We do not know that there ever has been any direct adjudication upon this exact question now under consideration by any court of last resort. It was once however decided by Judges Dillon and Dundy of the United States circuit court, that the plaintiff’s attorney could not make the affidavit. (Sands v. Smith, 1 Dillon, 298, note. See also, Dodge v. N. W. U. Packet Co., 13 Minn. 458.) We do not think that the affidavit in this case was sufficient. And we do not think that the state courts are bound to resort to extraordinarily liberal construction for the purpose of ousting themselves of the jurisdiction of cases. After, said application for removal was overruled, the plaintiffs moved the court to vacate and set aside the judgment rendered on March 9th in favor of Condon. This motion was overruled on April 4th. Said judgment, as we have already stated, was merely that Condon’s lien on the premises in controversy was prior to the plaintiffs’ lien. No other or different judgment could have been rendered upon the pleadings in the case. Condon set up in his answer new matter, showing that his lien was prior to that of the plaintiffs; and the plaintiffs did not file any reply thereto, controverting the allegations of said answer. Hence the answer setting up new matter must be taken as true. (Civil Code, § 128.) And hence, if the plaintiffs’ motion had been sustained, and the judgment set aside and vacated, the court would have been bound to again render the same judgment upon the pleadings, unless the plaintiffs could have got leave to file a reply. The plaintiffs were in default for want of a reply when the judgment was rendered, and they gave no reason to the court for their default, except that they had thought that they had filed a reply. They did not, when they made their motion, nor at any other time, offer to file a reply, or ask leave of the court to file a reply. They stated that they had a defense to Condon's answer, and that the answer was a sham; but they did not state what their defense was, nor why nor how Condon's answer was a sham. They did not deny the truth of the facts alleged in the answer; and a great many of them were unquestionably true. If said judgment had never been rendered; if the application of the plaintiffs had been made for leave to file a reply, instead of to vacate said judgment; and if they had made no further, or better showing than they did on this application, the court would not have erred in refusing to grant them leave to file a reply, or at most it would not have committed an error sufficient to authorize a reversal of its rulings. When the plaintiffs moved to set aside said judgment, they should have shown what their defense to said answer was, what portions (if any) of the answer they controverted, why they were in default, and should have offered to file a reply upon the condition that the judgment were set aside. For, as the pleadings then were, if the court had granted their motion to vacate the judgment, the court would then immediately have rendered the same judgment upon the pleadings. On the same day that this motion was overruled, (but whether before, or after, is not shown,) the action as between the plaintiffs and the other defendants was tried. And on this trial it was shown that, even if the plaintiffs had filed a reply, and tried their case as between themselves and Con-don, the same judgment should have been l’endered. In any manner in which we may view the case, we do not think that the error of the district court in rendering the Condon judgment at the time it did was or is now such a material error as will require a reversal of the judgment. On the said trial between the plaintiffs and the other defendants the plaintiffs obtained the personal judgment against Wood and Edwards which'they prayed for in their petition. They also obtained judgment against all the defendants, except Condon, Doty, and Avise & Co., that their lien was the prior lien on the premises. They in fact obtained everything they asked for, except that the court rendered judgment that the liens of Condon, Doty, and Avise & Co. were prior to theirs, and of this last ruling they now complain. The facts of the case were substantially as follows: Originally Macon, Krell and Conwell owned Block No. 13 in Oswego, Labette county. On January 10th 1870, Macon and Krell gave to Cooper & Co. their two promissory notes, for $740.25 and $775.50, due in six and nine months, respectively. On March 1st 1870, Macon and Krell executed a trust-deed for said premises to one C. F. Drake, for the purpose of securing the payment of said notes. The trust-deed does not purport to secure the debt evidenced by the notes. On January 10th 1871, Macon, Krell, and Con-well mortgaged said property to Condon to secure the payment of three promissory notes held by Condon against themselves for the aggregate amount of $1809.41. On March 14th 1871, Macon and Krell mortgaged said property to Emmert Doty to secure the payment of a certain note for $350 held by' Doty against themselves. Afterward, probably about December- 26th 1871, Macon, Krell, and Conwell sold and conveyed said property to David S. Wood, and Cooper & Co. surrendered to Wood the said notes of Macon and Krell to themselves, and took in their stead three other notes executed by Wood and one B. Edwards to themselves, dated December 26th 1871, one for $300, and the other two each for $713.63, and due in substantially eight, twelve and eighteen months; and Wood and wife executed a mortgage on said property to Cooper & Co. dated December 26th 1871, acknowledged April 27th 1872, and recorded August 27th 1873, “to secure the payment of the sum of $1727.27,” * * * “according to the terms of” said three promissory notes. On February 3d 1872, Wood mortgaged said property to Avise & Co. to secure the payment of a debt evidenced by a certain note held by Avise & Co. against Wood. Said mortgage was recorded February 17th 1872. It is unnecessary for us to mention the claims of the other defendants; for, as against them, the court found and ren dered judgment in favor of Cooper & Co. We think that the judgment of the court below, that the liens of Condon, Doty, and Avise & Co. are prior to that of Cooper & Co. is correct. The only ground upon which Cooper & Co. claim that their lien is prior to those of- Condon, Doty, and Avise &- Co., is, that they have a right to date the origin of their lien back to the execution of the trust-deed from Macon and Krell to Drake, which is prior to the existence of all the other liens. But, as we have said before, that trust-deed was executed merely to secure the payment of two certain promissory notes, and Cooper & Co. had no possible interest in said notes when they commenced this suit. They had surrendered them long before the commencement of this action. The notes were probably canceled and extinguished when they were surrendered; but if not, still the plaintiffs had no interest in them. The trust-deed was merely an incident to the notes, and followed them. Whoever at any time owned the notes, owned the trust-deed; and if the notes were at any time extinguished, the trust-deed was also and necessarily extinguished. We suppose that where a mortgage is given to secure the payment of a particular debt, the mortgage is not exhausted until the debt is paid or canceled, although the debt may in the meantime be evidenced by several different promissory notes. In fact, wherever a mortgage is given to secure the performance of any particular act, the mortgage will not be exhausted until that particular' act is performed, or until the performance thereof is excused by some subsequent transaction. But that is not this case. It was not the debt, aside from the notes, that was secured by said trust-deed; but it was merely the debt as evidenced by said promissory notes that was secured. The intention of the parties must always govern in transactions of this kind; and evidently, the intention of the parties, from the language of the trust-deed, was merely to secure those notes; and then, afterward it was clearly the intention of the parties to divest Cooper & Co. of all property or interest in the notes. And clearly, when Cooper & Co. parted with their interest in the notes, they parted with the auxiliary security connected with the notes. The lien of the trust-deed followed the notes, and did not remain with Cooper & Co. The judgment of the court below must be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: This was an action of replevin, brought by the plaintiff in error, plaintiff below, against the defendant, a special constable. It was first tried before a justice of the peace, and then on appeal in the district court. On both trials judgment was rendered against the plaintiff. The evidence was briefly to this effect — that the property belonged to the plaintiff, and that it was taken by the defendant upon an execution issued by a justice of the peace. The judgment was in favor of John M. Hatfield, and against J. C. Price, C. H. Norton, E. L. Osborn, and J. W. Borton, officers of the Wilton Town Company. The execution was as follows : “To G. 8. Humphrey, Special Constable: “ You are commanded to take into your possession enough of the personal property of the Wilton Town Company to satisfy a judgment of $2.55, together with all costs that have or may accrue in a case wherein John M. Hatfield was plaintiff, and C. H. Norton and J. W. Borton, officers of the Wilton Town Company, defendants, rendered this 20th day of February, 1874, before Hiram Bersie, a justice of the peace in and for Lane township, Greenwood county, Kansas. Make legal service and due return according to law. Dated this 3d day of March. • Hiram Bersie, J. P.” This is one of those petty cases which never ought to be brought to this court, one in which the principal matter in interest is now the costs; and one in which it is doubtful whether strict rules of law ought to be enforced in the construction of the judgment and process of a justice .of the peace, or great allowance made for his ignorance of legal phrase, for the purpose of giving effect to the probable intention of the magistrate. For it cannot be doubted, that an officer is not protected in seizing the property of A. under an execution which recites only a judgment against B., and is issued upon a judgment only against B., notwithstanding it commands him to seize the property of A. So that if this judgment was really against the officers of the Town Com pany as individuals, it furnished no basis for an execution against the property of the company; and an execution reciting such judgment is no protection to the officer in making this levy. On the other hand, if the claim sued on was one against the company, the service made upon the company, the defense made- by the company, and the judgment in fact rendered by the justice against the company, a misnomer of the company in the judgment, or a misrecitation of the name under which it should have been sued, ought not to vitiate the proceedings^ Great allowance often has to be made in the proceedings of these officers, for their ignorance of legal phraseology, and their want of familiarity with the requirements of judicial proceedings, so that if there can be gathered from the record what the magistrate intended to do, and decide, and there is that which, however irregularly and inartificially prepared, can be construed into an expression of that intention, the record will be upheld as a sufficient record of the intended act and decision. With some hesitation we are constrained to sustain the ruling of the district court. The fact that the execution commands the officer to levy upon the property of the company, is evidence that it was the party against whom the proceedings were really had, for it is against all probability that upon a judgment against one party an officer should be directed to seize the property of another. Again, if the proceedings were against certain individuals, it would be strange that any description other than their names should be used, while the language actually used is, in many states, the appropriate description of a corporation. A county is in this state sued as the “Board of county commissioners of the county of --.” (Gen. Stat. p. 254, § 5.) Again, the parties' have omitted to bring before us the record and papers of the case before the justice, and it may well bé that that record and those papers would tend to make clear what is now doubtful as to the party against whom the proceedings were had, as was the case in Goodsell v. Wheeler, 34 Conn. 485. But finally and chiefly, the execution does not recite any judg ment. It commands the officer to seize the property of the cbmpany to satisfy a judgment rendered in a certain case, but does not declare against whom the judgment was rendered. It is true, the company is not stated as one of the parties, plaintiff or defendant, but it may be that the parties named-were the original parties, and though the company was subsequently made a party, yet the justice in obedience or supposed obedience to § 117 of the civil code, which declares that “the title of a cause shall not be changed in any of its stages,” continued to describe the action by the names of the original parties. Of course, if the execution were entirely regular upon its face, and recited a judgment against the company, or even recited a judgment in a case in which the company was a party, without specifying against whom it was rendered, it would be protection to the officer, and replevin would not lie. Westenberger v. Wheaton, 8 Kas. 169. The judgment will be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: This was an action on a judgment rendered in the circuit court of Kane county, Illinois. Said judgment was rendered in the spring of 1872, upon two notes executed in March 1859. Attached to each note was a warrant of attorney authorizing “ Charles Wheaton, Esq., or any other attorney of any court of record,” to enter appearance, waive process, and confess judgment. Upon these warrants, and without any service of process, or other appearance, judgment was entered in vacation. It is insisted that this judgment having been entered in vacation, was a nullity, and Mifflin v. Stalker, 4 Kas. 283, is cited as authority therefor. But that case simply decides as to the practice in this state, and the authority to enter judgments in our courts at other than the regular terms. ■ And the question here is, not whether such judgment would be valid, if entered in this state, but was it valid in Illinois, where it was entered? French v. Pease, 10 Kas. 54. Now, this court will take judicial knowledge of the constitution of the state of Illinois, so far as this question is involved. Butcher v. Bank of Brownsville, 2 Kas. 70. And by that constitution we find that the circuit court is one of general original jurisdiction. Being a court of general jurisdiction, the presumption, is in favor of the authority which it assumed to exercise. Though the mode of procedure be different from that established in this state, yet it will be presumed to be in accordance with that authorized by the statutes of the state in which it was rendered. In 2 Am. Lead. Cases, 5th ed., p. 647, it is said that, “ it is obviously essential to the effectual operation of the design of the con-; stitution, that the records of the judgments of other states, duly authenticated under the act of congress, should not merely prove themselves, but give rise to a presumption that the court possessed the authority which it assumed to exercise” — and many authorities from different states are cited in support of the proposition. And again it adds: “The presumption, Omnia rite acta, will accordingly hold good until repelled, and the burden of proof is on him by whom a record, duly authenticated, and which appears to be regular, is impugned.” So that in the absence of any evidence to the contrary, the presumption would be that a judgment entered in vacation was valid, according to the laws of Illinois. But we are not left to a presumption. In Dunham v. Brown, 24 Ill. 93, we find such a mode of procedure upheld by the supreme court of that state. . Again, it is urged that the warrant of attorney authorizes “Charles Wheaton, or any other attorney of any court of record,” to appear and confess. And the record shows that one W. J. Brown appeared and confessed, and that there is no evidence that he was an attorney of any court, and he signes himself, “attorney-in-fact” for defendant. We suppose the designation was correct, for one authorized by such a warrant of attorney is an attorney-in-fact; and in the recital of the judgment, it reads, “that the plaintiff appeared by T. C. Mooi’e his attorney, and the defendant, by W. J. Brown his attorney.” This recital is evidence prima facie at least, that both Moore and Brown were attorneys off the court in which the judgment was entered. But passing these considerations, it was for the defendant, upon the principles heretofore stated, to overthrow the presumption in favor of this judgment by showing if he could that W. J. Brown was not an attorney of a court of record. It is useless to inquire as to the cir cumstances under which the judgment of the court of a sister state can be impeached, for here there was no testimony tending to impeach it. The testimony of Dodge, that he never employed Brown, or authorized him to appear and confess judgment, that he was never served with process, etc., is wholly immaterial. He does not deny the execution of the warrant of attorney, or question its validity; and all further matters, except perhaps whether Brown was an attorney of a court of record, are questions of law. One other question remains. Counsel contends that no action can be maintained on this judgment because of § 1 of ch. 87, laws of 1870, which among other things, provides: “And no action shall be maintained in this state, or any judgment or decree rendered in another state or country against a resident of this state, where the cause of action upon which such judgment or decree was rendered could not have been maintained in this state at the time the action thereon was commenced in such other state or country by reason of lapse of time.” Of the applicability of this statute there can be no question. The notes were more than twelve years past due, when the proceedings were commenced in the circuit court of Kane county; and the only testimony, that of Dodge himself, showed that he had been a resident of this state for the last thirteen years, and had not been back to Illinois since 1859. But a statute in all essential particulars exactly like this has been before the supreme court of the United States, and declared unconstitutional and void, as conflicting with § 1 of art. 4 of the federal constitution, which ordains that “ full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” The statute which was before that court was a statute of Mississippi, and in these words: “No action shall be maintained on any judgment or decree rendered by any court without this state, against any person who at the time of the commencement of the action in which such judgment or decree was or shall be rendered was or shall be a resident of this state, in any case where the cause of action would have been barred by any act of limitation of this state, if such suit had been brought therein.” Christmas v. Russell, 5 Wall. 290. The similarity of the statutes is obvious, and the.decision of that court conclusive upon the question. There being no other question in the case, the judgment will be affirmed. Kingman, C. J., concurring.
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The opinion of the court was delivered by Brewer, J.: This was an action of replevin, to recover possession of an organ; and the principal question was, as to the title to the property. The testimony of the plaintiff showed that the organ had belonged to him, and had been placed in the possession of one McNulty under and by virtue of a conditional sale. The terms of this contract were as follows: McNulty paid $25 down, and gave seven notes of $25 each. On the margin of each note was written an agreement as follows: “ It is hereby agreed between the maker of this note and A. Sumner, that the organ No. 42,914, for the use of which to the maturity thereof this note is given, is and shall remain the property of A. Sumner, and that in default of payment thereof said organ shall be returned to said Sumner, his agent or attorney.” It appeared that the $25 cash was paid upon the same agreement, and that none of the notes had been paid. Demand was duly proved. On the part of the defendant it was shown that he bought the organ of McNulty, and knew nothing of the agreement between McNulty and plaintiff. All the testimony is preserved in the bill of exceptions. Upon this testimony the court charged as follows: “The question for you to decide is, whether McFarlan knew the contract between McNulty and Sumner. If you believe that McFarlan did know of such contract, you must find for the plaintiff. If he did not, you must find for the defendant.” In this instruction the court'erred. The contract between Sumner and McNulty was a valid one, and by it no title passed to the latter until the payment of these notes. Having no title, he could convey none; and the mere fact of his possession gave him no power to pass title as against plaintiff. See 1 Parsons on Contr. p. 449, and cases cited in notes. The fact that McFarlan was ignorant of Sumner’s title, will not defeat it. For possession, though prima faoie evidence of title, is only prima faoie, and subject to be overthrown by other testimony. And to acquire title, purchase must be made from the owner, or one authorized to sell. * Neither the statute of frauds, (Gen. Stat. 504, §§ 3 and 4,) nor the chattel-mortgage act, (Gen. Stat. 584, § 9,) helps the defendant; for § 3 refers to a sale unaccompanied by possession, and § 4 to a loan, with possession continued for five years; and there was no transfer of title, with chattel-mortgage to secure the price, but simply a conditional sale, with the condition unperformed. The judgment must be reversed, and the case remanded with instructions to grant a new trial. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: This was an action brought by Butler against McMillen and the other' county officers, to enjoin said officers from moving their respective offices from the town of Osage Mission to the town of Erie, Neosho county, pending á certain suit in the supreme court. The petition below states in substance that Butler, the plaintiff below, “is a resident of the town of Osage Mission, and a tax-payer, a citizen and elector of said county of Neosho; that Butler had previously commenced an action in the district court -of said county against said McMillen, county clerk of said county, to perpetually enjoin him from moving his office from said town of Osage Mission to said town of Erie; that a temporary injunction was granted in that case; that the case was finally tried upon its merits; that Butler was defeated in the action, the judgment therein being rendered against Butler and in favor of McMillen, and deciding that Erie was the county-seat of said county; that Butler then took the case to the supreme court, where it is (at the com mencement of this suit) now pending; that the co-defendants of said McMillen are privies in law to him, and as such are bound by the pendency of said temporary injunction;” “that each and all of said defendants are bound to take notice of the pendency of said proceedings, and the appeal therein to the supreme court;” and Butler thereupon prays in this suit for an injunction restraining all the defendants except McMillen from moving their respective offices as aforesaid until said case of Butler against McMillen shall be finally decided in the supreme court. That case has been decided in this court, (Butler v. McMillen, 13 Kas. 385;) but the decision of that case will not affect the present decision of this case. The defendants demurred to said petition on various grounds, among which was the ground that the petition did not state facts sufficient to constitute a cause of action. The court below overruled said demurrer, and the defendants below now bring the case to this court. It is difficult to understand upon what principle it is supposed that this action may be maintained. There is no statute authorizing such an action; and we do not think that it can be maintained under any general principles of law or equity. There is a statute authorizing suits to contest county-seat and other elections; (Laws of 1871, page 190.) But this action was not brought under that statute. The plaintiff in this case does not pretend to found his rights upon any election. He does not allege, except possibly remotely and inferentially, that any election was ever held in Neosho county. He does not at all allege that any election was illegal or void; he does not, except by a very remote inference, allege that Osage Mission ever became the county-seat by virtue of any election, or otherwise; and above all, he does not attempt in this action to contest any election. The substance of his petition is, that at one time he filed a petition in another case in which he alleged that Osage Mission was the county-seat of Neosho county; that there had been an election under which the county commissioners had declared that Erie was the county-seat of said county; that under said election said McMillen was about to move his office of county clerk to Erie; but either that said election was void, or that Osage Mission had become the county-seat thereunder and by virtue thereof. But we do not understand that the plaintiff below claims that he brought his action under said statute, and it is not necessary therefore to say anything further with reference thereto. The plaintiff is not a public officer, prosecuting for the benefit' of the public; and he'does not show that he has any special or private interest in the subject-matter of the action which calls for any special interposition of the courts of justice for his particular benefit. Merely being a resident, a citizen, an elector, or a tax-payer, or all combined, does not authorize a private individual to summon the public officers into the courts of justice to answer for their official conduct. (Bridge Company v. Wyandotte County, 10 Kas. 326, 331, and cases there cited; Miller v. Town of Palermo, 12 Kas. 14.) His interest must be private and special in order to invoke the special intervention of the courts in his favor. But under no view that we may take of the circumstances, should the courts interfere in this particular case. If the judgment of the court below in the case of Butler v. McMillen is right, and in the absence of anything to the contrary we we must presume that it is right, then no new injunction should be granted to restrain the county officers from moving their offices to Erie, for the court in that case determined that Erie was the county-seat. But even if said judgment is wrong, still if the theory of the plaintiff, that all the county officers are in privity with each other, that all are bound by said temporary injunction, and that said temporary injunction ■ is still in force, is correct, then the plaintiff does not need any further injunction, and the injunction should be refused in this case for that reason alone. .Why should the plaintiff want two injunctions against the same persons for the same thing? It will be remembered that the injunction prayed for in this case is only to restrain the officers until the other case can be decided in the supreme court. The judgment of the- court below is reversed, and cause remanded for further proceedings. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: This was an action to recover damages for the breach of a contract to deliver corn. Two questions are presented by counsel for plaintiff in error in their brief. First, it is claimed that the court erred in ruling out a deposition, and second, that it improperly refused an instruction. The undisputed facts are, that on the 26th of December 1873 the parties made a contract by which plaintiff in error, (defendant below,) agreed to deliver 2,000 bushels of corn on the cars at Hanover, within thirty days, at thirty cents a bushel. Before the thirty days were passed corn was worth forty cents, and no corn was delivered. At the time of the making of the contract Scrafford gave Jardicke a • check for fifty dollars on the banking-house of Lappin & Scrafford, and Jardicke signed what was both a receipt and also a memorandum of contract. By the terms of this memorandum two hundred dollars more was to be paid on the delivery of 1,000 »bushels, and the balance on the delivery of the other thousand. Scrafford testified that the further agreement was, that Jardicke, when he was ready to deliver the corn, should call upon the station-agent at Hanover for the cars, who by previous arrangement was to furnish the cars whenever notified. Jardicke on the other hand testified that Scrafford was to procure the cars and notify him when they were at Hanover ready for the corn. Jardicke never called on the agent for the cars, and never bought the corn. Upon this disputed testimony the court charged the jury very fairly and clearly. No objection is made to the charge in this respect; indeed, none could be. On the 26th of January 1874'Scrafford wrote this letter to Jardicke: “Dear Sir: When you are ready to deliver the corn, call on the station-agent at Hanover for the cars. “C. Gr. Scrafford.” This letter was received on the day it was sent. On the 12th of February Jardicke wrote this reply: “Inclosed please find your draft of fifty dollars. In reply I will state that I must have cash money here to do business with. Therefore I send the draft back. If you will send the money for the draft, the 2,000 bushels of corn are engaged and bargained for, but I cannot buy them without the cash money, and I am not able at present to go ahead as I have stated.” This letter was directed, with the draft or check previously given by Scrafford inclosed, to “Lappin & Scrafford,” but was not taken by them out of the post-office, and subsequently returned to Jardicke. This last letter, and a deposition of the postmaster at Seneca, as to the receipt and return of the letter, and what was said by Scrafford in reference to the refusal to take the letter out of the office, were offered in evidence, and ruled out as irrelevant. The language of the deposition is, “ I can’t now give the reason assigned by him, but it was something about an anticipated law suit about a corn contract with the sender of the letter.” This ruling is one of the alleged errors. We fail to see any error in it. Counsel for plaintiff in error contend that the letter of Scrafford was a waiver of the thirty-days clause in the contract, and an offer to extend indefinitely the time for the delivery of the corn, and that the letter of Jardicke was an acceptance of this offer, and that therefore, before any action would accrue to Scrafford he must prove a tender of the money and demand of the corn. We do not think either letter justifies fully the construction placed upon it. While from Scrafford’s letter a willingness might be implied to receive the corn, though the thirty days had elapsed, and he testified that he would have been willing, we do not understand it as convey ing any proposition for a change of the contract. It was properly admitted by the court, as tending to throw light upon the disputed terms of the original contract, but beyond that we think it has no force. Neither the letter of Jardicke, nor the deposition of the postmaster, throws any light upon the terms of the contract, or affects in any way the right of recovery, or the measure of damages. So far as the testimony of the postmaster in any respect conflicts with that of Scrafford, it was upon a purely collateral matter. The instruction refused was, “that if by the terms of the contract the defendant was to deliver to the plaintiff certain corn within thirty days from the making of said contract, and that plaintiff was to pay for said corn at the time of said delivery, then before plaintiff can recover he must show that at the expiration of said thirty days he made demand of defendant for said corn, and paid defendant or tendered him payment therefor.” It was sufficient reason for refusing this instruction that it was inapplicable to the contract as testified to by either party, and omitted matters which in either case were vital to the question of the right to recover. There being no other error complained of, the judgment must be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: The only question which we shall decide in either of these two cases, is the same in both, and hence we shall consider the two cases together. The first case was an action of replevin brought by Davis against Eillmore for a portable saw-mill. The defendant had purchased the mill from the plaintiff, and was then the owner of the same, but he had also given a mortgage thereon to secure the payment of five certain promissory notes, given by himself to the plaintiff, each for $500, due respectively in three, six, twelve, eighteen and twenty-four months from date. There was a stipulation in the mortgage, that the defendant should hold possession of the mill until the condition of the mortgage was broken. The only question therefore to be tried in the court below was, whether said condition had been broken or not. The other case was an action for money founded upon transactions connected with said portable saw-mill. Each case was tried before a jury, and in each case the verdict was for the defendant. In the second case the defendant recovered $264.73. Judgments were properly rendered on the verdicts, and then the plaintiff brought both cases to this court on petition in error. Both cases came on regularly for hearing in the supreme court. Both were regularly called by the court, and both were submitted to the court by the defendant, on his briefs. But the plaintiff made no appearance in either case, nor has he made any appearance in either case, by brief or otherwise, at any time since he filed the cases in this court. We must therefore presume that he has waived and abandoned all his assignments of error as untenable. (Wilson v. Fuller, 9 Kas. 176, 186; Howard v. Cobb, 6 Ind. 5; Robinson v. Tipton, 31 Ala. 595.) And probably they are all untenable. We will give some specimens of them. In the replevin case, the first assignment of error is, “That the said court erred in the instructions given to the jury on the trial of said action.” Now we do not think that the court below committed any substantial error in giving instructions to the jury; but must we look through a long list of instructions, to hunt error, with nothing more to guide us than the above assignment.of error? The second assignment is, “That the said court erred in refusing to give the instructions to the jury which the said Davis prayed the said court to give.” Now we cannot find in the record that- “the said Davis prayed the said court to give” any instructions, or that he excepted to any refused. ' Third, “That the facts set forth in the answer of said defendant are not sufficient in law to constitute any defense.” The answer was a general denial, and such an answer we think is good in replevin. (Wilson v. Fuller, 9 Kas. 177, 190, et séq.; Gilchrist v. Schmidling, 12 Kas. 269.) Fourth, “That the said court erred in overruling the demurrer of the said plaintiff to the answer of said defendant.” Now we cannot find from the record that the plaintiff demurred to the answer of the defendant; but even if he did, we suppose a demurrer to a general denial in replevin should be overruled. Fifth, '“.That said court erred in admitting the evidence of said Fillmore, to'which said Davis objected.” We think the evidence was competent and proper. But is it our duty, with nothing more than this assignment to guide us, to look through a vast amount of evidence to see whether it is proper evidence or not under the pleadings and previous evidence? Sixth, “That said court erred in ruling out the evidence offered by said Davis on the trial of said action.” Now there was substantially no evidence offered by Davis and excluded by the court. The court at one time, rightfully as we think, refused to let Davis prove what Davis himself at a former time had said; but no exception was taken, to this ruling, and we think that Davis afterward proved this same conversation. We can find no other evidence offered by Davis and excluded by the court. Seventh, “ That the said court erred in- overruling the motion of the said Davis for a new trial of- said cause.” We have failed to discover the error. .Eighth, .“That said judgment was given for said Fillmore when it should have been given for said Davis, according to the law of the land.” We think the judgment is correct. Ninth, “That the verdict of the jury was rendered in favor of the said Fillmore when it should have been according to the evidence in -favor of said Davis.” We think the verdict was right; but even if not, still there was ample evidence to sustain it. These are all the assignments of error in the replevin case, and these are fair samples of the errors complained of in the other case. If we should examine the two cases thoroughly and critically we would probably be unable to find any such substantial errors as would authorize a reversal of the judgments. But we do not choose to make any such thorough and •critical examination, but choose rather to decide the cases solely upon the ground that the plaintiff has abandoned the supposed errors since filing his cases in this court. Business is accumulating so rapidly in this court, that- we need all the ■ aid and assistance we can get from counsel. So, henceforth, as a rule, whenever the plaintiff’s counsel shall fail to furnish us with a brief, we shall affirm the judgment without any consideration of the errors assigned. (Hutchinson v. Bain, 11 Kas. 234; Davis v. First National Bank, 28 Ind. 240, and cases above cited.) We decide these two cases upon this principle. The judgments of the court below in these two cases must be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: This was an action to recover for the rent of a room occupied by the county treasurer. No testimony was heard, but the case was tried upon an agreed statement of facts. So much thereof as is material, is as follows: “ That said county treasurer held his office in said building during the time that plaintiff was the owner thereof, with the knowledge and consent of the plaintiff herein.” “There was no express contract between plaintiff and defendant that plaintiff should receive compensation for the use of this building by said county treasurer, but defendant knew that said building was so- occupied, and plaintiff informed at least two members composing the defendant board, that he should expect and demand compensation for the use of his said building.” “ This information was given to these two members, not to the board of county commissioners, shortly after September 20th 1871, and frequently after said date, and neither of the members of the defendant board made any objection when said information was so conveyed.” “The defendant herein, during said period had not provided the county treasurer of said Neosho county with any place to hold his office, further than their suffering said treasurer to occupy the building of plaintiff would constitute such provision,” Was the county liable? There would be no question, if the defendant were an individual, or a private corporation. The law would imply a contract, and a promise to pay the reasonable value of the use of the room. And we think the same result must follow from the agreed facts, though the defendant is but what is sometimes called an involuntary quasi corporation. To provide suitable rooms for county officers, is a duty expressly cast upon the defendant. Gen. Stat. ch. 25, §§ 4, 16 and 172. The only provision made was in the occupation of plaintiff’s room. The only way therefore in which this duty was discharged, was by an appropriation of the property of plaintiff, and it was so appropriated with the knowledge and consent of the defendant. Here are all the elements of an implied contract. And to make the' matter stronger, the plaintiff, pending the occupation, gave notice to two of the. three commissioners that he should expect pay for his property. The case of Comm’rs of Neosho Co. v. Stoddart, 13 Kas. 207, is by no means similar. There an attempt was made to bind the county by the contract of the sheriff, or district court, or both, for the furnishing of matting for the court-house, and the only point decided was, that neither the court, nor the sheriff, nor both together, could^so bind the county without the consent-of the commissioners. £he very thing which was wanting there, is present here, to-wit, the consent of the commissioners. For the consent of the defendant means, the consent of those officers, or that agent of defendant charged with the duty of consenting or dissenting. Where there is an express contract, that will control, and the rights of the parties must be settled by it. Perry v. Bailey, 12 Kas. 539. But when there is no express contract, the law may imply one, when a party knowingly receives and appropriates to his own use the property of another. The judgment of the district court will be reversed, and the case- remanded with instructions to enter judgment in favor of plaintiff for agreed value of the rent. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: This was a prosecution by the city of Olathe against E. W. Adams and N. Julien for keeping open a dramshop on the Fourth of July 1874, in violation of a city ordinance. The prosecution was commenced before the police judge. The defendants were there found guilty, and they then appealed to the district court. In the district court they were acquitted, and the city now appeals to this court. The city claims that the prosecution is in its nature a criminal action, (and we think the city is correct; Neitzel v. City of Concordia, 14 Kas. 446;) and therefore the city brings the case to this court by appeal, under § 283 of the criminal code, (Gen. Stat. 865,) instead of by petition in error, as is required in civil actions. For the purposes of this case therefore we shall assume (and probably correctly,) that this is a criminal action; that it is appealable to this court under the criminal code, and that it is governed by all the rules pertaining to other criminal actions, so far as such rules can be made applicable to this case. The facts of the case, so far as it is necessary to state them, are substantially as follows: A complaint was made on oath, and in writing, charging the defendants with the said offense. The defendants were arraigned upon the charge, and pleaded “not guilty.” Trial was had in the district court, before the court, without a jury. The case was submitted to the court upon an agreed statement of facts; and for the purposes of this case, we shall assume that the facts showed that the defendants were guilty. “And,” [as the record shows,] “the court having had the cause under advisement, and having duly considered the issues herein, and the said agreed statement of facts, and being well advised in the premises, finds for the defendants.” This finding we think is equivalent to a verdict of “not guilty.” And for the- purposes of this case we shall assume that the finding is erroneous. The court then rendered judgment upon this finding for the defendants for costs, and discharged the defendants. The judgment was the only one that could have been rendered upon said finding. The city now appeals to this court, and asks to have said judgment reversed. Can it be done ? If the j udgment had not followed the finding, of course it could be reversed. (The State v. Walter, 14 Kas. 375.) Or, if this were a civil action we could ignore the finding of the court below, considering it merely as a conclusion of law from the facts admitted; we could decide the case upon the agreed statement of facts, and could order the proper judgment to be rendered upon the facts agreed to. (Brown v. Evans, ante, 88.) But the case being in its nature a. criminal action, we have not the same authority to ignore or overrule the finding of the court below. If we should merely set aside the judgment of the court below, the finding would still remain in all its force and vigor, and no other or different judgment could be rendered thereon. The finding would still require the same judgment as has already been rendered. And we know of no authority in this court, or in any other court, to set aside a verdict or finding of “not. guilty,” in a criminal action. We think it is the universal opinion, both of bench and bar, that a verdict of “not guilty,” in a criminal action, ends the case. The defendant could not be tried a second time against his consent; for under § 10 of the Bill of Eights, (Const, of Kansas,) he cannot “be twice put in jeopardy for the same offense.” Now, although the finding of the court below may be founded upon an erroneous view of the law, still we do not see' how we can disturb it. The- plea of the defendants was, “ not guilty.” The agreed facts showed them, as we have assumed^, to be guilty. The court however found them not guilty; and with our understanding of criminal law, this finding is conclusive. The judgment of the court below must therefore be affirmed. All the Justices concurring.
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■The opinion of the court was delivered by Kingman, C. J.: The appellant wás tried for the murder of Thomas Anderson, and found guilty of murder in the second degree, and brings the-case to this court by appeal. In the argument attention is called to two errors of the court below. These alleged errors are, first, in not granting the motion for a change of venue, and second, in admitting the so-called dying declaration of William N. Anderson in evidence. Did the court err in refusing to order a change of venue? The application was supported by the affidavits of the appellant, the sheriff, and the acting jailor of the county. These affidavits made out a prima fade case for removal, but the state read a great number (over ninety) affidavits, from citizens of each of the townships of the county, abundantly showing that there was no such state of feeling generally prevailing throughout the county as would prevent the accused from having a fair and impartial trial therein, or would even make it difficult to obtain an.impartial jury for the trial. Outside the village of Brookville, where the accused and the deceased had resided, and been generally known, there seems to have been no more feeling than usually prevails in any community where there is a homicide. Two lives were taken by violence. The better feelings of men were shocked by the event. Some intemperance of expression may be expected in such cases from men; but it is obvious, that where that feeling existed, it created no strong prejudice against the accused. The extracts from the two papers at Salina, while they in several important respects stated the facts more harshly against the accused than the testimony justified, yet they at the same time cautioned their readers that the statements made were gathered from reports, and must not be considered as being reliable, and that it was the duty of all to wait till the case was heard before forming their opinions. With this caution before the reader, the mistakes as to the facts would hardly create a prejudice against the accused in the minds of fair men. There were articles in the Brook-ville paper strongly tending to inflame the public mind, and perhaps so intended; but that paper had little circulation in the county outside of Brookville, and in several of the townships was not known at all. Following the decision in the case of The State v. Horne, 9 Kas. 119, we are of the opinion that there was no error in refusing a change of venue. Was there error in admitting the dying declaration of William N. Anderson? It is so urged on various grounds, the principal of which are these: because, the preliminary proof did not sufficiently show that the person making the declaration was certain that the hand of death was on him; that he was not in possession of sound'mental faculties at the, time such declaration was’ made; that all the declarant said, was not reduced to writing, but only that part that the writer deemed relevant; and chiefly, because the dying declaration of William N. Anderson, made hours after the death of Thomas Anderson, is not competent evidence against the accused upon his trial on an information for the murder of Thomas Anderson only. As our conclusion on the last point suggested is decisive in the case, the consideration of the other points may be waived, especially as their decision depends upon questions of fact raised upon the record, rather than upon controverted points of law. The facts of the case bearing upon the question under consideration are substantially these: A little before four o’clock a.m., on the 3d of November 1874, the appellant shot Thomas Anderson and William N. Anderson. The shots (four in number) were in rapid succession, but a brief time intervening between the first and last shots. Of the wounds' then inflicted, Thomas Anderson died almost instantly, without uttering a word. William N. Anderson lived about seventeen hours, and sometime about noon made the statement admitted as a dying declaration. The appellant was tried on an information for the murder of Thomas Anderson only. On these facts the question arises, Can the dying declaration of one person' be received as proof of guilt against a party charged with murdering some other person ? In The State v. Medlicott, 9 Kas. 283, the rule on this point was thus stated: “Such declarations therefore are admissible only when the death of the person who made the declaration is the subject of the charge, and where the circumstances of the death are the subject of the dying declaration.” In that case the question involved was, whether the deceased was in the full belief that he was in articulo mortis when he made the declaration; and the attention of the court was mainly directed to that question, and the part quoted need not have been stated. The court therefore feels no such embarrassment on account of what was said in that case as will interfere with a full examination of the question now. In 1 Phillips on Ev., 287, the rule is laid down thus: “Such declarations are generally admissible only where the death of the declarant is the subject of the inquiry, and where the circumstances of the death are the subject of the dying declaration.” And to the same effect the rule is laid down in the decisions generally. In a note to § 156, 1 Greenl. on Ev., Mr. Redfield states, that this evidence is not received upon any other ground than that of necessity, in order to prevent murder going unpunished; and that a misapprehension of the true grounds on which such testimony can be received, has sometimes led courts into error, as in England, where, at one time such declarations were admitted in other than murder cases. But these decisions have been overruled, as not correctly stating the law. The admission of this kind of testimony is an exception to the general rule that excludes • hearsay testimony. Its admission can be justified only on the ground of absolute necessity, growing out of the fact that the murderer, by putting the wituess, and generally the sole witness of his crime, beyond the power of the court, by killing him, shall not thereby escape the consequences of his crime. On no other ground can the admission of such testimony be justified. It is true that sometimes courts have given, as the reasons for' its admission, some of those limitations that have been established as safeguards to prevent the rule from being abused. Such statements are not sound, and are likely to lead to confusion, and in some cases they undoubtedly have done so. Necessity, then, being the only ground on which such testimony can be admitted, it remains to be seen whether that necessity exists so generally, or to so great an extent, where the death of any one else than the declarant is the subject of the inquiry, as to justify the adoption of a rule admitting such testimony. Cases may be suggested where the necessity appears to be strong. Thus, where a murder is committed, and a material witness of the crime, but not affected by it, and by whom alone it can be proven, is dying, and in that hour makes a declaration of the facts which he knows, and which took place months before. This declaration is made under circumstances equivalent to the sanction of an oath; but the accused cannot cross-examine, cannot call attention to other material facts not thought of by the declarant. No one will contend that this declaration can be given in evidence. The necessity exists, but it applies to a single case, and not to a class of cases, and therefore should not be made an exception to the rule excluding hearsay testimony. It would be as difficult to suggest a case where, as in this, two men are killed at or near the same time, that any necessity exists for the admission of the statement of the one whose death was not the subject of the inquiry, as it is in any other criminal case where a material witness is dead. This case is a fair illustration. If the declaration of William N. Anderson was necessary to convict the accused, then it could have been used on the trial for the murder of William N. Anderson. The accused was as guilty of his murder as of that of Thomas. There is then no necessity for extending the exception further than has already been done.: 1 Once break down the barriers established by the wisdom of our law, and extend the exception beyond the reason that permitted it, and it would let in a most dangerous species of evidence in a whole class of cases. The great weight of authority will bear out the rule as laid down in The State v. Medlicott. And reason is all in favor of holding the rule as there stated. In the cases of State v. Terrell, 12 Rich. (S. C.) 321, and of State v. Wilson, 23 La. An. 558, which greatly resemble this case, such evidence was admitted. The cases do not in our judgment rest on authority, and no satisfactory reasons are given for the ruling. These cases stand alone in this country, and we prefer to adhere to well-established rules, rather than follow decisions for which no reason is given, and which seem dangerous in their tendency. It follows that the evidence was improperly admitted. The learned counsel for the state however, suggests, that the case was abundantly made out in every particular against the appellant by other evidence. This may be so, and if so, it is a striking illustration of how unnecessary it was to introduce the dying declaration in this case. But what effect this evidence had upon the jury, and what effect the other evidence had, it is not the province of this court to decide; nor has it the means of doing so. The evidence was admitted after a long struggle, and may well have had more influence upon the jury than it would have upon this court. The evidence was vital, and as it was improperly admitted the judgment must be reversed, and a new trial ordered. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: This was an action of replevin brought by Kennedy against Samuel Beck and six others. The only rulings of the court below of which the plaintiff now complains are such as were made in favor of the defendant Beck, and against the plaintiff. The facts of the case necessary to be known, in order to have a correct understanding of said rulings, are as follows: On January 27th 1874 the plaintiff filed in the office of the clerk of the district court of Smith county his petition, affidavit, undertaking, precipe, and some other papers, for the purpose of commencing this action of replevin. No question is now raised with regard to the sufficiency of any of the papers, except the precipe; and we may as well consider the question of its sufficiency here as in any other place. The defendant claims that there was “ no written precipe for summons on file.” The body of the precipe filed reads as follows: “The clerk of the district court will please issue process in the above entitled action, returnable according to law.” We suppose the only objection to this precipe is, that it says “process” and does not say “summons.” We think the precipe was sufficient, both for the summons, and for the order of delivery. The order of delivery was issued on the same day said papers were filed, and was duly served and returned within two days thereafter. The summons was not issued however until February 16th, next following. It was served on all the defendants, and returned within nine days after it was issued. Afterward, all the defendants answered. Beck answered on March 16th. He set forth in his answer that he was the owner of the property, and claimed a return thereof, and damages. On May 5th, “The said defendant Beck moves the court to set aside said order for the delivery of said prpperty to the plaintiff, and declare all proceedings thereunder null and void, and to award to said defendant the right to the possession of said property.” On May 7th, the court below sustained this motion, and the plaintiff excepted; and this is the ruling of which the plaintiff now complains. On May 9th, the case was continued by the court below until the next term of that court. Whether the case has yet been disposed of in the district court, we have no knowledge. The defendant claims that this court cannot review said rulings of the district court until the case is finally disposed of in that court. We think however the defendant is mistaken. The statute provides that, “ The supreme court may also reverse, vacate, or modify any of the following orders of the district court, or a judge thereof — -first, a final order; second, an order that grants or refuses a continuance, discharges, vacates or modifies a provisional remedy,” etc. (Civil Code, § 542.) Now the action of replevin in this state is both provisional and final. The disposition of the property in controversy, pending the litigation, is provisional. The disposition'of the property by judgment at the termination of the action, is final. We suppose there can be no question about this. The order for the delivery of the property issued at the commencement of the action, together with the necessary incidental proceedings, is purely a provisional remedy. And hence, under our code, an order of the district court that vacates and sets aside said order of delivery, and the incidental proceedings connected therewith,, is immediately reviewable by this court; and it is not necessary in such a case for the aggrieved party to wait till the final termination of the action in the district court, before bringing the question to this court. Besides, the action of replevin is peculiar. The provisional portion thereof is so intimately connected with the ultimate remedy of the litigating parties, that the whole proceeding is generally classed among the provisional remedies. And this being so, it would almost seem that, under another provision of the statute, an order of the district court involving the merits of the provisional portion of the action might be immediately reviewable by the supreme court, as an order that involves the merits of an action, or some part thereof,” without waiting for the final termination of the action. (Code, § 542, last clause.) We do not decide this question however, now. But did the district court err in setting aside the order of replevin, with the proceedings connected therewith, and in giving the custody of the property to Beck? Now, if the plaintiff was not entitled to the custody of the property, perhaps he has no right to complain that the-court erred in giving the property to Beck, instead of giving it to some one or more of the other defendants, or to a stranger; and hence we pass oyer this question without further consideration thereof. We shall consider Beck however, for this purpose, as representing the interests of each and all of the other defendants; and then, did the court below err? We think it did. It was undoubtedly a great irregularity in issuing the order of replevin before issuing the summons; and if the defendant had made his motion in time, his motion should undoubt- , . . edly have been sustained. But still, it was not the fault of the plaintiff that the irregularity occurred. It was merely the mistake of the clerk; and we do not think it ■was one of those fatal irregularities that cannot be cured or waived by subsequent proceedings. If the defendant had moved to set aside the order of replevin, and all the proceedings thereunder before he answered, the motion should have been sustained. In that case, the defendant would have got the possession of the property for the time being, and if the plaintiff had then desired to get possession of the property, or to prosecute his action further, he could have got another order of replevin. But the defendant did not make his motion before he answered. He answered first, and made his motion afterward, and thereby put it beyond the power of the plaintiff to obtain another order of replevin. A plaintiff is entitled under the statute to obtain an order of replevin only “at the commencement of the suit, or at any time before answer.” (Code, § 176.) Now, can it be possible that by the mistake of the clerk, and the defendant’s answering before he made his motion, that the plaintiff can be virtually and substantially deprived of his action of replevin? We think not. We think the defendant waived the irregularity of issuing the order of replevin before the summonSj when he answered to the merits of the action. In the interest of justice this ought to be so. When a supposed action is commenced, the defendant, unless he desires to answer to the merits at once, -should examine all the proceedings carefully, and see whether he cannot defeat the action for irregularities or defects in the proceedings, and upon motion. If he should think he could not defeat the action in that way, then he should see whether he could not defeat it by plea in abatement, or by demurrer. But if he- thinks be cannot defeat it in any of these ways, then he should finally and lastly plead to the merits of the action. And when he does so plead, it should generally be regarded that he waives all mere irregularities preceding his plea. Of course, this is not so where the statute provides otherwise. Of course, it is not so where justice would be as well or better subserved by a different rule. And of course, it need not necessarily be so where any of the provisional remedies, other than replevin, are resorted to in connection with the principal or main remedy; for any of the other provisional remedies may be had at any time, before or after answer filed, and some of them even after judgment. And hence, to dissolve or vacate any of the other provisional remedies, after answer filed, can do the plaintiff but very little harm, for he can immediately commence again to get another such remedy. Besides, no other provisional remedy is so intimately connected with the main action as the provisional portion of replevin. The provisional remedy in replevin is in fact a part of the main remedy. And to defeat it, may substantially defeat the whole action. The judgment of the .court below is reversed, and cause remanded for further proceedings in accordance with this opinion. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: On the 18th of February 1873, there being a vacancy in the office of treasurer of the school district, one W. F. Riddel was duly appointed to fill such vacancy, and qualified as such officer, among other things giving the bond sued on. On the 27th of March 1873, at the regular annual election, the said W. F. Riddel was duly elected treasurer for the ensuing year. He took no new oath of office, and gave no new bond, but continued to act as treasurer until his death, November 10th, 1873. Were the sureties on the bond responsible for moneys that passed into his hands after the election ? The bond does not in terms fix any limits to the time of its running. It does not purport to be given for a year, or a month, or any other period of time. Neither does it specify the length of the term of Riddel’s office. Its condition is as follows: “ The condition of the above obligation is such, that if the said treasurer shall faithfully discharge his duties as treasurer of said district, as prescribed by law, then this obligation to be void, otherwise to be and remain in full force.” Again, the law provides that school-district officers “shall hold their respective offices until the annual meeting next following their election or appointment, and until their successors are elected and qualified.” Now do either or both of these facts render the sureties liable for default occurring subsequent to the term for which the principal was appointed? We think not. The silence of the bond as to its own duration, is immaterial. The law fixes the length of the principal’s term, and the obligation of the sureties extends only to the term existing, and for which the bond is given. Nor does the failure of the people to elect a successor, or of the successor elected to qualify, extend the term for which the principal was appointed. He may, it is true, be continued in office, as the statute has provided, for preventing a vacancy between the close of the one term and the election and qualification of a successor; but he is simply filling a part of his successor’s term. The authorities generally coneide with the views above expressed: See Wapello v. Bigham, 10 Iowa, 39; Chelmsford Co. v. Demarest, 7 Gray, 1; People v. Aikenhead, 5 Cal. 106; Mayor, &c., v. Horn, 2 Del. 190; Rany v. The Governor, &c., 4 Blackford, 2. In the first case, the suit was on a county treasurer’s bond, who by statute held until his successor was elected and qualified. Elected his own successor, he gave no new bond, and the sureties on the bond given for the first term were held not responsible for default occurring during the second. The second was the case of a bond given by the treasurer of a private corporation. He was to be chosen annually, and to hold till another was chosen and qualified. The third case is like this, in that it was the duty of another officer, on the failure of a party elected to give bond, to treat the office as vacant and appoint some one to hold. The court say, the sureties might well rely on the proper discharge by that officer of this duty. Here, if the district treasurer fails to give bond, it is made the duty of the board to appoint one who will: Gen. Stat. 923, §37. The cases of Krutschmitt v. Houck, 6 Nev. 163; The State v. Wells, 8 Nev. 105; and Thompson v. The State, 37 Miss. 518, are partially against the views here expressed. But the first case the court treats as an appointment during pleasure; and in the last there was no fixed time for the commencement and close of a term, or the appointment of a successor, and the case is really not in conflict with the general current of the decisions. The judgment will be reversed, and the case remanded with instructions to grant a new trial. Kingman, C. J., concurring.
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The opinion of the court was delivered by Valentine, J.: This was an action brought by Dresser against John Branscom, Martha Branscom, and John W. Wood, to foreclose a certain mortgage. The real contest however is between Dresser and Wood. Each is the owner of a mortgage given by the Branscoms upon the same land, and each claims priority of lien. Wood’s mortgage was executed first; but as a mistake was made .in describing the mortgaged property, Dresser’s mortgage would seem to take precedence. *• Dresser’s mortgage was executed originally by the Branscoms to Warner, Mowry & Hawkins, partners in business, and was by them assigned to the plaintiff Dresser. Immediately after the Dresser mortgage was' executed, and while it still remained in the hands of Warner, Mowry & Hawkins, to-wit, on November 4th 1871, Keeler & Johnson, as attorneys-at-law, commenced an action in the name of Wood, but without his knowledge or consent, against the Branscoms, and against Warner, Mowry & Hawkins, to obtain a decree reforming the Wood mortgage, and making it the prior lien on the mortgaged property. The Branscoms were duly served with summons. Warner was also served with summons, but it is claimed by Dresser that' the service was void, and this is the first question raised in the case. The service was not made by the sheriff in person. But he deputized a person by the name of S. Newhouse to serve the same. The authority was indorsed on the summons in accordance with § 63 of the code, • (Gen. Stat. 642,) in the following words, to-wit: “I hereby deputize S. Newhouse to serve this summons. — E. T. Ellis, Sheriff.” Newhouse served the summons on Warner on the same day, November 4th, by delivering to him a copy of the summons with all the indorsements thereon, except the foregoing indorsement of authority to Newhouse to serve the summons. The copy delivered to Warner was not in any manner certified to be a copy. It is claimed by Dresser that the service of the summons was void because said copy was not certified, and because said indorsement was omitted therefrom. Now neither, as we think, was necessary. The statute provides that, “ The service shall be by delivering a copy of the summons to the defendant personally,” etc. (Civil Code, § 64.) The statute does not require that a oertified copy of the summons shall be delivered to , A . the defendant, nor does it require that a copy of anything more than the summons shall be delivered to him. The summons is the writ, as it is issued by the clerk. (Code, § 59.) It does not need anything more than what the clerk- puts in it, or on it, to make it a summons; and anything more is no part of the summons. Taking the statute as it reads, and these propositions seem clear beyond all doubt. And we know of no reason why we should not take the statute as it reads. This service then, on Warner, was a good service, and gave Warner notice of all the rights of Wood. And as a rule, notice to any one of two or more persons interested jointly as partners, is notice to all. The action from and after November 4th was actually pending as to the Branscoms, and as to Warner. Afterward' Wood filed an affidavit for service by publication, and actually got service by publication, not only upon.Mowry and Hawkins, but also upon Warner. It is claimed by Dresser that this second service on Warner invalidated the first, or was at least a waiver of the first. We do not think the claim is tenable. (Stevens v. Thompson, 5 Kas. 305.) Afterward the defendants Warner, Mowry & Hawkins appeared in the case, filing an answer denying generally all the allegations of the plaintiff’s petition. Afterward, when the case was called for trial the defendants Warner, Mowry & Hawkins did not appear. The court then found that personal service had been made on the Branscombs, and that service by publication had been made on the other defendants, Warner, Mowry & Hawkins, and did not mention the personal service made on Warner. The court then proceeded to hear the case, and rendered judgment as prayed for by plaintiff Wood. It is now claimed by Dresser that said finding of the court, that service by publication had been made on Warner, and not mentioning the personal service made on him, was an adjudication by the court that such personal service had never been made, or that the supposed personal service should be set aside. The claim is not tenable. Besides, Warner once made a direct motion to the court to set aside the personal service made on him, and the court overruled the motion. And it was not overruled, as the plaintiff in error now intimates, merely because it was connected with a motion to quash the summons, but it was .overruled, as the record clearly shows, because the court considered the service good. And further, if the court adjudicated the personal service on Warner out of existence, without even mentioning it, did not the court also adjudicate the appearance of Warner, Mowry & Hawkins out of existence? This latter will hardly be claimed. The petition was filed, and service made on the Branscoms and Warner, on November 4th 1871. The mortgage was assigned by Warner, Mowry & Hawkins to ^ ^ ' Dresser on November 27th, Dresser having no actual notice of the commencement of the action, or of Wood’s rights or claims. And service was not commenced to be made on the other two defendants, Mowry and Hawkins, until January 6th 1872. Hence, more than sixty days had elapsed after the filing of the petition, and before service was commenced to be made on Mowry and Hawkins, and hence the lis pendens provided for by § 81 of the code, (Gen. Stat. 645,) could not operate as against a purchaser from Mowry and Hawkins, provided they had owned the entire property in the thing transferred. But they did not own the entire property in the thing transferred. They, with Warner, owned the property jointly, as copartners. And Warner had been served with summons, and the action had been actually pending as against him for twenty-three days when the mortgage was assigned to Dresser. But it ip claimed by Dresser, that as the mortgage was held jointly, and not in severalty, by Warner, Mowry & Hawkins, no judgment could be rendered against all or any of them upon a, service made on Warner alone; and therefore, that no lis pendens could have existed when Dresser purchased the mortgage from Warner, Mowry & Hawkins. Now for the purposes of. this case we shall admit that no final judgment reforming the Wood mortgage as against them could have been rendered against Warner, Mowry & Hawkins, or against either of them, on the service made on Warner alone; but we do not think that it follows from this fact that no Us pendens could exist at the time when Dresser purchased the mortgage from Warner, Mowry & Hawkins, under which he claims priority. The service on Warner was unquestionably valid, so far as the question we are now considering is concerned. Indeed, there is no way, under our laws, by which a service of summons can be made 011 a C0Part'nership-firm except by making the servjCe on each individual member of the firm. And from the time that each individual member of the firm is so served, the action stands actually pending against such member. If the service were void as to each member, when served, it would evidently be void as to all of them when served, which cannot be admitted. But as the service is valid as to each member when served, it would seem to be clear beyond all doubt that no person could purchase or obtain any interest in the subject-matter of the action from such member, when so served, so as to defeat or affect any right of the plaintiff in the action in which such service was made. But to purchase anything from one' of the members of a copartnership-firm, is to purchase it from every member of the firm. For instance, take .the present case. Warner’s interest in the mortgage extended to every conceivable or inconceivable portion of the mortgage. No portion of the mortgage could be purchased without purchasing a portion of Warner’s interest therein. And as each and every partner who has any authority to make a sale of any portion of the partnership property, is, in fact and in law, an agent for that purpose for each and all of the other members of the firm, a purchase from such member, who is an agent, is a purchase from each and all of the other members who are principals. Therefore,-'a purchase from Mowry, or Hawkins, or both, would be a purchase from Warner.. And therefore we think it follows from the foregoing premises, that whenever any member of a copartnership-firm is served with a summons, a lis pendens is at once created to such an extent that no person can purchase from any member of the firm any portion of the subject-matter of the action so as to affect the rights of the plaintiff in the action. It would be unfortunate if such were not the law. If such were not the law, as soon as one member of a firm were served with summons, the other members might sell the subject-matter of the action to an .innocent purchaser, just as was done in this case, and then, if for any reason service should not be personally made or commenced by publication on every' other member of the firm within sixty days after filing the petition, any judgment that might thereafter be rendered might be wholly unavailing and ineffectual for the purpose of protecting or enforcing the rights of the plaintiff therein. And further: if it be true, that no judgment could have been rendered against Warner after he was served with summons, except upon the contingency that both the other members of the firm should also be served with summons, still it is no more true than that no judgment could be rendered against any or all of them except upon the happening of several other contingencies. Even after service is made upon all the defendants in any case, no judgment can be rendered except upon the hap-, pehing of a greater or less number of contingencies. The judgment usually depends upon the evidence; and connected with the evidence, are usually many contingencies. And the last contingency is not removed until the judgment is actually and finally rendered. It cannot therefore be maintained that every contingency that might defeat the rendering of judgment, must first be removed before a lis pendens can have any operation. We think a lis pendens was created by the service of the summons upon Warner. But it is claimed however by Dresser, that such lis pendens was destroyed by the subsequent failure of plaintiff Wood to commence to obtain service upon Mowry and Hawkins within sixty days after the filing of the petition. (Code, § 81.) But Dresser -purchased the mortgage in twenty-three days only after the petition was filed, and while the lis pendens was unquestionably (so far as this question is concerned) in full force and operation. And therefore Wood’s laches, in not commencing to obtain service on Mowry and Hawkins until sixty-three days had elapsed after the petition was filed, instead of within sixty days, as he had an undoubted right to do, could not have misled Dresser to his injury. We do not think that the three days laches of Wood destroyed the lis pendens already created and existing. But it is also claimed by Dresser that said action was commenced without any authority from Wood, and therefore that ^le proceeding could not constitute a Us pendens. But the record shows that “some days after said acf¿on was commenced,” Wood ratified the same. How many days thereafter, is not shown. It evidently could not have been weeks however, or the record would have said “ weeks,” instead of saying “ days.” And it could not have been more than seventeen days at most, for the following reasons: -On November 4th the petition was filed and service made on Warner, and the Branscoms. On November 16 th Warner filed a motion to set aside the service, and quash the summons. And on November 21st, just seventeen days after the petition was filed, this motion was taken up for hearing, and Wood appeared in the court to contest the same. It is true, Wood’s appearance was by'counsel, but there is no pretense that this appearance was unauthorized. The court over ruled the motion. Now, by way of digression, was not this an adjudication by the court that the service on Warner was good? And the court had jurisdiction both of the subject-matter of the motion, and of Warner, who made the motion. That is, the court had jurisdiction of Warner for the purpose of adjudicating upon this motion, for Warner voluntarily appeared for this purpose, and gave the court such jurisdiction. Warner excepted to the decision of the court upon this motion, and made a case for the supreme court. This decision was made on November 21st, and in six days thereafter, on November 27th, the mortgage was assigned by Mowry and Hawkins to Dresser. We suppose that no one will question the power of Wood to ratify and make his own whatever said attorneys had done for him in the way of bringing said suit. And we suppose no one will question the binding effect of the suit after its ratification. The suit was ratified by Wood before the mortgage was transferred to Dresser; and Warner, one of the mortgagees, well knew of the ratification; for only six days before the assignment was made he had had the contest with Wood over the service of the summons. Dresser also claims that Wood did not sufficiently plead in this action the lis pendens of the other action. He set forth *n action in his answer to Dresser’s petition the rendition of the judgment in the other ac£jon> He also sets forth in his answer that at all times up to the rendition of said judgment, and since, Warner, Mowry & Hawkins were the owners of the Dresser mortgage. These facts, if true, certainly constitute a good lis pendens. Indeed, it is not necessary that they should all be true, or wholly true, in order to constitute a good Us pendens. Suppose, for instance, that instead of Warner, Mowry & Hawkins owning the mortgage up to and after the rendition of the judgment, as pleaded, they merely owned it up to and after the time when the suit was actually pending against Warner, as was the fact, still the Us pendens would be sufficient. We think the answer was sufficient. And besides, all the parties tried the case on the assumption that the question of whether a Us pendens existed or not, was properly raised by the pleadings in the case; and therefore, even if it should now be found that any one of the pleadings was technically defective in this respect, still we should not reverse the judgment of the court below merely for that reason. Parties must generally raise such questions before they come to this court. If any objection had been made in the court below, the pleadings would undoubtedly have been made sufficient if they were not already sufficient. The judgment of the court below is affirmed. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: This was an action on a promissory note and mortgage. The issues were made up by petition, answer, and reply. Afterward the parties agreed upon the facts of the case, and submitted the case to the court below for judgment upon an agreed statement of facts. The court however, instead of finding the facts as agreed to by the parties, and rendering judgment thereon, made findings of its own, differing in form if not in substance from the facts agreed to by the parties, and then rendered judgment upon its own findings. Of course the court below erred. The,court below had no evidence upon which to make findings of fact differing from the facts agreed to by the parties, and it should have rendered the judgment upon the tacts as agreed to by the parties. The latter part of § 559 of the civil code provides, that, “ In cases decided by the supreme court, when the facts are agreed to by the parties, or found by the court below, or a referee, and when it does not appear, by exception or otherwise, that such findings are against the evidence in the case, the supreme court shall send a mandate to the court below, directing it to render such . , . , - , , , judgment m the premises as it should have rendered on the facts agreed to or found in the case.” This section tells us what to do when the facts are agreed to, or found; but it does not tell us what to do when all the facts are agreed to, and all found. If however the facts agreed to, and those found, were precisely alike, as they in fact ought to be, then there would be no difficulty in determining what should be done in the case. But the difficulty arises when the facts agreed to and the facts found differ from each other. In such a case we think we should follow the facts agreed to, and wholly ignore the facts found. We think this has been substantially decided in the case of the Kansas Pacific Rly. Co. v. Butts, 7 Kas. 308. The parties certainly ought to have the right to agree upon the facts of their case, and they certainly ought to know better what the facts of the case are than the court. We presume however that the facts found in this case are substantially the same as the facts agreed to, but as it would require considerable labor and study to determine the matter we have chosen not to give the subject any investigation, but pass at once to the facts as agreed to by the parties, and decide the case upon those facts. The agreed statement shows among others the following facts: On October 9th, 1866, L. F. Staples died intestate, leaving certain lands in Franklin county, which he owned at that time. In January 1867 the plaintiff, James W. Evans, was duly appointed administrator of Staples’ estate, and in December-1868 the probate court duly authorized the plaintiff to sell said lands. During the month of February 1870 negotiations originated between the plaintiff and the defendants George Brown and David Brown. During these negotiations it appears that “to induce the said Browns to purchase said lands the said Evans assured them that the said lands were free and clear of all incumbrances, and further assured them, though not in writing, that if said •lands were not free and clear of all incumbrances he would make them so, and that he further assured them that the taxes on said lands had all been paid.” Said Browns relied upon these assurances, and in pursuance thereof purchased said land, paying therefor $2,000 down, and agreeing to pay $1,000 more in two years. On March 17th 1870, the deed from the administrator to said Browns for said land, and the note and mortgage from Browns back to the administrator for $1,000, the balance of said purchase-money, were executed. At the time of said sale the taxes on said lands for the years 1868 and 1869 had not been paid, but still remained due and unpaid. The lands had at that time already been sold for the taxes of 1868, and were again sold in May 1870 for the taxes of 1869. The administrator continued to neglect and refuse to pay said taxes, although he had plenty of funds belonging to the estate, both before and after said sale, with which he could have paid them if he had chosen to do so. May 20th 1872 said Browns paid said taxes, which, with the penalties, interest, and costs, amounted to $197.28. In August 1872 the plaintiff Evans commenced this action on said note and mortgage. The defendants answered, setting up the payment of said taxes as a partial defense to the action, and the plaintiff replied setting forth a general denial. In November 1873 the case was submitted to the court below for decision and judgment on said agreed statement of facts; and in December following the court below rendered judgment in favor of the plaintiff and against the defendants for the full amount of said note and mortgage. Was this right, or should the court have allowed the defendants for the amount of the taxes (or some portion ^ same) which they paid? This is the only question now remaining for our consideration, We do not think that an estate of a deceased person can be held liable for the false and fraudulent representa tions of the administrator. (Dunlap v. Robinson, 12 Ohio St. 530; Westfall v. Dungan, 14 Ohio St. 276.) Neither do we think that the estate can be held liable for. the promises of the administrator,, unless the administrator has the right in' law to make such promises, or to perform the thing which he promises. But we know of no good reason why an estate should not be held liable for promises made by the administrator where in law he has the right to make such promises, or where in law it is his duty without a promise to do just what he has promised to do. (May v. Taylor, 27 Texas, 125; Moore v. Moore, 22 La. An. 226.) The. main question then in this -case is, whether the administrator Had the right under the law, either to make the promise he did make, or to pay said taxes whether He made a promise to do so or not'. That he made the promise in substance to pay them, is unquestioned. Unpaid taxes levied on lands are an incumbrance thereon. (Stewart v. Clark, 8 Kas. 210.) And the administrator agreed, that if said lands were not free and clear from all incumbrances, he would make them so. The only question then left is, whether it was the right or the duty of the administrator under the law to pay said taxes. We think it was both his right and duty. Section 137 of the tax law (Gen. Stat. 1062) is some evidence that it was both. Certainly, if an administrator needs the lands of the estate with which to pay debts, it is as much his duty to pay all legal charges that may accrue .thereon until he sells them, as it is to pay any charges on personal property for the care, preservation, and protection of the same while it remains in his custody. Upon general principles the administrator must have power to keep, preserve, and protect all property, real and personal, placed in his hands for any specific purpose, and must have power to use the funds of the estate to prevent the destruction, loss or deterioration in value of said property. But the latter part of § 40 of the tax law (Gen. Stat. 1034) seems to make it plain that the administrator should pay the taxes when he sells the land. It reads as follows: “Where any real estate shall be sold at judicial sale, or by administrators, executors, guardians, or trustees, the court shall order the taxes and penalties, and the interest thereon, against such lands, to be discharged out of the proceeds of such lands.” This provision, when applied to sales of lands by administrators, includes all unpaid taxes which have accrued against the lands, whether they have accrued béfore or after the death of the deceased owner; and includes all unpaid taxes which have not yet been merged into tax titles; and as the lien on real estate for taxes is paramount to all other liens or debts, it would seem that the taxes should be first paid out of the proceeds of the sale of the lands. It will be presumed that the order required by the foregoing section was made, and properly made; for, until the contrary is shown, it will be presumed that the probate court did its duty. The order required by said section should be made at the time that the probate court makes the order confirming the sale of the land. But whether either of said orders was in fact made, is not affirmatively shown by the record brought to this court. But even if said first-mentioned order were not in fact made, still we do not think that the omission would materially affect the substantial rights of the defendants. It was not their duty to make the order, nor to see that it was made; and until the whole transaction is finally closed up, we do not think that they would waive any of their substantial rights by suffering the omission to make the order to continue. But it is claimed that said provision in said § 40 has been impliedly repealed by §§ 132, 133, and 134 of the act concerning executors and administrators. (Gen. Stat. 457.) Now, repeals by implication are never favored in law. Besides, all these sections were passed by the same legislature; and §§ 132, 133, and 134 were passed only one day after § 40. It can therefore hardly be supposed that the legislature intended to repeal said provision in said § 40. And the intention of the legislature must govern whenever that intention can be discovered. We think however that said sections may all have force by a fair, reasonable, and liberal construction; and if so, then of course said provision in § 40 has not been repealed. This view of the law certainly subserves the ends of justice in this particular case. This cause will be remanded to the court below with the instructions that the judgment below be modified by deducting therefrom the sum of $197.28, with interest thereon at the rate of seven per cent, per annum from May 20th, 1872; and the defendant in error will pay the costs of this court, All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: This was an- action on an alleged parol contract entered into between the First National Bank of Fort Scott, and the firm of Kohn & Weil. The alleged contract was made on the part of the bank by B. P. McDon aid, its president, and on the part of Kohn & Weil by Jacob Weil, a member of the firm. At the trial of this case in the court below, both McDonald and Weil testified with regard to what said contract was; and there was but very little if any other evidence with reference thereto. McDonald and Weil differed in some respects with regard to the terms of the contract. But as the whole case was fairly submitted to a jury, and as the jury found a general'verdict in favor of the bank, and against Kohn & Weil, we must now presume that the contract was just what McDonald testified that it was. The jury made no special findings, and there is nothing else in the record than what we have mentioned that would tend to impeach the general verdict of the jury. Then, upon the theory that the contract was just what McDonald testified that it was, the principal facts in the case are substantially as follows: During the winter of 1872, Kohn & Weil, of Leavenworth, were general dealers in hides, wool, etc., and William Euhman was their agent for such business at Fort Scott. Weil went to the bank of the plaintiff below, and told McDonald that Euhman was going to purchase hides, etc., exclusively for their firm, and ship the same to Taussig, Livingston & Co., St. Louis, Missouri; and in order to obtain funds for such purpose, Euhman would draw drafts on Taussig, Livingston & Co., not to exceed $1,500 at any one time, and that if the bank would cash such drafts they, Kohn & Weil, would be responsible for their payment. McDonald, for the bank, agreed to cash said drafts. Afterward Euhman drew the following draft, to-wit: “$1,000.00. Fort Scott, February 17th, 1872. “ Pay to the order of First National Bank, Fort Scott, One Thousand Dollars, value received, and charge same to account. * W. Euhman,” “ To Taussig, Livingston & Co., St: 'Louis.” The bank cashed this draft, then sent it to St. Louis, where it was presented to Taussig, Livingston & Co., who refused to pay it. It was then duly protested and sent back to the bank at Fort Scott. The bank then commenced this action against Kohn & Weil, asking judgment for the amount of the draft, with interest, protest fees, damages, and costs. The facts are all' fully set forth in the plaintiff’s petition. And therefore, if the plaintiff may recover at all, if the bank has any cause of action against Kohn & Weil on the foregoing facts, the plaintiff may recover in this action. The objections to a recovery seem to be about as follows: lst.-No action can be maintained against Kohn & Weil on the draft, for they are not parties thereto, either as drawers, acceptors, or indorsers. 2d.-No action can be maintained on the parol contract, because, first, it does not purport to make Kohn & Weil acceptors of the draft, and could not, if it did; for an acceptance, or agreement to accept, must be in writing; (Gen. Stat. 115, §§ 8, 9, 10;) second, the contract is void, being in contravention of § 6 of the statute of frauds, (Gen. Stat. 505,) which requires that all promises to answer for the debt or default of another shall be in writing. There are perhaps some other objections made, but they are based upon what counsel think the facts ought to be, and not upon what the record actually shows them to be. For instance, counsel for Kohn & Weil would take the parol contract as Mr. Weil testified that it was, while we must take it as Mr. McDonald testified that it was. We do not think that any of the objections, or all of them taken together, are sufficient to defeat a recovery. In order to hold Kohn & Weil liable, it is not necessary to consider them as parties to said draft. They -were certainly not parties on the face of the draft, and yet their agent was; and generally, where an agent does business for an unnamed principal, he makes the principal as well as himself liable. (Wolfley v. Rising, 12 Kas. 535; Butler v. Kaulbaek, 8 Kas. 668, 674, et seq.) No one claims that Kohn & Weil were acceptors of the draft, or that they ever agreed to accept it. Taussig, Livingston & Co. are the only persons who could have accepted the draft, before it was dishonored, and no one would suppose that a contract would be made before a draft were drawn for any person to accept such draft. “Supra protest.” Said parol contract is not void as being in contravention of § 6 of the statute of frauds. (Townsley v. Sumrall, 2 Peters, 170,: 181, Í82.) It is an original promise of Kohn & "Weil, that they will pay their own debt contracted by their agent Ruhman, if Taussig, Livingston & Co. do not pay it. ' The bank took judgment in the court below for merely the amount of money paid out by the bank on the draft with seven per cent, interest per annum. This judgment will be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: This was an action brought by the defendant in error in the district court of Saline county, to settle up a partnership between himself and Carlin. The history of the case is somewhat novel. First, a jury was impanneled to whose decision was referred the terms and duration of the partnership; then the matter was referred to' a referee, to state the account between the partners; and finally, a second jury was impanneled to pass upon certain claims of Carlin for damages resulting from breaches of the partnership contract. The novelty, or perhaps more correctly, the rarity of this triple proceeding, is no warrant for presuming it erroneous. Doubtless the entire case might have been submitted tó a single jury, or referred to a single referee; and probably iñ most cases such is the better course to pursue. But still we think the course actually pursued fully warranted by the statute. Section 266 of the code, Gen. Stat. 680, provides for the manner of trial of the issues in certain cases, not including however those like the one before us. Section 267 then declares, that “all other, issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by a jury, or referred as provided in this code.” The court, under this section, could have tried the entire case, submitting all the issues, or any one of them, to a jury, or referred all or any one to a referee. When the case was called for trial, under the power thus granted, it submitted two of the issues to a jury, reserving the further disposition of the case for subsequent consideration. Plainly, whatever might transpire thereafter, there was no error in this. It ivas within the clearest letter of the statute. These issues having been settled by the verdict, there remained the accounting between the partners, and the claims for damages. The case stood for further consideration precisely as though the two issues had been settled by the pleadings, instead of by the verdict. And thus standing, the court had power to refer any issue or issues to a referee. And the same may be said, after the referee had disposed of the account between the partners. It is insisted however, that this case does not come within the purview of the section quoted; that indeed the petition fails to state facts sufficient to-constitute a cause of action, and that therefore the demurrer filed to it should have been sustained. Here too we must differ with counsel. The petition alleged in substance the partnership, giving a copy of the written contract therefor; that the plaintiff paid in as capital a certain sum, the time of the commencement of the partnership, and of its termination; that during its existence plaintiff paid in for expenses and debts a large sum of money and property; that he had often sought a settlement with defendant, but that defendant refused to come to any settlement, and that upon such settlement a large balance would be found due plainti on account of their partnership dealings. The written contract provided that the parties should enter into partnership in the stock business, to include all their property-shown in their account books, and that once in three months the books should- be posted and the party having the most capital invested should receive interest on the excess at ten per cent. The specific objection made is, that “it does not appear that the defendant ever had one dollar of partnership funds, or possession of a hoof of the stock.” And on the authority of Spear v. Newell, 2 Paine C. C. 267, it is claimed that “the action of account does not lie in favor of one partner against another who is not shown to have received something, and have some accounts to render.” It will be noticed that the objection is, not that the petition is not definite and certain, which objection could only be reached by motion, but that conceding the facts to be true, no matter how broadly and in general terms stated, no right to relief is shown. Here it appears that a partnership was formed; that the plaintiff contributed largely in money and property to it; that it was terminated, and that upon an adjustment of the partnership matters a large amount would be due the plaintiff from the defendant — and also by plain implication that the partnership was not simply a joint ownership of a single article, or a joint venture in a single transaction, but involved a number of chattels, and a series of transactions. If those be the facts, has the plaintiff no right to relief? We think the demurrer was properly overruled. ' It may be remarked, that when the question came before the court as to the manner of trial, it had the statements in • the answer, as well as those in the petition, from which to determine the nature and extent of the issues, and from these it properly held that the case was one whose manner of trial it could order as it did. A third matter- of objection is, that the verdict of the first jury was incomplete in not finding all the facts established by the evidence. It is sufficient answer to this, that it responded to the questions submitted to it by the court, and that there was no application to have the jury respond more fully, or find any other or further facts. Again, it is insisted that the court erred in its charge to the jury on the last trial. Counsel for Carlin thus state the question: “Then we have this state of facts: Donegan and Carlin were to keep 315 head of cattle on section 3, or that vicinity, in McPherson county, Donegan agreeing to furnish the means to carry on the business successfully. When, the winter sets in, Donegan turns in 200 of his own cattle, and in February the hay gives out, and no means to furnish more. The cattle are moved 20 miles by Donegan, against the wish of Carlin, and the advice of the foreman; the move results in damage.” Upon this the court charged — “but if you should believe that at the time the plaintiff, Donegan, determined upon the moving, and did move them, if he did so at all, there was such a condition of things and circumstances as would reasonably raise a question as to whether they ought to be removed or not, and that Donegan used his best judgment, in good faith, in deciding such question, then he would not be responsible, though loss might occur, unless such act should show gross negligence or ignorance.” Again: “ It is for you to say whether or not Donegan, in determining as to whether he should move the cattle or not upon any of the times mentioned in the testimony, was guilty of ignorance, as I have above defined it, and whether in the execution of the movement he was guilty of gross negligence.” The use of the adjective “gross,” in the last clause of these two instructions, is claimed to be erroneous. Donegan, it is insisted, is liable for all losses resulting from ordinary negligence in the management of the business of the partnership. The court followed this charge with a definition of gross negligence, and a correct one too, so that the jury must have gathered that if Donegan acted in good faith, and upon his best judgment, in determining upon the removal, he would not be responsible for losses resulting therefrom, although in carrying out such removal he omitted the care and attention which men of ordinary prudence would exercise in such a case. We do not so understand the law. Nor do we think from other portions of the charge the court really intended to so inform the jury. Elsewhere the law was laid down correctly, and the jury were informed that each, partner would be “ held responsible for fraud, negligence, etc.,” and that “the degree of care and diligence that partners are generally held to between themselves is such care and diligence about any transaction as men generally of common or average care and prudence would exercise.” Such we suppose to be a correct statement. Each partner must not only act in good faith, but must also exercise ordinary care and prudence. Parsons on Partnership, pp. 223, 224. The omission of such ordinary care and prudence, is ordinary negligence; and a pártner is responsible for losses resulting from ordinary negligence. For this error the judgment must be reversed. It will be unnecessary to disturb the verdict of the first jury, or the'report of therefereé upon the account. No error is shown as to them, and they should stand; but the case will be remanded with instructions to set aside the judgment, and the verdict of the last jury, and to proceed further 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.: The question in this case is as to the priority of certain liens. The matter’ was tried before a referee, who filed his report, with findings of fact and conclusions of law. He gave plaintiff in error priority over Barnwell, defendant in error. The district court, however, upon the facts as reported by the referee,'awarded priority to Barnwell. No objection’was made by plaintiff in error to the referee’s report, and no motion made by him to set it aside. The facts therefore as found by the referee, are beyond question, and the only matter for consideration is the judgment required upon such facts. The district court was not bound by the conclusions of law of the referee, any more than this court is bound by the conclusions of the district court. It was the duty of that court, upon examination of the facts found, to see that the proper judgment was entered upon them, whatever might have been the conclusions of the referee, as it is the duty of this court upon a reexamination to see if there has been any error in the conclusions and judgment of that court, and if so to direct the entry of the proper judgment. Which lien was prior? Barnwell claimed a mortgage; Martsolf a mechanic’s lien. Barnwell’s mortgage was executed and recorded August 21st, 1871. Martsolf’s 'contract for work was executed, and his work commenced, August 23d, 1871. Upon this alone, Barnwell would have unquestioned priority. As against this, it is claimed that, prior to the execution of the mortgage there was an understanding between the mortgagee, the lot-owner, and Martsolf, by which Martsolf was to erect a building, and the mortgagee was to advance to the lot-owner the money needed to pay for the work as it progressed, and that the mortgagee had actually drawn up the contract for the work between the lot-owner and Martsolf; and that from that understanding Martsolf had a right to suppose, on the 23d, when he executed his contract and commenced work, that no money had actually been advanced,, or mortgage executed. We fail to appreciate the force of this argument. It does not seem reasonable that a lot-owner would sign a contract for the construction of a large building, (in this case a hotel,) before he either had the money to pay for it, or had perfected arrangements to obtain it. Martsolf then ought to have presumed, if he was acting upon presumptions, that if money was to be borrowed the security therefor would be perfected before the. building contract was signed. But the rights of these parties do not rest upon presumptions. The mortgage was on record, and Martsolf was chargeable with notice of its existence. He could acquire no rights against it, or in precedence' of it. If doubtful about payment, or unwilling to risk the security of a second lien, he could decline the proposed contract. Again: It is said that the money was to be advanced as the work progressed, and that in fact only a small portion was advanced prior to the commencement of the work, and that therefore to the extent of such prior advancement alone could Barnwell’s mortgage be preferred to the mechanic’s lien. In this we think counsel are mistaken. The mortgage was for a single, fixed amount, and contained no provision for future advances. Now, if it be true, that equity will look' behind the face of the mortgage, and date the liens from, the times of the several advances of money by the mortgagee, (and upon this question we express no opinion,) it will also upon the same principle date the mechanic’s liens from the times of furnishing material and doing work. If the one can claim a lien only from the time of paying over his money, surely the other can claim his only from the time of supplying material and doing work. At such times only does either mortgagee or. mechanic part with, or mortgagor and lot-owner receive, value. And if this is the test of lien, it must be so for both alike. Now it does not appear that Martsolf supplied any material, or did any work for which he did not receive pay, or for which he claimed a lien, prior to the last advance of money by the mortgagee. Under those circumstances he is in no position to claim that his entire lien should be referred back to the date of the commencement of his work, and the mortgagee’s be distributed along the dates of the several advances of money. Whether therefore we regard the dates of the liens of the two parties from either a legal or an equitable standpoint, the mortgagee must be preferred to the mechanic. It seems to us therefore, that there was no error in the rulings of the district court, and the judgment must be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: The only question in this case is, who owns the land in controversy, Marshall Barry, or Mary Ellen Barry? Originally Abraham Barry owned it, and whjle so owning it he married Mary Ellen Barry. Afterward, and on March 7th 1873, Abraham Barry made a will, and by said will devised one-half of all his real estate to his nephew, Marshall Barry. His wife, said Mary Ellen, neither assented nor dissented as to this will. On October 11th 1873, said Abraham died, without issue. Said will was duly probated. The widow, Mary Ellen, then refused to accept under the will, and elected to take under the statutes. She now claims to own all the land which belonged to her husband Abraham Barry, at the date of his death; and Marshall Barry claims to own one-half of the same. The court below decided in favor of said Mary Ellen. We think the court below decided correctly. Marshall Barry has no interest in the land except what he gets under the will. Hence, we must look to the law of wills to see what he does get. We would first say however, that if Abraham Barry had died intestate, his widow would have taken (under the law of descents and distributions) the whole of his estate not necessary to pay debts, and no part of it would have gone to Marshall Barry, or to any one else. (Gen. Stat. 392, 394, §§4, 20.) And if she does not now get the whole of said estate, it is because of said will. Section 17 of the law of descents and distributions, (Gen. Stat. 394,) reads as follows: “The widow’s portion cannot be affected by any will of her husband, if she object thereto, and relinquishes all rights conferred upon her by the will.” Turning now to the law concerning wills, (Gen. Stat. 1107, et seq.) The first section of said act-concerning wills provides that— “Any person of full age and sound mind and memory, having an interest in real or personal property of any description whatever, may give and devise the same to any person by last will and testament lawfully executed, subject, nevertheless, to the rights of creditors, and to the provisions of this act.” Section 35 provides that— “No man, while married, shall bequeath away from his wife more than one-half of his property, nor shall any woman, while married, bequeath away from her husband more than one-half of her property. But either may consent, in writing executed in the presence of two witnesses, that the other may bequeath more than one-half of his or her property from the one so consenting.” Section 41 provides, that where the widow has not consented to the will she shall be cited to appear before the probate court “and make her election, whether she will accept” under the will “ or take what she is entitled to under the provisions of the law concerning descents and distributions.” Section 42 provides, that — “The election' of the widow to take under the will shall be made by her in person in the probate court of the proper county, except as hereinafter provided; and on the application by her to take under the will, it shall be the duty of the court to explain to her the provisions of the will, her rights under it, and also her rights under the law, in the event of her refusal to take under the will. The election of the widow to take under the will shall be entered upon the minutes of the court; and if the widow shall fail to make such election, she shall retain her share of the real and personal estate of her husband as she would be entitled to by law, in case her husband had died intestate.” It will be seen, that the first section of the act concerning wills is comprehensive, giving to a man the power to devise and bequeath his whole estate, subject however to the other provisions of the act. The 35th section is a limitation of that power, putting one-half of his estate beyond his reach to bequeath, where he is a married man, except by the written consent of his wife. The word “ bequeath” in that section probably means “devise and bequeath.” But it is not necessary now to so decide. Sections 41 and 42 create a further limitation of the power granted by § 1. The first section can operate to its full extent where a man has no wife, or where he gets her written consent. The 35th section can operate where a man has a wife and children. In such a case he can bequeath one-half of his property absolutely, and the other half with the written consent of his wife. The 41st and 42d sections operate where a man has a wife and no child. In such a case he cannot devise or bequeath any portion of his estate except with the consent of his wife. The meaning of these two sections seems very plain. Under the provisions of the law of descents and distributions, a widow whose husband died without issue and intestate, is entitled to the whole of her deceased husband’s estate. (Gen. Stat. 292, 294, §§ 4, 20.) If instead of dying intestate, her husband had previous to his death made a will, then, under said § 41 the widow may elect whether she will take under the will, “ or take what she is entitled to under the provisions of the law concerning descents and distributions” — which, as we have seen, is the whole of the estate. Under § 42 the probate court is required to explain to the widow her rights under the will, “and also her rights under the law” — which, in such a case, is to take the whole estate; and then,- “if the widow shall fail to make such election, she shall retain her share of the real and personal estate of her husband as she would be entitled to by law in case her husband had died intestate.” It will therefore be seen, that a widow whose husband died without issue, will take the whole of his estate in the following cases: 1st, Where he died without making a will; 2d, Where he made a will, but she elects to take under the law; 3d, Where he made a will, but she fails to elect to take under the will. We do not say that this law is right. We express no opinion upon the subject. We do not make the laws, and are not responsible for them, whether they are good or bad. The judgment of the court below must be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: This is a proceeding to review the action of the district court overruling a motion of plaintiffs in error, defendants below, to have satisfaction of a judgment entered of record because of the fact that, after the rendition of the judgment, they had each received a discharge in bankruptcy. The motion was made under §3 of ch. 12 of the Gen. Stat. Looking simply at the letter of that section, and it would seem as though the motion ought to have been sustained; for the language is general, and provides that, “in any case in which any person has been or may hereafter be discharged, * * * and shall produce a certificate of discharge * * * to the court in which any judgment is of record, it shall be the duty of any such court to enter a discharge; * * * and thereafter any such judgment shall be deemed fully discharged and satisfied.” But this whole statute is based upon and in recognition of the United States Bankrupt Law. It does not intend, even if it were possible so to do, to release parties from debts not discharged under that law. It aims simply to enable a party to obtain in the state courts the benefit of the rights granted to him by the federal law. So, though it declares that “in any case,” upon the production of the discharge, it is the duty of the court, etc., it applies only to those cases in which the bankrupt’s dis charge does, as a matter of fact, under the federal law, operate to release and discharge the judgment debt. Any other construction would expose the statute to grave constitutional objections.' The question therefore is, whether this judgment was one which; by the proceedings in bankruptcy, was released and discharged. If it was, the motion ought to have been sustained; if not, the motion was properly overruled. What are the facts concerning the judgment, and the debt upon which it was.based? The action in the state court was upon a promissory note — :was commenced June 11th 1873, and was accompanied by the issue of an attachment. On the same day this attachment was levied upon three lots in Fort Scott. A motion was subsequently made to discharge the levy of the attachment, on the ground that the property attached was the homestead of one of the defendants, and therefore not subject to seizure under either an attachment or execution. But as it appeared upon the hearing that the property did not become a homestead until about the 1st of July, and after the levy of the attachment, the motion was properly overruled. Bullene v. Hiatt, 12 Kas. 98. On the 9th of January 1874, judgment was rendered, and an order made for the sale of the attached property. On the 25th of August 1873, after the commencement of the action in the state court, and after the property had become a homestead, a creditor’s petition in bankruptcy was filed against the plaintiffs in error, and on June 2d 1874 discharges in bankruptcy were granted. -During the pendency of the action in the state court, no application was made for a stay of proceedings on account of the proceedings in the bankrupt court. The plaintiff below never proved his debt in the bankrupt court. Was the attachment dissolved, and the judgment-debt discharged by the proceedings in bankruptcy? The property attached, being the homestead, and exempt under the state law, at the time of the commencement of the proceedings in bankruptcy, did not pass to the assignee in bankruptcy. It remained the property of the bankrupt, free from any control or interference on the part of the assignee. Nor does it seem to us, notwithstanding some decisions in the federal courts to that effect, that the bankrupt took the property as a purchaser from the assignee. The property never •passed away from the bankrupt. It remained his, to all intents and purposes, the same as though no bankrupt proceedings had been instituted. U. S. Revised Stat., §§ 5044, 5045; Rig, Assignee, v. Capital Bank, 2 Dillon, 367; Bump on Bankruptcy, 7th ed., p. 144. We think too, that as this property remains with the bankrupt, jurisdiction to enforce any liens thereon remains with the state court. Whether the bankrupt court has jurisdiction also, and whether it can stay any proceedings in the state court, we are not to inquire, for those questions are not in the case. Rig, Assignee, v. Capital Bank, supra; In re Everett, 9 Bank. Reg. 90; Bump on Bankruptcy, pp. 146, 461, and cases cited. But it is said, that the only lien the plaintiff had was one of attachment created less than four months prior to the commencement of the bankruptcy proceedings, and that the assignment to the assignee dissolved all such attachments, and consequently destroyed any lien. The language of the act is, “and such assignment shall relate back to the commencement of the proceedings in bankruptcy, and by operation of law shall vest the title to all such property and estate, both real and personal, in the assignee, although the same is then attached on mesne process as the property of the debtor, and shall dissolve any such attachment made within four months next preceding the commencement of the bankruptcy proceedings;” (§ 5044.) The subsequent section describes the kinds of property exempt from this assignment. The two sections are of course to be construed together, and the section quoted therefore should be construed as though it said expressly, “shall vest the title to all such property and estate, both real and personal,” as is not exempt from the operation of the bankrupt aet, “although the same” (that is, the unexempt property, the property conveyed,) “is then attached, * * * and shall dissolve any such attachment” — that is, any attach ment on the property not exempt, the property transferred by the assignment to the assignee. We are aware of decisions in the federal courts contrary to these views, and holding that the assignment dissolves all attachments within four months, whether upon exempt property or otherwise: In re Ellis, 1 Bank. Reg. 555; In re Hambright, 2 Bank. Reg. 498; In re Stevens, 5 Bank. Reg. 298. We think however that the just and fair, construction of the act is, as we have given it. As the bankrupt court gets no jurisdiction of the exempt property, it would seem that it should take none over any specific liens upon such property. It may be remarked, that the exempt property in this case is exempt, not as among the articles named in the bankrupt act, but as exempt from seizure under attachment and execution by the state law, and therefore permitted by the bankrupt act to be exempt from its operation. Bump on Bankruptcy, 7th ed., pp. 142 to 147. That which makes this case one sui generis, is the fact, that, at the date of the attachment, the property was not exempt from seizure, but was at the time of the commencement of the bankrupt proceedings. The attachment therefore was good, and created á specific lien upon the property attached. Bullene v. Hiatt, 12 Kas. 98, It remained the property of the bankrupt, and the bankrupt court, not taking the property, did pot disturb the specific lien. Whether, if, after the sale of the attached property, there should remain a balance on the judgment, this balance would be beyond the reach of the bankrupt’s discharge, is a matter we need not now inquire. The question may never arise. As the case now stands, we think there was no error in overruling the motion to enter a discharge of the judgment. The decision of the district court will be affirmed. All the Justices concurring.
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Allen, J. These actions were tried and submitted' together. The questions involved in each case are substantially the same. Both were instituted for the purpose of compelling the Board of Education of the City of Topeka to introduce and use as school text books those selected and adopted by the State School Text Book Commission. Chapter 179 of the Laws of 1897 (Gen. Stat. 1897, ch. 61), providing for the establishment of a uniform system of text books to be used in the public schools throughout the State went into effect on the nineteenth of March. The defendant has refused to adopt and use in the public schools of Topeka a part of the books selected by the State Commission. It claims the right to use other boobs, by reason of contracts entered into by the Board with certain publishers of school books prior to the publication of the School Text Book Law. All of these so-called contracts, except one, purport to liave been entered into between the date of the passage of the act and its publication. It is argued on behalf of the plaintiffs that a number of these contracts -were not, in fact, completed on the eighteenth of March, but it is unimportant whether they were or not. In the returns to the writs the con stitutionality of the law was challenged, but this contention was abandoned at the trial. In order to understand the position of the defendant, it is necessary to briefly review the legislation on the subject of school text books. Prior to 1869, the law required certain branches to be taught in each school district, and also permitted the board, under certain conditions, to provide for the teaching of other branches ; but no provision was made with reference to the selection of textbooks. By section 14 of chapter 86 of the laws of that year, it was provided : “ The district board shall require a uniform series of text books to be used in each separate branch in each school.” By section 15 of the same act the board was required to provide text books, at the expense of the district, for indigent children whose parents were not able to provide them. By section 1, chapter 157, Laws of 1879, section 28 of article 4 of chapter 122, Laws of 1876, was amended to read : “Section 28. The district board, each board of education, and each and every school district board shall require a uniform series of text books to be used in each separate branch of study in each school. But each board shall determine for itself -within six months from the passage of this act the particular series of text books which shall be used, and when such selection of text books shall hereafter be adopted and introduced in pursuance of the provisions of this act by said board, no change shall be made for a period of five years from the date of such introduction of any particular series of text books, unless four-fifths of the legal voters of any such district shall petition for a change in the series of text books adopted,” etc. In 1885, an act was passed authorizing the adoption of a uniform series of text books in each county. The various school districts were authorized to express, at their annual meetings, their desire with reference to such uniformity ; and, whenever a majority of all the districts in a county indicated their desire for such uniformity, provision was made for the election of delegates from each township and each city of the third class to constitute a county text book board authorized to select text books to be used in each branch of study required by law do be taught in the public schools. Section 5 of the act provided : “No text books shall be prescribed in pursuance of the provisions of this act unless the publishers thereof shall have first filed with the county superintendent of public instruction a guarantee of its price, quality and permanence of supply for five years, together with a good and sufficient bond for the faithful performance of said guarantee, conditioned in such sum as the county text book board may determine and approve.” Cities of the first and second class were exempted from the provisions of the act, unless by a vote of their boards of education they decided to join with the county in which they were situated ; in which event they were to be represented on the text book board. On the adoption of county uniformity, no change in text books could be made for a period of five years ; at which time another county text book board might be elected for the same purpose. By this act, the section above quoted from the Laws of 1879 was repealed. This left the law without any provision for uniformity, except in counties taking advantage of the act providing for county uniformity. So the law remained until the act of 1897 took effect. Chapter 179 of the Laws of 1897 (Gen. Stat. 1897, ch. 61) provides for the creation of a state text book commission, and for the selection and adoption by it of a uniform series of text books for use in the public schools of the state. The commission is authorized to receive bids for furnishing text books, and to enter into contracts for furnishing the same. It is then provided as follows : “Section 15. Every contract with any person, company or corporation, publisher or publishers of school textbooks for use in the schools of this state shall be for five years from the date thereof, and no school district board or board of education of any city of the first or second class shall adopt, use, or permit to be used any other school text books than those provided for in this act: Provided, That nothing herein contained shall be construed to prevent the teachers and pupils of this state from using any school text book other than those provided for in this act as reference books in such schools : And provided further, That nothing herein contained shall be construed to apply to the use of school books in branches other than those mentioned in this act, nor shall anything herein be construed to apply to counties now under contract for county uniformity of text books, until said contract or contracts shall have expired, or with school districts or cities of the first or second class having such contract until such contract shall have expired according to the terms which have been agreed to in writing: And provided, At the expiration of such contracts such counties, school districts and cities of the first or second class shall thereafter be governed by the provisions of this act.” The defendant claims exemption from the requirement to use the text books adopted by the State Commission under the second proviso, and on the ground that it has entered into valid contracts in writing within the terms of the language quoted. It is conceded that the City of Topeka is not a party to any system of county uniformity adopted in accoi’dance with the act of 1885. It is also conceded that there is no. express statute authorizing the board of education of a city of the first class to enter into a contract for text books used in the city schools. It may be said further that since the repeal of section 1 of chapter 157 of the Laws of 1879, thex’e has been no law authorizing the adoption of a uniform series of text books by the board of education, xxnless .under county uniformity. The contentioxx is, however, that boards of education in cities have and exercise certain corporate powers, and that the general power conferred on them, “ to make all necessary rules for the government of the schools of the city,” and “to exercise the sole control over the public schools and school property of the city,” includes and implies the power to determine what text books shall be used, and to- make provision for supplying them. It is contended that section 15, above quoted, recognizes the existence of this right, and where it has been exercised, exempts the city from the operation of the act. It will be observed that, if this power has been conferred by the Legislature, it was given without any limitation as to the duration of the contracts or the prices at which books are to be furnished to the patrons of the school. Neither the city nor the board of education, in its corporate capacity, purchases school books. All school books used by the pupils are bought and paid for by themselves, or by their parents or guardians. Even the provision for supplying indigent pupils, which was contained in the act of 1869, seems to have been omitted from the revision of 1876. It is not apparent that the powers of a board of education in a city of the first class, with reference to adopting text books and contracting for the same, were greater at the time of the passage of the act of 1897 than those of any other school district; except that a city of the first class could not be forced into county uniformity without its own consent. The power to make a contract which shall be binding for a term of years on all the private citizens within the city is not to be lightly implied. It is a power that ought to be exercised, if at all, only under the most carefully provided and stringent safeguards. The temptation to enter into improvident, or even corrupt, arrangements is too great to make unrestricted authority of this kind either safe or desirable. But it is said that some meaning must be given to the words excepting from the operation of the law ■“school districts or cities of the first or second class having such contracts until such contracts shall have expired according to their terms” ; that the language is meaningless if no power existed to enter into any such contracts ; and that by the use of this language there is a legislative recognition of the existence ■ of the power. It must be conceded that, in view of the state of the law existing at the time of the passage of the act, the language employed was not happily chosen. It will be noticed, however, that school districts are placed in the same category with cities of the first class. Under the law, they had as much power to contract in the absence of county uniformity as a board of education in a city; that is to say— none at all. Where county uniformity existed, although no formal contract was provided for by law, a guaranty of price and supply and a bond to secure the same was executed. The guaranty and the bond would of course, be in writing, and amount to valid contracts available to the people of the county, and of the city as well, in case the city took advantage of the uniformity established in the county including it. The adoption of county uniformity is the basis from which all the exemptions in the clause quoted start. It seems to have been the purpose of the Legislature to continue the use of books already adopted by counties, until the expiration of the terms provided for in the act of 1885. On the expiration of the guaranties, the act of 1897 takes effect. This construction gives to the proviso all the effect it can have under the law as it stood at the time of the passage of the act. The pretended contracts set up in the answer of the defendant are utterly void, and furnish no defense to this action. It was and is the clear duty of the defendant to cause the course of instruction in the public schools of Topeka to correspond with the system adopted by the State Text Book Commission, and to require and direct the use in the city schools of the text books selected by the commission. A peremptory writ of mandamus will be awarded as prayed for.
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Doster, C. J. The plaintiffs in error, as plaintiffs in the court below, sued the defendants in error, as defendants in the court below, for damages for violation of the following agreement: “ Leavenworth, Kan., July 22, 1892. “Article oe Agreement. — It is agreed and understood between Ryan & Richardson, residents of Leavenworth City, Kansas, and G. Woolsey, P. F. Paul and W. W. Powell, of Bentonville, Arkansas, as follows : That G. Woolsey, W. W. Powell and P. F. Paul agree to buy and pack, in barrels to be furnished by Ryan & Richardson, sound, merchantable, handpicked, shipping apples, of fall and winter varieties, of the crop now growing in Benton and Washington Counties, Arkansas. Said apples to be purchased from growers in above-named counties with .money to be furnished by Ryan & Richardson, and to be by the said Woolsey, Powell and Paul carefully packed in barrels, at the several railroad stations running through said counties designated hereafter by both parties concerned. The apples to be purchased by P. F. Paul, W. W. Powell and G. Woolsey to be hand-picked and sound, merchantable shipping apples. All labor and expense connected with the purchase of said apples, and packing them in barrels, to be at the expense of P. F. Paul, W. W. Powell and G. Woolsey, and when so packed in barrels, to be loaded k. o. b. cars at the several railroad stations, where being packed for shipment to destination as directed by Ryan & Richardson. Said P. F. Paul, W. W. Powell and G. Woolsey to keep a true and accurate account of all moneys expended for apples, and to render an account at such times as may be required by Ryan & Richardson, and to be responsible for the safe-keeping and outlay of such moneys, except such as might be lost by bank failure or in transit; all moneys so furnished by said Ryan & Richardson shall be by Woolsey, Powell and Paul kept entirely separate and apart from their own funds. “ In consideration of services rendered by G. Woolsey, W. W. Powell and P. F. Paul, Ryan & Richardson agree to pay them thirty cents per standard barrel of three bushels, for each and every barrel bought, packed and placed on cars. It is understood that Ryan & Richardson shall furnish barrels to pack the apples in (the barrels to be made in warehouse at Bentonville under control of and furnished by Woolsey, Powell and Paul free of charge), at other points to be furnished by Ryan & Richardson and moneys to purchase the apples, and Ryan & Richardson agree to pay market price for apples, and to meetfair, honestand reasonable competition in the purchase of said apples, and the said Ryan & Richardson shall have the privilege of having a' representative present for the purpose of determining the prices to be paid for daily purchases.' It is understood that the purchase of said apples shall commence as soon as it is deemed advisable by both parties to this contract, when apples can be purchased in sufficient quantities to insure getting a car load in a reasonable length of time, not to ex ceed three days on fall apples. All contracts for apples made prior to commencing to pack, shall be reported direct to Ryan & Richardson, and shall be a part of the business of the season. All contracts made with growers for their apples, for future delivery by them, shall be subject to written or telegraphic consent by Ryan & Richardson, at a stipulated price.” The plaintiffs alleged their readiness and willingness to perform the agreement upon their part, but averred that the defendants failed and refused to perform it upon their part, whereby the plaintiffs were prevented from earning a large sum of money. The District Court sustained a demurrer to the plaintiffs’ evidence. Of this they complain, and bring the case here for review. The material question arises upon the interpretation of the language of the contract sued upon. Do the terms of this contract import a mutual engagement between the parties to it; the one to perform the services and the other to accept and pay for the same? or, is it a unilateral engagement — that is, an engagement by one party only? We feel constrained, after a careful study of the language of the instrument, to hold it to be the latter. It is clear that the first paragraph of the instrument is the engagement of Woolsey, Powell and Paul alone. In that paragraph they agree to buy and pack apples in barrels to be furnished by Ryan & Richardson, but Ryan & Richardson make no agreement to engage their services. In the second paragraph of the agreement Ryan & Richardson agree to pay for the services of Woolsey, Powell and Paul and to furnish money for the purchase and barrels for the packing of the apples bought, and also agree to meet competition in the purchase of apples and to pay market prices for them ; but they do not, even in this last paragraph, in terms engage the services of Woolsey, Powell and Paul. A fair construction of this paragraph can evolve out of it nothing more than an agreement upon the part of Ryan & Richardson to do certain things, conditional upon the performance of the stipulated services by the other parties. It contains no engagement to accept their services or to enter with them upon the business of buying and packing apples. The part of the instrument in question which comes nearest an engagement- upon the part of Ryan & Richardson is the sentence : “It is understood that the purchase of apples shall commence as soon as it is deemed advisable by both parties to this contract, when apples can be purchased in sufficient quanties to insure getting a car load in a reasonable length of time, not to exceed three days on fall apples.” It is alleged that inasmuch as both parties stated their understanding to be that the purchase of apples “shall commence,” it was an agreement upon the part of Ryan & Richardson to allow it to commence ; in other words, an engagement by them of the services of Woolsey, Powell and Paul. It'must be observed, however, that the purchases were not to commence until “deemed advisable by both parties.” The law will not compel Ryan & Richardson to deem anything advisable, nor will it deem things advisable for them. The contract was not to commence purchases when a car load of apples could be obtained in three days, but it was to commence purchases “as soon as deemed advisable by both parties, when a carload of apples could be obtained,” etc. It is true that the verb “shall commence” is modified as to time by the adverbial clause “when apples can be purchased,” etc, but it is likewise modified as to time by the preceding adverbial clause “as soon as deemed advisable by both parties.” The modification of the verb by both these clauses must be taken into account, and the intent of the parties collected out of all the words used by them. So doing, the agreement in question would seem to mean that when a time arrives at which apples can be purchased in such quantities that a car load can be gotten in three days and the parties to the. contract both agree to do so, then purchases shall commence. Other clauses of the instrument in question might be similarly commented upon, and their meaning sought by rules of legal as well as grammatical construction, without extracting, as we think, the idea of mutuality of agreement between the parties. In all probability, the instrument was supposed to be binding upon both sides when* it was signed ; but we can give effect to the intention of parties only through the words they employ. If they do not express themselves in intelligible language the law cannot afford them relief. For illustrations of the rule which requires mutuality of engagement between parties to contracts, see Davie v. Lumberman’s etc. Co., 93 Mich. 491; Vogel v. Pekoc, 157 Ill. 339; Campbell v. Lambert, 36 La. Ann. 35; Dayton etc. Turnpike Co. v. Coy, 13 O. S. 84; Stensgaard v. Smith, 13 Minn. 11. The judgment of the court below is affirmed. Johnston, J., concurring.
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Doster, O. J. This case comes to us upon a certificate of division of the judges of the Court of Appeals of the Northern Department. The firm of Jordan Brothers recovered'judgment against Mrs. S. C. Sherman, a merchant. Execution upon this judgment was issued to the plaintiff in error, a constable. He levied it upon goods in possession of the defendant in error, which thereupon brought suit against him for dam ages for conversion, alleging itself to be the owner of the property. To its petition the plaintiff in error' defendant below, filed an answer justifying himself as constable ; denying the plaintiff’s ownership ; and alleging that its only interest in the property was by virtue of a mortgage executed to it by Mrs. Sherman, which had been fully satisfied by a sale of a sufficient amount of the mortgaged property to pay the debt, but that the residue of the property, including the portion levied upon, had been retained in the possession of the mortgagee under the fraudulent pretense that the mortgage debt remained unpaid. To this answer the defendant in error, plaintiff below, filed a reply admitting its possession of the property as mortgagee only, and alleging the making of an agreement by it with Mrs. Sherman to hold and sell the property, not only for the payment of the mortgage debt, but also for the payment of such orders as she might give upon it in favor of her creditors ; that it had accepted and agreed to pay a large amount of such orders so drawn upon it, and that the mortgage debt and the accepted orders exceeded in amount the total value of all the property covered by the mortgage. This reply also alleged the pendency of an action brought against plaintiff by another person claiming the ownership of the property, for damages for its conversion, which action, it is said, if finally decided adversely to plaintiff, would subject it to the payment of the full value of all the goods. Judgment was rendered in favor of the plaintiff below, from which judgment the defendant below prosecutes error to this court. The questions necessary to be noticed were raised in proper form by the defenddant below, at the trial and upon a motion for a new trial. The District Court erred in admitting the evidence of the plaintiff below under the pleadings in the case. The’reply constituted what is called a “departure” in pleading. “A departure is the statement of matter-in a reply, replication, rejoinder or subsequent pleading, as a cause of action or defense, which is not pursuant to the previous pleading of the same party, ahd which does not support and verify it ” ; and a test of departure in a reply is the question whether evidence of the facts alleged in it would be, if received, contradictory of the allegations of the petition. Encyc. Pleading and Practice, vol. 6, 460, 462; Bliss on Code Pleadings (3d ed.), § 396; Baker v. Long, 17 Kan. 341. The petition alleged ownership, positive and unqualified, in the plaintiff. The reply admitted the ownership to be that of a mortgagee, which is ownership qualified-and special. The allegations of these pleadings required for their support an entirely different character of evidence. The reply therefore was not pursuant to the petition and did not support and verify it. In addition to these considerations, if the question be viewed as one of evidence merely and not strictly as one of pleading, the position of the defendant in error is untenable. In Kennett v. Peters (54 Kan. 119, 37 Pac. 999), it was held that if the plaintiff in an action for the conversion of personal property is not the absolute owner of the property he must set forth in the petition his special ownership or interest in it, and that evidence of a qualified or special ownership will not support a claim of ownership absolute. This decision was followed and affirmed in the recent case of Ward v. Ryba (58 Kan. 741, 51 Pac. 223). The rule of these cases is directly applicable to the pleading and evidence of this plaintiff in this case. The questions we have been considering were raised by plaintiff in error, defendant below, under an objec tion to the introduction of evidence under the reply. This we hold to be proper. The general rule is that an objection to a pleading upon the ground that it constitutes a departure is to be taken advantage of by demurrer or by motion to strike out for insufficiency of allegation. Encyc. Pleading and Practice, vol. 6, 468. If a demurrer or motion will lie, an objection to evidence under the insufficient pleading may also be made. The ground of such demurrer or motion is that proof of the facts alleged, if made, would be unavailing in law to establish a claim or defense. An objection to evidence is bottomed on the same ground. The reply of plaintiff below did not admit the allegation made in the answer that a sufficient amount of the mortgaged goods had been sold previous to the constable’s levy to satisfy ^ the mortgage debt and costs of sale. However, the evidence of the cashier of the defendant in error practically admits that such was the case. If such were the fact, the defendant in error could have no standing to contest the constable’s right to the property, however properly its pleadings might have been constructed. “ When any mortgage of personal property shall have been fully paid or satisfied, it shall be the duty of the mortgagee, his assignee or personal representative, to enter satisfaction or cause satisfaction thereof to be entered of record,” etc. General Statutes 1897, ch. 120, § 9. The rationale of the decisions in Sims v. Mead (29 Kan. 124), Bragunier v. Iron Co. (41 id. 542, 21 Pac. 640), and Mannen v. Bailey (51 id. 442, 32 Pac. 1085), is, that when a mortgagee of personal property has realized by a sale of it a sufficient amount to satisfy the mortgage debt and expenses of sale, the unsold residue is subject in his hands to seizure upon execution to satisfy the mortgagor’s other debts ; and such residue of property cannot be withheld from the mortgagor’s judgment creditors by an agreement made between the mortgagor and mortgagee to apply it to the claims of the general creditors of the mortgagor. Whether the evidence established the claim of the defendant in error that the mortgage debt had been satisfied at the time of the levy by him, may admit of a slight doubt in point of fact; but the non-admissibility of evidence on behalf of defendant in error in support of its claim of right to hold the residue of the mortgaged property for the purpose of selling it and paying the orders drawn by Mrs. Sherman in favor of her other creditors, admits of no doubt in point of law. It hardly needs to be said that the pendency of the controversy between the defendant in error and the other claimant of the property, who, as before mentioned, had sued the defendant in error for its conversion, constitutes no part of a cause of action against the plaintiff in error. Even had the existence of such controversy been set out in the petition, it would have been unavailing. For a plaintiff in an action for damages for the conversion of personal property to ground his case upon the fact that he had been sued for conversion of the same property by another person, would indeed be an extraordinary pretense of legal right. An objection was made to the consideration of the pleading first' noticed, on the ground of some obscurity in the record as to an amendment of the petition ; but it was not well taken. The judgment of the District Court is reversed, with directions tó award plaintiff in error a new trial, and for such proceedings in conformity to this opinion as may be proper.
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Doster, C. J. The only facts necessary to be stated to disclose the decisive question in this case are :. That R. M. Manley was a devisee under the will of George Manley, deceased, and entitled to a one-seventh interest in his estate ; that he was personally indebted to George Manley, in his lifetime, in the sum of $78,-152, and confessed a judgment for that amount in favor of William H. Risk, the executor of the estate ; that at that time he was insolvent; that he was also at that time indebted to the Central Savings Bank, of St. Joseph, Missouri, in the sum of $10,655 on promissory notes he had executed to it as surety for the Kansas Trust and Banking Company; that this Company was also at that time insolvent; that the Central Savings Bank recovered judgment upon the debt due to it, but at a date subsequent to the confession of judgment in favor of the George Manley estate; that R. M. Manley has succeeded William H. Risk as executor, and that he, as executor, and the Central Savings Bank are each claiming a prior right to satisfaction of their respective judgments out of the individual property of R. M. Manley. The question at issue relates to the validity of the judgment by confession, in favor of the estate, as against the judgment in favor.of the Central Savings Bank. The District Court, upon this question, decided in favor of the Central Savings Bank. Error i§ prosecuted to this court. The decision was correct. R. M. Manley was the owner of a one-seventh interest in the estate in the-hands of William H. Risk as executor. When he confessed judgment in favor of Risk, he confessed judgment in favor of himself. That judgment became by law a lien upon the real estate of R. M. Manley. The act of confessing it was the giving of a lien to himself upon his own property for. the security of a debt due to himself. It requires no argument to demonstrate that Manley could not do these things directly; that is, he could not confess a judgment in his own favor which would operate as a lien upon his own land for his own security. Neither could he do it indirectly, in the name of an agent or trustee, as the judgment creditor. When done by him, as it was, in that way and in the name of that kind of person, it operated as a secret trust in his own favor. But it operated no more effectually to his own interest and advantage than though it were done openly and directly. Though done secretly and indirectly, the law reprehends it as much as though it had been done openly and directly. The cases are numerous and emphatic to the point that conveyances of property and other like acts performed by insolvent debtors, by means of which reservations of advantage are secretly secured to themselves, are inoperative and void as against existing creditors. In Bump on Fraudulent Conveyahces (4th ed.), § 174, it is clearly and tersely stated, that while a debtor may prefer a creditor— "The terms upon which the property is transferred must be free from all engagements to deliver any portion \>f it for the benefit or advantage of the debtor, for the law will not tolerate any contrivance whereby the debtor devotes his property to certain creditors in preference to the rest, with the secret reservation of a possible interest to himself. If the preference, therefore, is merely a temporary arrangement to prevent a sacrifice of the property and preserve the rights of all to ■an equal distribution, with an understanding that the property shall constitute a part of an assignment to be subsequently executed, it is fraudulent. Creditors also are not allowed to gain a preference by means of a secret undertaking to hold a part of the properly for the benefit of the debtor. The law looks with great jealousy upon the manner of giving preferences, and denounces all departures from go'od faith, and requires that the parties shall not secure any covert advantage to the debtor in preference of his creditors.” The same doctrine is again stated and illustrated by the same writer on pages 208-212. It has been ap plied by the courts in very many cases. See, Connelly v. Walker, 45 Pa. St. 449; McClurg v. Leckey, 3 P. & W. (Pa.) 91; White v. Graves, 7 J. J. Marsh. (Ky.) 524; Sims v. Gaines, 64 Ala. 396; Moore v. Wood, 100 Ill. 454; Beidler v. Crane, 135 id. 98; Bostwick v. Blake, 145 id. 85; Young v. Heermans, 66 N. Y. 382. The principle of these cases is applicable to a confession of judgment upon a secret trust in favor of the debtor. Had R. M. Manley executed to the executor a mortgage for the security of the debt due to the estate, instead of confessing judgment in favor of the executor, its invalidity as a conveyance upon a secret trust would have been at once recognized. The result is in no wise different because instead of executing a mortgage he executed a confession of judgment by which a lien of another kind in favor of himself was secretly given. The reason in equity for the rule is apparent. That rule has been given legislative effect in sections 1 and 2 of the Statute of Frauds. They read as follows : “1. All gifts and conveyances of .goods and chattels, made in trust to the use of the person or persons making the same shall be void and of no effect. “ 2. Every gift, grant or conveyance of lands, tenements, hereditaments, rents, goods or chattels, and every bond, judgment or execution made or obtained with intent to hinder, delay or defraud creditors of their just and lawful debts or damages, . . . shall be deemed utterly void and of no effect.” Gen. Stat. 1897, ch. 112, §§ 1, 2. In the case of Kayser v. Heavenrich, 5 Kan. 325, it was held that an assignment for the benefit of creditors, one of whom was a firm of which the assignor was a member, was void because in secret trust for the benefit in part of the debtor. But it may be said that the judgment by confession was -not alone upon a secret trust in favor of the judgment debtor ; that it was principally in favor of the other devisees under the will of George Manley. This is true, but the judgment was an entirety. The interest of R. M. Manley in it cannot be separated from the interest of the other devisees. The law will not withhold its condemnation because some innocent person may be prejudicially affected by the sentence which must be pronounced upon the act of the person with whom the innocent were associated. There is no way to separate the bad from the good, and, in such case, as a rule, the law invalidates the whole. In the case of Kayser v. Heavenrich, supra, the precise objection here noted was met, and held to be unavailing. In that case the court, among other things, said : “ It is not denied that a part of the trust for which this assignment was made was for the benefit of the maker thereof, and was so far void, but it is contended that it is only void as to such case, and that the property, assigned must be distributed pro rata among the other persons named as creditors. . . . Every part of the assigned property was held in trust for the payment of this claim for the benefit of one of the assignors. Had a certain definite portion of the property been assigned to pay this particular claim, and the other portions of the estate been designated to pay the other claims, it would have presented a different question, and according to some of the authorities, the void part of the assignment might have been •so held without tainting the whole instrument; but in this case, the whole conveyance was for the payment of this claim for the maker’s use. “It can make no difference that this claim was but ■small compared with the general indebtedness. It •was an essential part of the whole trust, pervading ■every part, as much as though it constituted nineteen-■twentieths of the trust estate. The conveyance was in trust for the maker’s use, and it cannot make any difference that others were interested in the trust when any person, having a right so to do, contests the validity of the conveyance.” But it may be urged that the debt on which judg ment was confessed was bona fide. The court so found, and as to that the finding is conclusive. This fact, however, is immaterial. The fraud does not consist in a lack of consideration for the judgment, but in the secret elevation of the judgment debtor to a position of superior advantage over his creditors. His preference of himself in the name of the executor, is the reprehensible act. Let it be observed that R. M. Manley by his confession of judgment did not prefer the other six devisees, in whose behalf in part the confession was made. Had the judgment been collected in full, no question could have arisen between him and the other devisees. He, as far as concerns them, could have taken his distributive portion of the amount. On the other hand, if the judgment had not been collected in full, the executor would have possessed no power to apply R. M. Manley’s one-seventh portion to the payment of any deficiency due upon the other six-sevenths. In the event of such deficiency occurring, some legal process might be employed by which R. M. Manley could be compelled to make it good to the other devisees out of his seventh interest; but, until compelled to do so, his seventh interest is his own, and hence the confession of judgment in favor of the executor cannot be viewed as a preference of his fellow devisees. In conclusion, it may be said that, in such eases as this, the law ought to uphold the transaction because no actual fraudulent intent existed. Not so, however. If a necessary effect of an act is to put creditors at a disadvantage and at the same time to secure an advantage to the debtor, the law esteems the act to be fraudulent. Kayser v. Heavenrich, supra. The judgment of the court below is therefore affirmed.
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Allen, J. The questions for consideration in this case arise on an order confirming a sale of real estate. Joseph Bushnell and William G. Warden, as executors of the will of Daniel Bushnell, recovered a judgment against the plaintiffs in error for $6997, and for the foreclosure of a mortgage on three lots in the City of Topeka. After the expiration of the stay provided 'for in the judgment, an order of sale was issued, under which the property was sold to the defendant in error, John Bushnell, for the sum of $6000. Motions were made to confirm and to set aside the sale. On the hearing of these motions, the order of sale with the sheriff’s return thereon was introduced in evidence. The return reads : “ On the twentieth day of September, a. d. 1895, I caused a notice to be published in the Topeka Mail, a weekly newspaper printed in said county of Shawnee . . . ~ that I would offer the said premises for sale at the front door of the court house, in the City of Topeka, Shawnee County, Kansas, on the 21st day of October, a. d. 1895, at 10 o’clock a. m.,” etc. Attached to the sheriff’s return was an affidavit of the publisher of the Topeka Mail, showing due publication of the notice of sale in each issue of the paper prior to the day of sale. Affidavits were read in evidence by the defendants showing that on the lots which were sold there was a two-story brick-and-stone building 72 feet front, 65 feet deep, with a basement, divided into three tenements; that these tenements rented for a time at the rate of $1800 a year, and, for the three years next preceding the sale, at $1120 a year. Various witnesses fixed the value of the property at from twelve to sixteen thousand dollars. Against this showing, there was no evidence of value except the price obtained by the sheriff at the sale under consideration. The property was sold in September, 1893, for taxes, which, at the time of the confirmation, amounted, with subsequent taxes, to somewhere near a thousand dollars. The purchaser waived his right to have these taxes paid out of the proceeds. The confirmation was resisted on the grounds that the sheriff’s return was irregular and that the price for which the property sold was inadequate. The district court confirmed the sale without requiring any amendment of the return. The sheriff’s return fails to show that the notice of sale was,published more than once. It merely shows a publication on the twentieth day of September. The return of a sheriff should show what he has done in an execution of the writ, and in case of a sale of real estate, it should show that every step has'been taken in the manner the law provides. This return is defective. It has been held in some states that a sheriff’s return cannot be supplemented by extrinsic evidence. Rand v. Cutler, 155 Mass. 451; Murfree on Sheriffs, § 857. This court, however, seems to have taken the other view in the cases of Thompson v. Higginbotham, 18 Kan. 42, Lamme v. Schilling, 25 id. 92. This is not a collateral attack, in which all presumptions would be favorable to the order of the court, but it is a challenge of the proceedings of the officer at the proper time. The proof shows that the property was sold at less than half its value. Where the purchaser under such a sale would hold property worth-more than twice the price paid by him, he stands on his strict legal rights. If there be any flaw in the proceedings his purchase fails. The defective return of the officer, coupled with the inadequate price, afford sufficient grounds for setting aside the sale. • Jones v. Carr, 41 Kan. 829, 21 Pac. 258 ; Means v. Rosevear, 42 Kan. 377, 22 Pac. 319 ; Wood v. Drury, 56 Kan. 409, 43 Pac. 763. The order of the District Court confirming the sale is reversed, and the cause remanded with directions to set the sale aside. Doster, C. J., concurring.
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Doster, C. J. Willis Brown, J. C. Snodgrass and F. A. Brode, were stockholders in the First National Bank of Seneca, this State. The cashier of the Bank furnished to the assessor a list of the stockholders, as of March 1,1892, including the persons named. Taxes were assessed against the stock of these persons and entered on the tax roll against them. They neglected to pay these taxes. Warrants for collection were thereupon issued to the sheriff. These warrants recited the ownership of the stock by the persons named, the cashier’s return to the assessor of the list of stockholders, the assessment of taxes against the stock and the failure of the stockholders to pay. They concluded with a command to levy the amounts of the taxes upon the goods and chattels of the Bank. The warrants were executed according to this command. The Bank sued the sheriff and the sureties on his bond for damages for the conversion of its property, and obtained judgment in the District Court. The Court of Appeals reversed the judgment, and the Bank now prosecutes error to this court. 49 Pac. 639. The liability of the Bank’s property to levy and sale for the payment of the taxes assessed against the stockholders in respect of their ownership of stock, is the question for decision. The material provisions of the statute bearing upon this question are contained in the General Statutes of 1897, ch. 158, and are as follows: “ Sec. 60. Stockholders in banks and banking associations and loan and investment companies organized under the laws of this State or the United States shall be assessed and taxed on the true value of their shares of stock in the city or township where such banks, banking associations, loan or investment companies are located ; and the president, cashier or other managing officer thereof shall under oath return to the assessor oh demand a list of the names of the stockholders and the amount and value of stock held by each, together with the value of any undivided profit or surplus ; and said banks, banking associations, loan and invest ment companies shall pay the tax assessed upon said stock and undivided profits or surplus, and shall have a lien thereon until the same is satisfied.” “ Sec. 61. If from any causes the taxes levied upon the stock of any banking association, loan or investment company shall not be paid by said corporation, the property of the individual stockholders shall be held liable therefor.” “Sec. 144. All taxes on personal property that shall remain due and unpaid on the first day of January, or the first day of July, shall be collected in the following manner: The county treasurer shall, between the tenth and fifteenth days of January and July, respectively, issue a warrant under his hand directed to the sheriff of the county commanding him to levy the amount of such unpaid taxes and the penalty thereon, together with his fees for collecting the same, of the goods and chattels of the person to whom such taxes were assessed ; thereupon said sheriff shall proceed to collect said taxes the same as upon execution, and after collecting the said taxes pay the same to the county treasurer, and return such warrant within sixty days from the date thereof.” There are no decisions in this State which materially aid in the determination of the question. It is not, however, difficult of solution. There are various statutory provisions which, either in express terms or by implication, require the taxes cbargeable against individuals, in respect of their goods and chattels and choses in action, to be assessed against them personally and extended upon the tax rolls opposite their names. Section 60, above quoted, declares that corporate shareholders in banks and like financial institutions shall be assessed and taxed in the cities or townships where the institutions are located. In addition, it requires the managing officers of the institutions to furnish to the assessor a list of their stockholders and the amount and value of the stock owned by them ; and it declares that the corporations named shall pay the taxes assessed upon the stock of their stockholders, and shall have a lien upon such stock as security for repayment. Section 61 declares that if the corporation does not pay for its stockholders, the property of such stockholders shall be held liable. Section 144 declares that, to enforce the payment of delinquent personal property taxes, the county treasurer shall issue a warrant to the sheriff commanding him to levy the amount of the taxes “ of the goods and chattels of the person to whom such taxes were assessed.” It is a cardinal rule that statutes in pari materia must be so construed as to give all of them meaning and effect. It is likewise a rule that, if necessary in order to give meaning to all the interrelated parts of a statute pertaining to a particular subject-matter, “shall” will be construed to meau “ may.” In this case it becomes necessary to construe it to mean “ may,” where it occurs in the last clause of section 60, in order to give it any effect whatever. An essential feature of a statute which undertakes to lay obligations upon the citizen is the vindicatory part. “It is but lost labor to say, do this or avoid that, unless we also declare this shall be the consequence of your non-compliance. We must, therefore, observe, that the main strength and force of a law consists in the penalty annexed to it.” Blackstone’s Commentaries, *57. There is no penalty annexed to that part of section 60 which declares that banks shall pay the taxes assessed against their stockholders ; that is, no penalty is imposed upon the banks for their non-compliance. Their non-compliance constitutes no ground for action against them in the courts. It was so held in Commissioners of Stafford Co. v. National Bank (48 Kan. 561, 30 Pac. 22). Indeed, the unquestioned rule is that taxes are not collectable by judicial process unless statutory pro vision is made therefor. The statutes are barren of formula or procedure for the enforcement of the obligation resting upon the banks to pay the taxes of their stockholders, if we are to construe “shall,” as used in section 60, in it's imperative or mandatory sense. There is a penalty provided for the non-payment of the taxes, but, by the very terms of section 61, following, it is visited upon the stockholders, not upon the banks. If a bank does not pay for its stockholders, they themselves must pay. The sole method of compelling payment is then pointed out in section 144. It is by the issuance of a warrant for the sale of the property of the person against whom the taxes 'have been assessed. This, and no other, is the method provided, and no method not provided can be pursued. The authority to collect taxes must be exercised in strict accordance with the prescribed forms. “The statute under which the property of the citizen is to be taken from him for the use of the public is to be strictly construed, and it must be complied with in all its essential provisions.’ ’ Wheeler v. Chicago, 24 Ill. 107. In United States v. Wigglesworth, 2 Story, 369, Mr. Justice Story said : “A general rule in the interpretation of all statutes, levying taxes or duties upon subjects or citizens, is not to extend their provisions by implication beyond the clear import of the language used, or to enlarge their operation so as to embrace matters not specifically pointed out, although standing in close analogy. . . . In every case, therefore, of doubt, such statutes are construed most strongly against the Government, and in favor of the subjects or citizens, because burdens are not to be imposed, nor presumed to be imposed, beyond what the statutes expressly and clearly import. Revenue laws are in no -just sense either remedial laws or laws founded upon public policy, and therefore are not to be liberally construed.” The rationale of the statutes under consideration, viewed in the light of the rules of interpretation, is, that section 60 does not impose an obligation upon banks to pay the taxes assessed against the stock of their stockholders, but that they may do so, and, upon doing so, are entitled to a lien upon the stock for repayment. It is no answer to say that under this construction of the statute some bank stock, particularly that owned by nonresidents may excape taxation. Such considerations may well be addressed to the Legislature, but not to us. Inasmuch as the sheriff did not appropriate to his own use the bank's property taken by him, but turned' it, or its avails, over to the county treasurer in payment of the taxes due from the stockholders, it is urged that nominal damages only, if any , m •, -, . , , . at all, can be recovered against him. • <=> This argument rests upon the theory that the bank was under a legal obligation to pay. The bank, however, was under no such obligation. If it chooses to treat the conversion of its property as a payment in behalf of its stockholders, it may do so ; and, had it done so, the question argued by defendants in error might arise. .It has not, however, so elected to treat it, but has elected to treat the act of the sheriff as a trespass to the extent of the value of the property taken by him. That it may recoup its damages from the stockholders, does not excuse act of the sheriff. One who is guilty of the wrongful conversion of another's property cannot mitigate the damages caused by his act by applying the property to the use of another against whom the owner has legal recourse for its recovery but against whom he does not elect to proceed. The judgment of the Court of Appeals was wrong, and that of the District court was right. The one is reversed and the other affirmed.
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Allen, J. The executors of the will of James M. Gillis, deceased, brought suit in the District Court of Shawnee County against Nelson Giles, jr., D. E. Sowers, and others, to recover judgment on three promissory notes, for $4,000 each, executed by Giles and wife, and to foreclose a mortgage, on a quarter section of land near Topeka, securing the same, executed by the same parties. The petition alleged that the undivided one-eightli of the land had been conveyed to Sowers, and that as a part of the consideration for the conveyance he had assumed the payment of $3000 of the mortgage debt. Parker was not named in the petition as a party to the action. After proceedings not shown by the record, Sowers, by leave of court, filed an amended answer, in -which he alleged that on the second of March, 1887, James M. Gillis, the plaintiff’s testator, was the owner of the land described in the petition ; that Albert Parker represented to Sowers that he had formed, or was forming, a syndicate for the purchase of the land, that it would cost $200 per acre, that that was the price they would be required to pay for it, and that if Sowers would take an interest in the land, he could have it at cost price, and would be admitted “on the ground floor”; that afterwards, Parker caused Gillis to convey the land to E. D. Giles, Parker’s brother-in-law, for a consideration of $24,000 ; that Giles had no interest in the land, but held it in trust for Parker; that Parker afterwards procured from Giles a deed conveying the land to Nelson Giles, Jr., the consideration named in that deed being $32,000; that no actual consideration passed, but that the conveyance was made at Parker's instance, for his benefit, and to aid him in carrying out his purpose to cheat Sowers ; that Nelson Giles, Jr., and his wife, then executed the mortgage sued on ; that thereafter Parker caused Giles to convey the land to one J. R. Jackson; that subsequently Jackson conveyed an undivided eighth of the land to Sowers for a consideration of $4000, by the terms of the deed to which, Sowers assumed the payment of $3000 of the mortgage sued on, and paid to Parker $1000 ; that all of his dealings were with Parker alone; that Parker deceived him as to the cost price of the land ; that in truth he paid but $150 an acre, and knew, at the time he made the statement to Sowers that it would cost $200 per acre, that it would cost but $150 ; that Sowers relied on Parker’s statements, and did not know until within a month or six weeks before filing the answer that Parker’s statement as to the cost price of the land was false ; that after receiving his deed he had paid $990 on the mortgage ; that upon discovering the fraud he and his wife had executed a warranty deed to Parker for the one-eighth interest in the land, and tendered a delivery thereof, which was refused, and that he had demanded from Parker $1990, paid as before stated. He asked that Parker be made a defendant in the' case ; that his purchase be rescinded, and that he have judgment against Parker for $1990 and interest, less net rents and profits of the land. A summons was issued and served on Parker, who appeared and demurred to the answer filed by Sowers. This demurrer being overruled, he filed an answer denying the averments of Sowers’ answer and pleading the Statute of Limitations. The case coming on for trial,' judgment was rendered against Giles and.wife for the amount due on the notes and against Sowers for $2010 on his assumption, and in favor of Parker on the issues joined between himself and Sowers. Thereupon, Sowers moved for a new trial, which was granted as to the issues between himself and Parker. Afterwards, the case came on for trial on the issues between Sowers and Parker, and a verdict for $2546.30 was returned in favor of Sowers. Parker thereupon moved for a new trial, and his motion was sustained bn the grounds, as stated in the record : 1, That the court erred in giving the sixth instruction. 2, That the representation of Parker as to the cost price of the land, was not such a fraud as entitled Sowers to rescind the contract; and, 3, That the court should have given an instruction to the effect that, to entitle Sowers to rescind, the jury must find that the false representations induced him to enter into the contract, and that but for such false representations he would not have entered. into it. This proceeding is brought to reverse the order granting the new trial. Many questions are discussed in the briefs,'but as a single proposition is decisive of the case it is unnecessary to consider anything further. There is no averment that Sowers was deceived by anything that Parker said or did as to the quantity, character, or actual value of the land purchased. The claim of fraud is based solely on the proposition that Parker stated that the land had cost him $200 an acre, when it had, in fact, cost him but $150. This is not such a false representation as entitled Sowers to rescind the contract. Holbrook v. Connor, 60 Me. 578; Hemmer v. Cooper, 8 Allen, 334; Cooper v. Lovering, 106 Mass. 77; Tuck v. Downing, 76 Ill. 71; Graffenstein v. Epstein, 23 Kan. 443; Burns v. Mahannah, 39 id. 87, 17 Pac. 319; Elerick v. Reid, 54 id. 579, 38 Pac. 814. The case was tried under .the claim and on the theory that Sowers purchased his. interest in the land from Parker. If he purchased it at the fixed price of two hundred dollars an acre it is impossible to see how the fact that Parker had bought it at any less price would tend to defraud him. He got the very property he bargained for, and got it at the price he agreed to pay. He was not interested in the question whether the purchase and sale by Parker had been a winning or losing speculation. Under the statements of the amended answer Sowers was not entitled to rescind, nor to the verdict which he obtained. There was therefore no error in granting a new trial. Whether, under pleadings differently framed, Sowers might recover the difference between one hundred and fifty and two hundred dollars per acre, is not before us for consideration; but, at the utmost, under the facts disclosed, he could not claim more than a purchase of the land at the rate of one hundred and fifty dollars an acre. He alleges nothing tending to excuse him from payment at that rate. The order of the district court is affirmed.
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Allen, J. This action was brought by Dora B. Seward, as plaintiff,-against the Grand Lodge of the Ancient Order of United Workmen, the First National Bank of Emporia and George W. Seward, to recover the amount of a beneficiary certificate issued by the Grand Lodge on the life of her husband, Henry R. Seward. It was alleged in the petition that the Bank and George W. Seward claimed some interest in the beneficiary certificate, but the plaintiff denied the validity of such claim. George W. Seward and the Bank filed a joint answer, admitting that the Grand Lodge issued the beneficiary certificate set’ out as an exhibit to the plaintiff’s petition, but averring that, in the forenoon of September 10, 1895, the day on which he died, H. R. Seward, in accordance with the rules of the order, revoked the direction made by him as to the payment of the beneficiary fund due on his death, and surrendered that certificate, which was duly canceled by the lodge, and that a new certificate was thereupon issued by the lodge, in which George W. Seward was named as beneficiary. A copy of the new certificate was attached to the answer. The plaintiff replied that the revocation of the first certificate, if made, was made when Henry R. Seward was, by reason of illness and impaired mental powers, incapable of executing or consenting to thé execution of the same, and that his signature to the revocation of the direction in the first certificate was obtained by fraud, duress and undue influence exercised by the cashier of the bank, George W. Seward, and Dr. Belle Seward, his sister. After the commencement of the action, under a stipulation entered into by the parties, the Grand Lodge of United Workmen paid into court •two thousand dollars, the amount of the certificate, and was discharged from all further liability in the case. The action was then tried on the original pleadings as a suit between the plaintiff on one side and George W. Seward and the Bank on the other, to de termine which should have the money. The jury returned a verdict in favor of the plaintiff, on which judgment was entered in her favor for two thousand and forty dollars, the forty dollars being interest which accrued on the money subsequent to its payment into court. George W. Seward, the Bank, and the Grand Lodge, all join as plaintiffs in error. Counsel for the defendant in error urge numerous objections to the consideration of the case in this court. The first point made is that the action was in substance an equitable one, to set aside the written instrument by which H. R. Seward was claimed to have revoked the direction in the first certificate as to the payment of the fund. A motion for a new trial was filed within due time after the rendition of the verdict, and was overruled by the court. No other motion for a new trial was filed after the entry of the judgment. The contention is that the verdict was' not a complete determination of the issues of fact; that, being an equitable action, it was necessary for the court, also, to pass on the testimony, and that the motion for a new trial filed before it had done so was premature. This contention, though ingenious and plausible, does not rest on a substantial foundation. The action, as originally brought, was for the recovery of money only on the beneficiary certificate, and was properly a jury case. After the money was paid into court by the Grand Lodge, it became a controversy as to the title to the funds, and was still a controversy properly triable to a jury. The question at issue was which party owned the money which had been paid into court. Even if this were not so, the court and all parties treated the case as one properly triable by a jury, and the motion for a new trial was considered and passed on by the court, with out objection on the part of the plaintiff, as if filed at the proper time. It would be exceedingly technical and unfair to now treat it as premature. We think the criticism on the specifications of error are unwarranted. We have had no difficulty in learning from the brief just what errors are relied on. The third objection to the consideration of the case is also too narrow and technical to have force. The word “ defendant,” in the order granting leave to make a case, will be read “ defendants” ; for the trial judge, in settling and signing the case, made by the attorneys for the defendants, has interpreted it as having that meaning. The joinder of the Grand Lodge as plaintiff in error seems unnecessary, but, if so, it constitutes no ground for refusal to consider the case. Neither is there any force in the claim that the Bank had no right to join in the motion for a new trial and that it had no interest in the case. Both the Bank and George W. Seward were brought into the case as defendants, and they answered jointly. The court would have had no right to overrule the motion for a new trial on the ground that the Bank had no right to join in it. None of the objections to the consideration of the case are valid. It was admitted by all parties that, on the morning' of the day of his death, H. R. Seward signed a written direction, indorsed on the original beneficiary certificate, revoking the direction therein contained requiring the payment of the fund to his wife, and authorizing the payment to be made to his brother, George W. Seward. It is also admitted that the plaintiff gave her consent in writing to the change, though this appears to have been unnecessary under the rules of the order. The testimony to support the charge of fraud, undue influence, and mental incapacity of H. R. Seward, is very weak. It appears that he was a book keeper employed in the Bank. On the thirtieth or thirty-first day of August he was taken with a severe attack of heart disease, from which he never recovered. His physician recommended a change of climate. It was finally determined that he should go back to his old home in Marengo, Illinois, with his sister, Dr. Belle Seward, who resided there. For the purpose of obtaining money to defray his expenses on the trip, he sent, by his wife’s daughter, a check, for $110, drawn on the Bank, which she presented for payment. He was then indebted to the Bank in a considerable sum, and payment of the check was refused'. Afterward, George W. Seward, executed to the Bank his note for $2000, signed also by H. R. Seward, for the debt of Henry to the Bank. Subsequently, and on the morning of his departure for Illinois, the change in the beneficiary certificate was made. H. R. Seward died while on the road to his old home. There is no direct evidence that any one urged the deceased to change the name of the beneficiary. It is contended, however, that the purpose of the change was to enable the Bank to collect its debt; that under the rules of the order of United Workmen the beneficially must belong to the family of the member or be related to him by blood, and, therefore, the Bank could not be named as beneficiary ; that George W. Seward was induced by the Bank to act for it, and to obtain the change in the certificate for the purpose of receiving the money and paying it over to the Bank. All of the direct testimony bearing on these claims is opposed to the theory of the plaintiff. There are some circumstances, however, tending to support it, though they appear quite inconclusive. The testimony showed that, at the time the change in the certificate was directed, Henry R. Seward was conscious that he was afflicted with a disease likely to prove fatal; that he was suffering greatly, and was in a condition of nervous affection and great discomfort; but the testimony as to mental incapacity to transact business is not strong or satisfactory. It is not our purpose, however, to pass on the disputed facts in the case, but to call attention to the facts presented for the consideration of the jury, for the purpose of showing the applicability and correctness of the instructions given, among which were the following: “9. Fraud is never presumed, but must be proved before the jury can find there was anj^ fraud. Fraud can rarely be directly proved, but if such facts and circumstances are shown to the jury as lead them to believe that the defendants intended to perpetrate a fraud upon the deceased, you will be justified then in finding from such facts and circumstances that fraud was committed.” •“21. Actual fraud is not essentially necessary in order to set aside the attempted revocation of Henry R. Seward. The acts and contracts of persons of weak • and enfeebled understanding — if you find such was the condition of deceased at the time — and who are therefore liable to imposition, will be held void if the nature of the acts or contract justify the conclusion that the party has not, in what he did, exercised a reasonably deliberate judgment, but that he has been imposed upon, circumvented, or overcome by cunning, artifice or undue influence, and induced, by reason of such artifice, cunning or undue influence, to dispose of his property.” “22. If you find that the deceased, Henry R. Seward, placed confidence in and dependence upon the advice of his brother or sister, or any trusted friend, in his extreme infirmicy or sickness, contracts or changes of benefit under contracts made at such time or under such circumstances, are subject to strict scrutiny. In such a case it is not necessary to prove the exercise of undue influence or deception, provided you believe that his contract or act was procured by the exercise of the influence and will of one of those acting in such trusted relation, and that, but for the enfeebled condition of the mind and body of the deceased, and that but for the influence of those surrounding him he would not have revoked the beneficiary certificate, then such revocation would be void.” All these instructions are inaccurate and erroneous as abstract statements of the law. They are especially so as applied to the case on trial. The first proposition contained in the ninth instruction is sound; but it is not the law that proof of an intent to perpetrate a fraud will justify a finding that fraud was committed. It ® is exceedingly difficult to say that there was any evidence tending to show fraud. George W. Seward voluntarily assumed an obligation equal to the amount of the certificate for his brother’s debt to the Bank. By this means the money necessary to enable him to make the journey was obtained from the Bank. There would seem to be nothing reprehensible in an arrangement which would protect George in the event of Henry’s death. The twenty-first instruction is erroneous as applied to the case in hand in stating that the acts of a person of weak and enfeebled understanding will be held void if the nature of the acts or contract justify the conclusion that the party did not exercise a reasonably deliberate judgment, but has been imposed on. This probably gave the jury to understand that they might determine the question of fraud from the nature of the transaction alone, and that no proof of actual fraud or of influence exerted was necessary; that if they thought the act itself was such as ought not to have been done under the circumstances, and if they found that Henry R. Seward was of weak and enfeebled understanding, they might treat it as void. Possibly, in some cases such an instruction might not be objectionable. In this case, however, there was nothing in the act itself which was necessarily wrong, or which necessarily implied anything more than a disposition on the part of the deceased to protect his brother from loss incurred on his account. The twenty-second instruction is also erroneous in stating that if Henry R. Seward placed confidence in and dependence on the advice of his brother, sister, or any trusted friend, in his extreme infirmity or sickness, it was not necessary to prove deception or the exercise of undue influence, provided the act was procured by the exercise of the influence and will of one of those acting in such trusted relation, and but for the enféebled condition of his mind and body and the influence of those surrounding him, he would not have revoked the certificate. In order to avoid the revocation of the certificate it was necessary to prove either fraud, undue influence, or mental incapacity. Nearly, if not quite every one, has trusted friends on whom he places more or less reliance in times of trouble and affliction. To say that the act of a person rendered weak and infirm by illness is necessarily void when procured by the influence of trusted friends, is equivalent to declaring as a matter of law that one's friends will be presumed to deceive and mislead him in times of greatest weakness and distress. It is, of course, proper to strictly scrutinize every transaction through which any one occupying a confidential relation obtains an advantage under such circumstances. The conduct of George W. Seward might well be strictly scrutinized. Possibly, also, if the jury were of the opinion that the Bank would be benefited by the transaction, the acts of the cashier should be viewed in the same light. There is nothing, however, to indicate any sinister motive actuating his sister. But even as to George W. Seward and the cashier it was still necessary to prove either utter incapacity on the part of Henry to transact business, or fraud or undue influence on their part. Mere solicitation to do that which was entirely right and proper, though it would not have been done without such solicitation, is not wrongful, and should not be treated as equivalent to wrongdoing. The errors contained in these instructions require a reversal of the case. "While complaint is made of other rulings of the court, it seems unnecessary to discuss any other questions in the opinion. The judgment is reversed and the cause remanded for a new trial.
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Johnston, J. This was an action of ejectment brought by J. W. Greene against Edgar Harding and others to recover two lots in the city of Kingman. Greene claimed title by virtue of a tax deed executed on December 19, 1893, while Harding claimed title under a sheriff’s deed executed about the same time. The tax deed was held to be void because of the insufficient description of the property on the assesment rolls and in other tax proceedings. After the entry of judgment in favor of Harding, Greene filed a motion asking the court to determine the amount of taxes that had been paid under the void tax deed and to declare the same a lien upon the lots described in the deed. On this motion it was shown that the tax deed was based upon a sale of the lots made in 1889 for the taxes of 1888, and that the subsequent taxes were paid and entered upon the certificate of sale down to and including the December payment in 1891. On the assessment rolls, tax rolls, tax sale entries and final redemption notices the lots were only described and referred to in the following manner: “Livingston, S. B. Pt. lot 14, Ave. A West. Hinton, M. A. Pt. lot 14, Ave. A West. Livingston, S. B. Pt. lot 16, Aye. A. West. Hinton, M. A. Pt. lot 16, Ave. A West.” Nothing in any of these descriptions indicated what portions of the lots were assessed or intended to be assessed, or that the assessment was intended to include all of the lots. Neither was there anything to show what part of each lot was assessed to Livingston or what part to Llintón, nor yet that both together were the owners of the whole of either lot. The indorsements upon the certificate of sale, of the subsequent payment of the taxes, described the lots as follows : “ Pt. lot 14, assessed to S. B. Livingston. Pt. lot 14, assessed to M. A. Hinton. Pt. lot 16, assessed to S. B. Livingston. Pt. lot 16, assessed to M. A. Hinton.” Opposite each description was the amount of taxes paid, but nothing to indicate the particular part upon which each payment was made. There was no evidence offered that the lots or portions of them were not assessed'or taxed, for the years named, by other descriptions, nor that the taxes upon the whole of the lots could have been properly charged against the parties to whom they were assessed. Upon this motion the court held and adjudged that the taxes paid were a lien upon the lots, and of this ruling Harding complains. The judgment entered in the ejectment' proceeding contained a finding and declaration that no lien for taxes could be allowed, and it is now insisted that, because that judgment was not formally set aside or modified, the matter of lien could not again be considered. The judgment first entered did not preclude the reopening of the question as to whether a tax lien could be allowed, and this was in effect what was done ; but if the holder of a tax deed is defeated in an ejectment action, he may then move for the recov ery of the taxes, penalties and costs to which he may be entitled. Tax Law, § 142. The inquiry as to the tax lien was taken up at the same term of court, and -within two days after the first judgment was rendered, and the decision then made was in fact a modification of the judgment first rendered. As the testimony stands, however, we think it did not warrant the court in holding that the taxes, penalties and costs paid constituted a lien upon the property. It is essential to the validity of a tax that the assessment roll and other proceedings shall contain a sufficient description of the property taxed. As will be observed, the descriptions in this case are very indefinite and imperfect, and no testimony was offered showing that the descriptions given were sufficient to accomplish the purpose of the statute. A definite description is necessary, in order that the owner may be informed of the claim upon his property, and also that, if the taxes are not paid, parties desiring to purchase may know what property is offered for sale, and further, that when a sale is made a proper conveyance may be made to the purchaser. The statute with reference to the description required in tax proceedings provides that they shall be such as “shall indicate the land intended with ordinary and reasonable certainty, and which would be sufficient between grantor and grantee in an ordinary conveyance.” Tax Law, § 153. No lien for taxes can be allowed against any particular tract except for the portion of the tax assessed against it; and as we have seen we have no means of determining against what particular part each assessment was made. It does not appear what part of each lot was intended to be assessed to either Livingston or Hinton. If it had been shown that Livingston and Hinton, together, owned all of the lots, and that the two parts of each lot described were intended to cover the whole of each lot, and that the lots were not assessed or taxed for the same years by other descriptions, the lien might have been allowed. Kurtz v. Chandler, 32 Kan. 661, 5 Pac. 170. It does not appear that either Livingston or Hinton was in the actual possession of the lots, or parts of lots, or that the interest which each held in the same could have been ascertained by the taxing officers or proven in court; at any rate, nothing was offered tending to help out the indefinite and incomplete description ; and upon the proof offered we must hold that it did not warrant the allowance of a lien for the taxes alleged to have been paid. The fact that the tax deed purports to convey the whole of lots 14 and 16 does not operate to cure the indefinite assessment nor supply the proof that the tax was actually levied against a specific and definite parcel. Wilkins v. Tourtellott, 28 Kan. 825. The judgment of the District Court will be reversed and the cause remanded for further proceedings.
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The opinion of the court was delivered by Brewer, J.: This is a proceeding in error to review the decision of the district court overruling a motion to set aside a judgment. The judgment was rendered in an action to foreclose- a mortgage, and upon service only by publication. This case has been once before to this court. (Challiss v. Headley, 9 Kas. 684.) Upon abundant authority, and well-settled principles, the decision at that time has become the established law of the case. Phelan v. City of San Francisco, 20 Cal. 40; Polack v. McGrath, 38 Cal. 666; Yates v. Smith, 40 Cal. 662; McKinlay v. Tuttle, 42 Cal. 570; Washington Br. Co. v. Stewart, 3 How. 413; Booth v. Commonwealth, 7 Metcalf, 286; Hosach’s Fx’rs v. Rogers, 25 Wend. 313; Mason v. Mason, 5 Bush. (Ky.) 187. Whatever therefore, was at that time decided, is not now a matter for reexamination. Nor is this limited to the mere questions noticed in the opinion, nor indeed to the actual matters presented by the respective counsel, and considered by the court. It extends to all matters actually existing in the record, and necessarily involved in the decision. Thus, in the case from 3 Howard, cited above, a question was raised as to the jurisdiction of the court, but as the case had once before been taken to the court, and a decision rendered upon the merits, the question of the jurisdiction was held to be also settled, although as a matter of fact it had not been considered; and this, because jurisdiction is involved and assumed in an inquiry into and a decision upon the merits. See also the cases above cited from 7 Metcalf, 25 Wend., 5 Bush., and 38 Cal. The motion in the district court was to set aside the judgment for want of service. The question presented to the court, and passed upon when the record was brought here before, was as to the right to amend the record by supplying the correct notice and proof of publication. There had been two cases between the same parties, and in the record of this case had been introduced the notice and proof belonging to the other. The district court held that this amendment could not be made. This court reversed such ruling, and decided that the amendment ought to be permitted. Now, while the motion filed was broad enough to include and did specifically mention the insufficiency of the affidavit, the principal matter now presented, yet the attention of this court was not called to it, and the case was decided upon the points just noticed. Subsequently, the learnéd counsel for the Headleys moved for a rehearing, upon the ground specifically that the affidavit was fatally defective, and that hence the decision of the district court ought to be sustained, whether there was error or not in refusing leave to amend — for, though the notice and proof of publication were beyond exception, if the affidavit therefor was fatally defective, the service was bad, jurisdiction was not acquired, and the motion to set aside ought to have been sustained. This motion was overruled, upon the ground, as counsel correctly suppose, that the question raised was a new question, not presented by brief or argument of counsel at the first hearing. For while this court may in its discretion} and in furtherance of justice, upon a motion for a rehearing examine into new questions, and upon them modify or revise its rulings, yet it is purely a matter of discretion, and not of legal right; and the court will seldom examine beyond the questions already presented. A party may not settle the law of his case by piecemeal before this court, any more than he may settle the facts in that way before the district court. When the case is tried, he must be prepared to present his entire claim, or his entire defense. Now, the sufficiency of the affidavit was a question actually existing, and apparent upon the record, and really involved in the -decision, for an error in refusing leave to amend a record works no substantial injury to a party when the record as amended would be equally void. Upon these considerations, and upon these alone, we hold that the record of the case and judgment, as presented, must be sustained, and the ruling of the district court affirmed. As to the nature of the amendments made, and proof offered in support of the record, we think it unnecessary to more than refer to the opinions in this case when here before, and the similar case of Foreman v. Garter, 9 Kas. 674. The judgment will be affirmed. All the Justices concurring.
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The opinion of the court Ivas delivered by Valentine, J.: The plaintiff in error (who was defendant below) states his case in this court as follows: “This action was commenced before a justice of the peace, who on the 20th of February 1873, required the defendant in error, plaintiff below, and a resident of the county where said action was commenced, to give security for costs. The action was appealed to the district court. At the October Term 1873 of' the district court, and before judgment, plaintiff in error, defendant below, made a motion to require said defendant in error to give additional security for costs. The court found the security insufficient, and required said defendant in error to give additional security within sixty days. ' At the next term of the court, defendant in error having failed to give said security for costs, plaintiff in error made a motion to dismiss the action, which was overruled by the court, and excepted to by plaintiff in error. A verdict and judgment was obtained against plaintiff in error, to which he excepted, and now brings the action to the supreme court to reverse said judgment, and dismiss said action.” This statement is substantially correct. And does it appear therefrom, affirmatively, that the court below committed an error, which affects materially the substantial rights of the plaintiff in error? It is only substantial error that will authorize the reversal of a judgment: (Code, §§ 140, 304.) And such error must be made to affirmatively appear. Now supposing that § 186 of the justices act, as amended in 1870, (Laws of 1870, p. 187, §15,) gives authority to justices of the peace to require security for costs from resident plaintiffs, still such authority is unquestionably vested in the discretion of the justice, as will readily appear from a careful perusal of the section. As to nonresident plaintiffs, the justice “shall” require security for costs. “But in all other cases the justice may” require such security. Why use the word “shall” for nonresidents, and “may” for others, if it was not intended that the justice should exercise his discretion in the latter case? And if this authority of the justice is carried to the district court, on an appeal, by § 584 of the code, (Gen. Stat. 746,) or by any other'statute, then the authority of the district court is also discretionary. And of course, if the court has a discretion as to whether it will require security for costs, it must also have the .same discretion as to whether it will enforce the plaintiff to give security by dismissing his action if he does not do so. That is, the court may exercise a discretion as to whether it will require security for costs to be given; and if it requires it, may then exercise a discretion as to whether it will dismiss the plaintiff’s action, if security for costs is not given. And where the court below is vested with a discretionary authority, we can reverse only where the court has abused its discretion. In this case it does not affirmatively appear that the court below did abuse its discretion. At the October Term 1873, the .court required additional security for costs to be given. At the March Term 1874, it refused to dismiss the action because security for costs had not been given. At that time the plaintiff had already recovered one judgment in the case, which had been set aside by the appeal. And a trial had also then been had in the district court, in which the court had heard all the evidence, and at which the jury failed to agree. ' And after hearing this evidence the court may have had the strongest convictions that the plaintiff ought to recover. And if so, the court did not abuse its discretion by refusing to dismiss the plaintiff’s action merely because he failed to give additional security for costs. Afterward the plaintiff recovered a judgment against the defendant for $4.60, and costs of suit. Hence, no substantial right of the defendant was affected by the plaintiff failing to give additional security for costs. The defendant has lost nothing. He is to pay the costs, and not the plaintiff. But suppose the court erred either in not setting aside its order requiring the plaintiff to give additional security for costs, or in not dismissing the plaintiff’s action, still the defendant has no right to complain. The means by which a court enforces its own orders belong rather to the court, than to the parties. The parties can only claim to use such means for the purpose of enforcing substantial rights in their own favor. And where a party has no substantial right to be enforced, as in this case, such party cannot complain of the court for failing to enforce its own orders, however erroneous the action of the court may be in the premises. The judgment of the court below is affirmed. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: This was an action brought by the state, upon the relation of the attorney-general, to restrain the county treasurer of Brown county from further proceedings, to collect certain taxes; and the principal question presented is, as to the right of the plaintiff to maintain the action. The facts alleged are, that a school district some years since made an arrangement with a church society by which, upon condition that the latter advanced a thousand dollars, the former should, in building the public school-house, make arrangements for a room for the church services of the latter; that this arrangement was carried into effect, and to secure this advancement two bonds of the district were executed, delivered to the church, and still remain in its possession; that the bonds maturing, a levy was duly made to pay them off, and that proceedings had advanced so far that the defendant, the county treasurer, had possession of the tax-roll, and was proceeding to collect, with other taxes, the tax for this purpose. The church and the county treasurer are the only parties made defendants. It is nowhere alleged that any taxpayer in the district questioned the legality of the tax, or had any objection to paying his proportion of the amount necessary to redeem these bonds. Nor does it appear that there was any want of good faith on the part of the district, or the church, or that the contract was not satisfactory to both parties, and fully and fairly executed by both. The case is rested upon the naked proposition, that the contract, being ultra vires of the district, the bonds are void, and that the taxpayers of the district, whether willing not, must not be allowed to pay them. The district judge decided that the action would not lie in the name of the state, on the relation of the attorney-general. The plaintiff brought this ruling here on error. Since it- has been pending in this court the officers of the district have filed a written request and order that the case be dismissed. It is obvious, that this interference on the part of the state is unnecessary for -the protection of any rights. It is not a case where, but for the intervention of the state, an irremediable wrong will be perpetrated. Conceding the bonds to be void, each and every taxpayer has ample protection by an action of injunction. Nor is a multiplicity of suits necessary. The tax, as a tax, being illegal, all the taxpayers may unite in a single action. Hudson v. Comm’rs of Atchison County, 12 Kas. 140. It is apparent too, that no action of the corporation, the school district, is sought to be prevented. It is not even a party to the suit. So far as the bonds are concerned, the school district issued them long ago. So far as any levy of taxes is concerned, that has already been done. All that now remains is, the action of the ministerial officer, the treasurer, in collecting the taxes, and the subsequent payment of the bonds. It is clear too, that there is no express warrant in the constitution or the statutes for such an action on the part of the attorney-general. The constitution is silent as to the powers and duties of that officer. (Const., art. 1, §§ 1 and 14.) The statute defining his duties grants no such power, imposes no such duty. (Gen. Stat. pp. 986, 987.) If such power exists it must be by virtue of the general power of the state to supervise and control the action of all corporations and officers, and the fact that the attorney-general is the general law-officer of the state. While in a certain sense it may be true, that the state has a supervision and control over all its corporations and officers, yet to conclude therefrom that it is either the duty or the privilege of the attorney-general to interfere in the case of every illegal act of a corporation, or officer, would be a deduction both novel and startling. Actions of quo warranto may be brought by the attorney-general against both officers and corporations for ouster and forfeiture. (Laws of 1871, p. 276, §§ 1,2.) In the fourth clause of this first section-it is expressly provided, that the action may be brought “when any corporation abuses its power, or exercises powers not conferred by law.” It may not however follow from this that quo warranto is the only remedy. It cannot be maintained by one who has no other interest-than as a citizen and taxpayer. Miller v. Town of Palermo, 12 Kas. 14. If the wrong is of a public nature, affecting the community in genral, the state through its proper officers can alone maintain the action. Mandamus will lie at the instance of the attorney-general when the duty sought to be compelled is one of a purely public nature. Bobbitt v. Dresher, 10 Kas. 9. It will not under the same circumstances lie at the instance of a mere citizen and taxpayer. So too, we think the process of injunction may be invoked by the state in any proper case. Indeed, we know of no reason why the state may not avail itself of any of the writs and processes of the law available to individuals for the enforcement of rights, and the redress of wrongs. So that the form of the action is no objection, if the right exists in the state to interfere. It is obvious that the state as a state has no direct interest in this controversy, any more than in a controversy between individuals. The payment of these bonds may be illegal, but their payment works no greater wrong to the state than the payment by a single individual of an illegal debt. The single individual may if he chooses by appealing to the ordinary proceedings of the law protect himself against such illegal payment. So may the many taxpayers. The case of The State v. County Court, 51 Mo. 350, is cited as authority. There, by a divided court, the right of the state was sustained to interfere by injunction to restrain the county court from issuing bonds in pursuance of an illegal subscription, and the officers and collector from levying, assessing and collecting taxes to pay interest or principal of some of the bonds already issued. In reference to the levy it appeared that the county court had included the tax in the general county taxes, so that it could not be separated, and the tax- payer could not tell what part was legal and what illegal. The general doctrine was laid down, that “it is competent for the state, at common law, through its officers to maintain proceedings by injunction, to restrain public corporations from doing acts in violation of the constitution and laws of the state.”' It would seem from the opinion of the court, given by Shepley, special judge, that the action would not have been sustained if the bonds had already been issued, the tax levied, and so levied that the taxpayers by a single action could have protected themselves. Two cases are referred to in the opinion as containing full discussions of the principles involved, one that of Davis v. The Mayor of N. Y., 2 Duer, 663, in which Judge Duer reached the conclusion that in an action “brought by two taxpayers against the mayor and others to restrain the construction of a street and railroad upon Broadway, for the doing and operating of which the municipal authorities of the city had given authority,” the attorney-general was a necessary party; and the other, that of the Attorney-General v. Minur, 2 Lansing, 396, in which Judge Mullen concludes, that the only cases in which “the attorney-general was authorized to interfere to restrain corporate action, or was a necessary party to an action for that purpose, were those in which the act complained of would produce a public nuisance, or tend to the breach of a trust for charitable uses.” We have referred to these three cases, not as covering the exact question before us, but as containing full discussions of the general question of the right of the state to interfere by injunction to restrain apprehended wrong on the part of public corporations and officers. For in this case, as already noticed, corporate action has ceased, and the interference of the state is sought to restrain a ministerial officer, and that not an officer of the corporation, from discharging the ordinary duties of his office, although those duties are based partially upon the prior illegal corporate action, when the individuals affected thereby have complete and adequate remedy without multiplicity of suits, and by a single action. No authority to which we have been referred has gone so far as to sustain such an action; and we think the same cannot be maintained. As private citizens, unless specially authorized, may not interfere to compel the performance of a mere public duty, or restrain the doing of a mere public wrong, so the state, having no direct interest, may not interfere to protect individuals from the illegal acts of a public officer where such individuals have, in the ordinary course of the law, ample and adequate means of protection. The judgment of the district court will be affirmed. Kingman, C. J., concurring.
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The opinion of the court was delivered by Valentine, J.: This was an action on a penal bond given to secure the fulfillment of a building contract. The action was commenced against L. E. Post as principal, and F. M. Shaw, A. A. Smith, J. B. Hobson, W. Gr. Rainey, H. Pardee, and C. A. Leighton, as sureties. But as no service of summons was ever made on Post or Smith, and as neither of them ever appeared in the case the action was prosecuted in the court below against the other defendants alone. The following facts are admitted by the pleadings: The bond and contract above mentioned were duly executed by the respective parties. The contract contained an agreement on the part of Post to build a school-house for the plaintiffs below, (The Board of Education of the City óf Paola, a city of the second class.) . The house was to be according to certaiix plans and specifications, and under the direction of one A. J. Kelley, an architect, • who was the duly-authorized agent of the said board of education, and appointed by them. Said Kelley had power under the contract to make additional plans and specifications, and to make such alterations and changes in any of the plans and specifications as he might choose. Post was to receive as compensation for building said house the sum of $35,000, to be paid in monthly installments as the work progressed, the work and the amount to be paid to be estimated by the architect, but in no case was he to receive (until after the building was finally completed,) more than eighty per cent, of the amount due on any estimate of the architect; and he was to receive full payment within thirty days after the final completion and acceptance of the building. Where alterations were made from the original plans and specifications, Post was to receive more or less than the contract-price, in proportion as the alterations involved a greater or less expense. Post constructed the building in accordance with the instructions of the architect, and to his satisfaction, and at the time of the final estimate by the architect he received a final certificate from the architect, certifying to the final and proper completion of the building. Post received from the board of education eighty per cent, of said $35,000, to-wit, $28,000; and $7,000 thereof still remains unpaid. The board of education then took possession of said building, receiving the keys thereto from Post, and they still remain in possession thereof. We quote the following portions of the contract as indicating the power of the architect in the premises: “In the construction of these presents, when the contract will admit of it, the term contractor, shall mean the said L. E. Post; the term proprietors, shall mean the said Board of Education, for and on behalf of the said school district; the term architect, shall mean A. J. Kelley, employed by the proprietors to superintend the erection and completion of the works; and the term works, shall mean all the works, matters and things specified and described in the specifications, plans and other drawings as furnished from time to time by the architect, and also such other works, matters, and things as are hereby contracted to be done and performed by the contractor.” “The contractor shall,” “under the direction of the architect, make, execute, finish, and complete” “the several works, matters, and things, and acts mentioned and referred to in the specifications, plans, and drawings furnished and to be furnished by the architect, with such additions enlargements and alterations of and deviations from said plans and specifications (if any) as the architect may from time to time during the progress of the work direct.” “The proprietors shall pay the contractor for the full and perfect completion of this contract the sum of $35,000 in lawful currency of the United States; but if the architect shall direct any additions to, or omissions of, or variations from tbe plans and specifications, the value of such additions, omissions or variations shall be added to or deducted from the said sum of $35,000, as the same may be. The payments to be eighty per centum of the works according to the architect’s estimate, and his. certificate.” These are probably sufficient specimens to show the nature and extent of the power of the architect in the premises. They really show that the architect had all the power that the board of education itself had. He could make such alterations and changes as he chose. The contractor had but little if any choice in the matter. He was required to construct the building, just as directed by the architect, and if he did so, and to the satisfaction of the architect, he fulfilled his contract. The pleadings admit that the building was constructed to the satisfaction of the architect, and therefore it would seem that judgment might have been rendered for defendants on the pleadings. It is claimed however that the building was not constructed in accordance with the original plans and specifications. This was not necessary. The contract itself made the subsequent directions of the .x , , _ architect paramount to the original plans and specifications. Where the subsequent directions of the architect differed from the original plans and specifications, the contractor was bound by his contract to_ follow the subsequent directions of the architect, and to abandon to that extent the original plans and specifications. The original plans and specifications served merely as general guides to work by, where no subsequent directions were given; and served in all cases as criterions of the value of the work done. If the flooring used was worth $10 per thousand feet less than that which the original plans and specifications called for, then $10 for each and every thousand feet of flooring used should have been deducted from the contract-price of the building. If the steps used were worth $920 less than those which the original plans and specifications called for, then $920 should have been deducted for the steps. If the whole house was worth $15,000 less than that which the original plans and specifications called for, then $15,000 should have been deducted from the contract-price for the house, and the plaintiffs should have paid only $20,000 for the house instead of $28,000, as they in fact did pay. The fact however that the plaintiffs paid the contractor $8,000 more than the house was really worth, does not make these defendants liable. They did not enter into bond that the contractor should not receive $8,000, or any other sum, more than he was entitled to receive under the contract. They simply entered into bond that he would fulfill his contract, and if he did that, (and the pleadings in effect admit he did,) then the condition of their bond was fulfilled; and what the contractor received or did not receive for his work, is merely a question between the contractor and the plaintiffs. If the architect, the agent of the board of education, made unwise changes and alterations in the plans and specifications for the building, and if the board unwisely paid more than the building was worth, that was their own misfortune. The sureties on the bond (the defendants) did not agree that the architect and board should always act wisely. That it may be seen what these defendants did in fact agree to, we here quote the condition of their bond in full. It reads as follows: “If the above bounden L. E. Post shall well and truly comply with and perform each and every condition, requirement, and obligation of said contract in writing, as it. now is or may be hereafter changed or modified, then the above obligation to be void, otherwise of full force and effect, in law.” But it is alleged in the reply of the plaintiffs that the acts of the architect in accepting said building, in approving the work done thereon, and in issuing said final certificate, was fraudulent. And it is also alleged in said reply that said acts of the architect were performed through a mistake, the. architect believing at the time that the building was in fact completed in all respects' in accordance with the original plans and specifications. And it is also alleged in said reply that when said board received said building from Post, that they did not receive it as a finished or completed building, but received it only for what it was worth. These allegations in the reply are, under our system of pleading, to be deemed controverted by the defendants without any formal denial of the same on their part. (Civil code, §§ 86, 128.) These are about the only contested allegations in the pleadings. And evidence can of course be introduced only to prove contested allegations. (Reed v. Arnold, 10 Kas., 104.) We shall take no notice of such allegations in the pleadings as deny the legal import of the contract sued on, for such allegations in legal effect amount to nothing. ■ The contract is in writing, set forth in full in the plaintiffs’ , , 07 , - - - _ ^ r i , petition, not denied by the defendants, and it must speak for itself. Neither shall we take any notice of any allegation in any pleading where other allegations made in a pleading by the same party shows that said first-mentioned allegation is untrue, for on the trial of a case the whole of the pleadings are considered together, and where any two allegations of the same party are inconsistent with each other, the allegation most unfavorable to such party is deemed to override the other allegation. (Butler v. Kaulback, 8 Kas., 668, 671.) The evidence introduced on the trial shows that the building was not constructed in accordance with the original plans and specifications, and that the building constructed was worth about $15,000 less than the one which the original plans and specifications called for. This evidence, as we have already seen, was, under the pleadings in the case, and in the absence of any showing of fraud or mistake on the part of the contractor and. the architect, wholly immaterial. In just what the supposed fraud or mistake consisted, we are not informed. No details of fraud or mistake are given. But even if the pleadings had been amply sufficient upon this subject, still the evidence failed to show such fraud or mistake as would authorize an action. (In this connection see the case of Baasen v. Baehr, 7 Wis., 516.) There was not the least showing of fraud by the evidence, and the only mistakes made were in supposing- that the materials, the work, and the building were worth more than they really were. But as we have already said, the sureties on the bond did not agree that no mistakes of this kind should occur. They substantially agreed that the contractor should construct the building to the satisfaction of the architect, and nothing more; and in this respect their contract was fulfilled. But in any case it would probably be difficult to. imagine such a mistake on the part of the architect or the board of education as would give the board of education a cause of action against the sureties on said bond. But what chance had the architect to make such mistakes as would affect injuriously the board of education ? The board appointed a building committee from their own number to watch the architect, to watch the contractor, and to watch the work as it progressed. This committee was cognizant at all times of the manner in which the building was being constructed; and although they made no written report concerning the matter, yet they made verbal reports to the board, and it must therefore be presumed that the board was cognizant at all times of the manner in which the building was being constructed. Yet the board took no action in the matter except to continue to pay the contractor the eighty per cent, on the architect’s estimates. Under such circumstances it must be presumed that the changes that were made in the plans and specifications, or in the work done, were made by the consent of all the parties, and perhaps at the instance of the board itself; and under such circumstances the board should have paid the contractor just what the work on the building was worth, taking the original contract-price of the building as- the proper criterion of the value thereof. Taking the pleadings and the evidence altogether, no cause of action was shown in favor of the plaintiffs and against the defendants. That is, take the undisputed facts, as admitted by the pleadings, and the controverted facts as proved by the evidence, and all together do not constitute a cause of action against these -defendants, the sureties on the contractor’s bond. Upon the facts thus admitted and thus proved, the judgment should have been for the defendants. After the plaintiffs had introduced all their evidence, the defendants demurred to the evidence. The court below sustained the demurrer, dismissed the plaintiffs’ action, and rendered judgment for costs in favor of the defendants and against the plaintiffs. ¥e perceive no error in this. The judgment of the court below will therefore be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: This was an action for partition of real estate brought by Olive Allen, against Joseph Hannum, Henry Allen, and seven others. Olive Allen got all she asked for in the court below, and of course she has no right to now complain in this court. But has Henry Allen, the other plaintiff in error, any right to complain? The facts of the case seem to be about as follows: The property in controversy originally belonged to Samuel Allen. He made a will, devising and bequeathing all his estate (after payment of debts and funeral expenses,) to his wife, said Olive Allen, during her natural life, and after her death (after paying her debts, funeral expenses, and certain legacies,) then equally to all the minor children of his daughter, Huldah A. Hannum. One of the above-mentioned legacies was a legacy of fifty dollars to his son, said Henry Allen. Afterward, said Samuel Allen died, leaving, surviving him, his wife, said Olive, one son, said Henry, and one daughter, said Huldah A. Hannum. His widow refused to accept under the provisions of the will, but elected to take under the provisions of the law of descents and distributions; and hence, she takes absolutely (instead of for life) one-half of all the estate of said Samuel Allen deceased. The other half of the estate, we think, should be distributed in accordance with the will, or as near in accordance therewith as may be possible under the circumstances of the case. Of course, the whole estate is first chargeable with the payment of the debts of the estate. Then the widow takes onejhalf thereof. Then the legacies are to be paid out of the other half. And then, the remainder goes equally to the minor children of Huldah A. Hannum. Henry Allen is entitled to nothing but his legacy of fifty dollars; and that portion of his father’s estate which goes to his sister Huldah’s children will be subject to the payment of such legacy. There is nothing in the judgment of the district court which will interfere with this order of the distribution of said estate, and hence we do not think the district court erred. The refusal of the widow to take under the will, did not render the will inoperative any further than as between the widow and others claiming portions of the estate. It did not render the will inoperative as between the issue of said Samuel Allen and the devisees, legatees, and executor. • The judgment of the court below is affirmed. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: Neitzel sued Hagaman before a justice of the peace, and obtained judgment for $125.85. Hagaman took the case by petition in error to the district court, and the judgment was affirmed. Of this he'now complains, and asks a reversal. The principal question discussed arises upon a statement of facts in the transcript from the justice’s docket. It should be noticed that this transcript shows the filing of a bill of particulars, the issue and return of summons, with a copy of the constable’s return upon the writ, a trial, the defendant not appearing, and a judgment. The summons was returnable on the 4th of December 1873, at 9 A. M. Preliminary to the record of the trial is this statement: “And now to-wit, on this 4th day of December 1873, this cause came on for hearing; defendant being in the justice’s office requested to know what time it was, and was informed by the justice that it was ten minutes past ten o’clock by his watch, whereupon the defendant requested that the case be called. The plaintiff was not present, but had beén in a few moments before, about fifteen or twenty minutes to ten o’clock A. m. The justice stated that the constable was now preparing' a more suitable room for the trial of this cause, and it would be called in a few moments. Defendant departed, and was not in court again by himself or counsel. Shortly after the plaintiff entered the justice’s office, and claimed that the hoiir of trial had not arrived, and produced a watch indicating time at ten minutes to 10 A. M., and insisted upon trial of this case, and would risk judgment if it should be in his favor. Thereupon defendant was Called three times, and did not answer, and was not in court during the trial. Trial had,’-’ etc. Upon this it is contended by Hagaman that he had a right to depend upon the reply of the justice as to the time, and that when the hour for the trial arrived the justice must, if the plaintiff were not present, have dismissed the action, and had no jurisdiction to proceed to.a trial thereafter in his (defendant’s) absence. On the other hand it is insisted, as a preliminary matter, that this statement of facts is not so presented that any notice can be taken of it. The matters contained in the statement are not matters which properly form a part of the record, and are not preserved in any bill of exceptions. And this we think is correct. The statement is simply one of conversations between the justice and the resPective parties. It contains nothing which the gtatute requires should be entered upon the justice’s docket. (Justices Act, § 188.) The justice was under no obligations to enter it upon his do'cket. It was a mere volunteer act on his, part. So far from being under obligations to enter it, he ought not to have done so. He has no right to burden a transcript with other matters than those the law requires him to place thereon. A party aggrieved by any act or ruling of his may have the same preserved in a bill of exceptions. One was taken in this very case in reference to some other matters, as will hereafter appear. And if a party does not care to avail himself of this right, he has no cause of complaint. The mere fact that this statement is found on the justice’s docket gives us no right to examine and act upon it. It must be properly there, being either of those matters the law directs to be entered, or else preserved in a bill of exceptions. McArthur v. Mitchell, 7 Kansas, 173; Backus v. Clark, 1 Kas. 303; Atschiel v. Smith, 9 Kas. 90. While we do not think this statement properly before us for decision thereon, we may say that it does not appear but that the justice called the case for trial at exactly 10 o’clock by the correct time; and further, that if a justice does delay calling a case a few moments past the trial-hour, as appears by his watch, to allow for differences in time by different watches, or to have a suitable room prepared for the trial, and notifies a party then present that he will call the case in a few moments, and does so call it, he commits no error so far affecting the substantial rights of such party as to compel a reversal. We do not mean by this that a justice may arbitrarily wait an indefinite time,“but simply that an allowance of a few moments, accompanied by notice to a party who is present, works no substantial injury to that party. The other error complained of is presented in a bill of exceptions. The bill of particulars claimed among other things to rec°ver for 22 loads of stone, and 146 feet of fence. The total claim was $179.35, and included many other articles. Upon the trial the justice received and considered evidence to prove that defendant entered upon the land of plaintiff without his permission, and quarried and carried away a quantity of stone, and also entered, tore down, and carried away, certain posts and boards, and that these were the stone and fence sued for, and also received and con sidered testimony tending to prove an account arising on contract. No objection was made to the introduction of this evidence, and no exceptions taken. Besides, it does not appear that there was any effort to recover for the trespass, but only the value of the articles taken. A party can always waive'the trespass and sue for the value of the property taken, and the law will imply a promise to pay. Bernstein v. Smith, 10 Kas. 60. These being the only matters- complained of, the judgment will be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: The only question presented in this case is, whether plaintiff in error was entitled to the benefit of the occupying-claimant law. The facts are these: On November 7th 1870, a patent issued to the Mo. R., Fort Scott & Gulf Rid. Co. for the land in question. . Title passed from the company to defendant in error, first by bond to convey, and then, in September 1873, by deed. One Glover Pickerell settled on the land in 1869, and built a house thereon the same season. In April 1872, plaintiff in error purchased from Pickerell, took a quitclaim deed therefor, and had it duly recorded. There is no evidence as to the condition of the title prior to the patent to the railroad company, and nothing to show that Pickerell was other than a naked trespasser. Counsel in the brief say that the fair presumption is, that the “ title was yet in the United States, unless it yet remained in the Cherokee Tribe of Indians, the original owners of the lands known as the Cherokee Neutral Lands, of which said premises was a part.” It may be that this is a part of those lands, but the evidence fails to show it. All we can gather from the evidence is the description, by section, township, and range, and that it lies in Cherokee county. The patent is not recited, so its recitals avail nothing. (Ephraim v. Garlick, 10 Kas. 280.) Counsel claim that Jay is within both the first and fifth classes .of those entitled under the amendment of 1873 to the benefit of the oceupying-claimant law. (Laws of 1873, p. 203, § 1.) The first class includes all who “ can show a plain and connected title, in law or equity, derived from the records of some public office.” Counsels’ claim cannot be sustained under this clause. A quitclaim deed from a trespasser, can by no ingenuity of construction be called “a plain and connected title, in law, or equity.” It means, a title connected with the legal and unquestioned title by a succession of conveyances, apparently regular and legal, but really passing no title. The case of Krause v. Means, 12 Kas. 335, is a good illustration. Neither does he come within the fifth class. That includes those who have made settlements upon Indian lands, or Indian trust lands. But the testimony, as we have seen, is lacking upon this point. The ruling of the district court was therefore correct, and the judgment must be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: This action was commenced originally in a justice’s court by Able against Stevens. Each party filed a bill of particulars in the justice’s court. Each set forth in his bill 'of particulars a cause of action in favor of-himself, and against his adversary, and arising out of and founded upon contract. Able however claims that the cause of action set forth in his bill of particulars was for a liquidated demand, and that the cause of action set forth in Stevens’ bill of partibulars was for unliquidated damages. We shall decide the case upon the theory that this claim of Able is correct. Able further claims that because Stevens’ cause of action is for unliquidated damages it is therefore not the subject of set-off in this action. The case was tried before the justice— judgment rendered therein — and then appealed to the district court. The case was again tried in the district court. There the court refused to permit the defendant Stevens to prove his cause of action on the ground that it was not the subject of set-off. We think the court erred. In this state any cause of action arising from contract, whether it be for a liquidated demand, or for unliquidated damages, may constitute a set-off, and may be pleaded as such in any action founded on contract, whether such action be for a liquidated demand, or for unliquidated damages. (Civil Code, §§ 94, 98.) While it is not clear beyond all possible doubt, that this is the meaning of our statutes, yet we think that this is the clear import of the same. They provide that, “The defendant may set forth, in his answer, as many grounds of defense, counterclaim, set-off, and for relief, as he may have, whether they be such as have been heretofore denominated legal, or equitable, or both.” (Code, § 94.) And, “A set-off can only be pleaded in an action founded on contract, and must be a cause of action arising upon contract, or ascertained by the decision of a court.” (Code, § 98.) We suppose that there can be no question as to the applicability to this case of these provisions of the code, although the action was commenced in a justice’s court. (Justices Act, § 185.) The construction that we have given these statutes is in accordance with the entire spirit of the code, which attempts as far as possible to have all matters of-controversy between the'litigating parties determined in one action. A plaintiff may now join in one action as many causes of action as he may have, whether legal or equitable, or both, where they all arise out of contracts, either express or implied, and whether they are for liquidated claims, or unliquidated damages, or for something else. (Code, § 83.) We suppose that every lawyer knows that there was no such thing as set-off at common law, and that the whole subject is now governed by statute. The judgment of the court below will be reversed, and cause remanded for further proceedings in accordance with this opinion. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: This was an action of ejectment for half a town lot in Garnett. The facts are these: In October 1861 the town-site of Garnett was preempted by G. W. Ilei;, chair man of the board of trustees, for the use and benefit of the occupants, and patent issued June 1st 1863. On April 11th 1862, Iler conveyed the lot in controversy to the commissioners of Anderson county. This deed was not recorded until November 30th 1863. On April 14th 1863, Iler also conveyed the lot to J. M. Alvey, and this deed was recorded February 2d 1864. In 1869 J. M. Alvey conveyed to C. P. Alvey, the plaintiff below, now defendant in error. The same year the county conveyed to one Hedley, who conveyed to Setter, defendant below, now plaintiff in error. J. M. Alvey had no notice, actual or constructive, of the deed to the county at the time of his deed from Iler. It does not appear what he paid, if anything, for the deed, nor whether the deed to him (J. M. Alvey,) was made in disregard of the claims of C. P. Alvey, or in pursuance of his request. The lot was drawn at the regular drawing of lots by said C. P. Alvey, who was an actual occupant of the town-site, and a stockholder in the Garnett Town Company. It was drawn upon share 153. It was also drawn at the same time by the county of Anderson, being the fifty-sixth lot drawn. The county became interested in the town-site, under an agreement between it and all parties interested in the town-site of Garnett, that if the county-seat should be located there 400 lots in Garnett would be given to the county. It does not appear whether plaintiff was or was not ignorant of the deed of the county to this particular lot, though as an occupant he was a party to the original contract. Upon these facts the court rendered judgment in favor of the plaintiff, defendant in error. The lot was first drawn by the county, first deeded to the county. Why should this priority be set aside, and one holding under a subsequent drawing and subsequent deed be given the lot? It is insisted that the deed to the county was void, because the contract upon which it was based was against public policy. Concede, for the purposes the argument, that the contract was so, and therefore void, and'we do not think it follows that the deed can be avoided. The town of Garnett and the occu pants were in fault equally with the county. And the rule is general, that the law will not in such cases, interfere in favor of either party. If the contract remains executory, the law will neither enforce it, nor award damages for its breach; if already executed, nothing paid or delivered can be recovered back. So here, no deed having passed, and the contract being void, as stated, the county could not have compelled the deed; and on the other hand, the contract having been executed, and the deed passed, neither the town corapany nor ¿he occupants can set it aside and recover the land. And what they cannot do, no one claiming under them can do. Again, it is claimed that the deed is void because of the provision in the act of congress of March 2d 1867, which declares, that “any act of the trustees not made in conformity to the regulations” alluded to in the section granting the right of entry, shall be void. (U. S. Revised Stat. 440, § 2391.) Iler was under the act a trustee for the occupants, and the county could not in the nature of things be an occupant. Therefore, a deed to the county was to one no^ an occupant, and not in conformity to the regulations referred to. It may properly be no^jeed here, that so far as the findings of the referee are concerned, nothing is shown as to the consideration or purpose of the deed. He simply finds that the county drew the lot and received the deed. All the information we have as to the contract is from the answer of the defendant, which alleges ,the making of the contract, and the execution of the deed in pursuance of it. Of course then, while the facts alleged in the answer may be used as against the defendant, they must all be taken together, and it is there alleged that the contract was made by the county with the town authorities who furnished the money to enter the town-site, and with the assent of the occupants, and all other persons interested in the town-site. With the answer out, we have simply the drawing and the deed; with it in, we have also a contract, assented to by the plaintiff, and all other parties interested. Nowhere does it appear for what purpose this lot was con veyed to the county, whether for use as a site for a court-house, jail, or other public building, or purely for purposes of speculation. Now, if a county may lawfully take a deed for a town lot from the authorities of a town for any purpose, and if the party in whose name a town-site is preempted may, with the assent of all the occupants, and parties interested, lawfully deed a lot to the county, then this deed must, as against this objection, be held good, for there is nothing to show the purpose, and it cannot be presumed to have been illegal; and nothing to show a want of assent, and it cannot be presumed that a trustee has violated his trust. Indeed, the plaintiff’s title rests upon á deed made to one not an occupant, and without any apparent right to- a deed. Plaintiff in error devotes a considerable portion of his brief to show that § 13 of ch. 30, Laws of 1859, does not avail the title of defendant in error. Defendant in error yeems in his brief to concede the point; at least, he makes no claim under that section. Nor indeed could he make any successful claim, for the only persons entitled to any rights under it are, “subsequent purchasers for* a valuable consideration, without notice.” And there is nothing to show that plaintiff’s grantor, J. M. Alvey, ever paid any thing for the lot, or that plaintiff was not fully cognizant all the time of the county’s claim and deed. The judgment of the district court must be reversed; and there being no exception to the referee’s findings of fact, the case will be remanded with instructions to enter judgment for plaintiff in error, defendant below, for his costs. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: This is an action to restrain the issue of sale certificates, and the execution of tax-deeds, upon a number of lots belonging to plaintiff in the city of Atchison. It seems to us that this case is pretty fully covered by decisions already made in this court, and that there is scarcely any new question in it for consideration. A preliminary matter is however thus presented: Upon the filing of the petition a temporary injunction was granted. The defendants filed a demurrer to this petition, and thereafter a motion to dissolve the injunction. Now the contention of counsel is, that it was error to hear defendants’ motion to dissolve while .the case stood on demurrer to the petition. Whatever may be the rule elsewhere, or might be the rule here, independent of statute, we think this closes the question. Sec. 250 of the civil code provides that, “ If the injunction be granted without notice,” (and this was so granted,) “ the defendant at any time before the trial may apply upon notice to the court in which the action is brought, or any judge thereof, to vacate or modify the same.” The application here was not to restrain a sale for taxes, but the issue of sale certificates and execution of tax-deeds. Upon this counsel says: “Here is no case of proceedings to embarrass the collection of the public revenues. Every step to collect these taxes has been taken. Now there only remains, upon expiration of time for redemption after sale,- those steps requisite to final confiscation.” As the property in controversy was, for lack of other bidders, all struck off to the county, and not a dollar of money has yet passed into the county treasury, it would seem that any stay of proceedings would most' seriously interfere with the collection of the public revenues. But this question has already been before us and decided. City of Lawrence v. Killam, 11 Kas., 499. It was there held that “equity will not interfere to restrain by injunction the collection of taxes when the property is subject to taxation, the tax legal, and the valuation not excessive, simply because of irregularities in the tax proceedings. And this rule applies alike to general and special taxes, and whether the application be to restrain a sale or enjoin the execution of a deed.” That decision disposes not only of this question, but also of nearly every question made by counsel. The objections to the tax proceedings are stated by plaintiff as follows: 1st. That no due assessment and valuation of each parcel of real estate within the township and city of Atchison was made for the year 1869, and' returned duly verified, etc., before June 1st 1869, nor was plaintiff’s real property so assessed and returned in a book, etc., as required by law. 2d. That the pretended assessment was made for 1869 without the assessor having received the assessment-roll of 1868 before March 1st 1869. 3d. That more than half the taxes were percentage levied by tbe mayor and councilmen of tbe city of Atchison, and the same were not certified to the county clerk before August 15th 1869, or at any other time for 1869. 4th. That the treasurer did not cause notice to be published stating the amount of taxes, etc., on each hundred-dollars valuation, and that he or his deputy would attend at the places of holding elections to receive the taxes, nor did he or his deputy attend in the First, Third, or Fourth wards, etc., to receive taxes for 1869. 5th. That the sale was made without notice thereof being published for four consecutive weeks, commencing between March 1st and 10th 1869, describing the land and lots as on the tax-roll, etc., with a notice that so much of each tract or lot as might be necessary would on the first Tuesday of May, etc., be sold at public auction at his office, for the taxes, etc., nor was such notice posted up for four consecutive weeks, etc. 6th. That the county treasurer did not, prior to February 1st 1873, cause to be published in a newspaper any list of unredeemed lands and lots sold for taxes of 1869, describing the same, etc., with a notice specifying the days limited for the redemption thereof. Now it is unnecessary to determine how these defects would be regarded in an action at law, in which the validity of a deed based upon these proceedings was involved. It may be that they would defeat the title, either before or after the running of the statute of limitations, or it may be that they would be considered' mere irregularities such as are covered by §113 of the tax law; (Gen. Stat., p. 1057.) The principles which would control in such an action are entirely different from those which obtain here. Here the question is, whether in equity and good conscience the plaintiff ought to have paid these taxes. And to this question the answer must manifestly be in the affirmative. He makes no pretense that the property was not subject to taxation. Nothing is intimated to impeach the justice of the tax. True, he says that more than half was levied by the authorities of the city of Atchison, and not duly transmitted to the county clerk; but he does not question the right of those authorities to make the levy, or that it was in the slightest degree in excess of the amount absolutely necessary, or for any illegal or im proper purpose. Nor does he show any excessive or unfair valuation, or valuation by the wrong officer. The objections run to the manner in which that valuation was reached — to alleged omissions and deviations from the statutory mode of procedure, and not to the result. Thus, for aught that appears in his petition, his property ought to have, been charged with these taxes, the taxes were legal, just, and fair, and the valuation of his property made by the proper party, exactly what it ought to have been. It seems as though the mere statement of these propositions was enough to show that he makes no case for the interference of a court of equity. The judgment will be affirmed. All the Justices concurring.
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The opinion of the court wá§ delivered by Valentine, J.: This was an action of replevin, brought by the Howe Machine Company against James H. Clark, to recover the possession of two horses, one set of double harness, and one set' of thills. The judgment in the court below was in favor of the defendant and against the plaintiff, and the plaintiff brings the case to .this court for review. The theory of the plaintiff with regard to such property is as follows: The plaintiff originally owned the property. It employed one H. E. Tracy to procure sales of its sewing-machines in Johnson county, and furnished him with an “outfit” for that purpose, consisting of said property, together with some other property. The property in controversy was hired to Tracy upon certain conditions, which conditions were immediately broken by Tracy, and the plaintiff from that time not only claims to have owned the property, but also claims to have had the right to the immediate possession thereof. Afterward Tracy sold said horses and harness, and delivered the same, together with said thills, to the defendant Clark, without the knowledge or consent of the plaintiff./The petition was an ordinary petition in replevin. The answer was a general denial, without any prayer for a return of the property, or for damages, or indeed for anything else. The action was tried upon these pleadings; and the plaintiff claims that many errors were committed during the trial. We think there were not as many errors committed as the plaintiff claims, and yet we think there was sufficient error committed to require a reversal of the judgment. It was error for the court to permit defendant to prove the statements of Tracy formerly made by him concerning this and other property. The defendant claimed that Tracy had authority from the Howe Machine Company to sell this identical property; and, for the purpose of proving that Tracy had such authority, introduced evidence over the objections of the plaintiff, but with the permission of the court, showing that Tracy had at different times stated that he had such authority, and that he had authority to sell not only this but other property belonging to the company. Now it is competent to prove a parol agency, and its nature and scope, by the testimony of the person who claims to be the agent. It is competent to prove a parol authority of any person to act for another, and generally to prove any parol authority of any kind, by the testimony of the person who claims to possess such authority. But it is not competent to prove the supposed authority of an agent, for the purpose of binding his principal, by proving what the supposed agent has said at some previous time. Nor is it competent to prove a supposed authority of any kind, as against the person from- whom such authority is claimed to have been received, by proving the previous statements of the person who it is claimed had attained such authority// It was also error for the court to allow the defendant to attempt to impeach the testimony of the witness Blackman, by reading to the jury a portion of a deposition formerly taken of Blackman, without having first called Blackman’s attention to any portion of said deposition-, and without having first given Blackman an opportunity to explain. It is not*necessary to consider any of the other alleged errors. /The judgment of the court below will be reversed, and cause remanded for a new trial/' All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: This was an action for the recovery of certain real property, to-wit, Lot 2, in Block 2, in the city of Atchison. In this opinion we shall speak of the plaintiffs, and those under whom they claim, as the “ plaintiff,” and the defendants, and those under whom they claim, as the “defendant,” and shall not mention particularly each separate person. The plaintiff was the original owner of the lot in controversy. The defendant holds the same under a tax- deed. The court below held the tax-deed void, but also held that the defendant was entitled to the benefit of the “ occupying-claimant act,” (Gen. Stat. 749, § 601, et seq.,) and also of § 117 of the tax-law, (Gen. Stat. 1057.) The plaintiff claims that the court below erred, and brings the case to this court for review. The facts of the case are substantially as follows: The plaintiff neglected and failed to pay the taxes on said lot from 1860 up to the commencement of this action. In May 1862, the lot was sold to the county of Atchison, for the taxes of 1861. The taxes for the years 1862 and 1863 were charged up against said lot. In May 1864, the defendant paid into the county treasury the amount of the taxes, interest and costs then due on said lot for the years 1861, 1862 and 1863, and obtained a tax-sale certificate for the lot, assigned to himself by the county treasurer of said county. In June 1864, the defendant obtained a tax-deed on this certificate, and had the same immediately recorded in the county register’s office, and then took possession of the property, and has had possession of the same ever since. He has also made lasting and valuable improvements on said lot, and has paid all the taxes accruing thereon ever since his supposed purchase of the tax title. Now, under these circumstances, what are the respective rights of the plaintiff and defendant? Now, while we think the tax-deed is void upon its face, and confers no title upon the defendant, yet we think the defendant is entitled to the benefit of the occupying-claimant act, and of the provisions of § 117 of the tax law. As to the defendant’s right to the benefit of the occupying-claimant act, we think the case of Stebbins v. Guthrie, 4 Kas. 353, is sufficient authority. Although said tax-deed is void upon its face, yet it takes a process of reasoning to make it apparent; and hundreds and perhaps thousands of just such deeds have been executed in the various counties in this state; and until a judicial decision of this court was promulgated, announcing that such deeds were void upon their face, the whole question was considered both by bench and bar as enveloped in considerable obscurity and uncertainty. An occupant of land under such a deed is entitled to the benefit of the occupying-claimant act. And for the same reason, and others, we think the occupant of land under such a deed is entitled to the benefits of §117 of the tax law. Said section reads as follows: “Sec. 117. If the holder of a tax-deed, or any one claiming under him by virtue of such tax-deed, be defeated in an action by or against him for the recoyery of the land sold, the successful claimant shall be adjudged to pay to the holder of the tax-deed, or the party claiming under him by virtue of such deed, before such claimant shall be let intp possession, the full amount of taxes paid on such lands, with all interest and costs as allowed by law, up to the date of said tax-deed, including the costs of such deed and the recording of the same, with interest on such amount at the rate of twenty per cent, per annum, and the further amount of taxes paid after the date of such deed, and interest thereon at the rate of twenty-five per cent, per annum.” This statute was enacted in the interest of equity and justice, and its provisions should be so construed as to promote justice. It is wholly unlike that class of statutes which attempts to give the land of one person to another for an inconsiderable sum. The former is liberally construed, the latter is strictly construed. The former was enacted for just such cases as the one at bar. It was enacted for void tax-deeds, and not for valid tax-deeds. A person holding under a valid tax-deed has no need of such a statute. Only persons holding under void tax-deeds need such a statute. The laws under whose provisions tax titles are created are usually construed strictly, and therefore, we hold that the tax-deed in this case is void. But laws enacted for the purpose of enforcing, in a fair and reasonable manner, the delinquent members of society to discharge that moral obligation resting upon them as well as upon others to bear their proportionate share of the public burdens, are always construed liberally, so as to promote their object, and therefore we hold that before the plaintiff can recover his. property he must pay to the defendant the taxes which he ought to have paid a long time ago to the public officers, and which the defendant has himself paid. As to the duty of a person to pay his taxes, see Gulf Rld. Co. v. Morris, 7 Kas. 230, et seq. As to the equitable rule in granting relief to plaintiffs who seek to avoid the payment of their taxes, see Challiss v. Hekelnkœmper, 14 Kas. 475, 477, and cases there cited. The judgment of the court below is affirmed. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.’: On July 27th 1867, the Central Branch Union Pacific Railroad Company owned the W.J of the N.'W’.J of section 21, township 3, range 17, in Brown county, and on that day entered into a written contract for the sale of said land to Thomas J. Payne. Payne paid $10 down, and was to make two other payments at stated periods up to July 27th 1876, when the railroad company was to convey said land to Payne, or to his heirs or assigns, by a good and sufficient warranty deed. In March 1868, Payne, in consideration of $42.50 to him paid, assigned his claim to said land to Alfred S. Jones, by a written assignment indorsed on the back of said contract. In February 1869, Jones, in consideration of $500 paid to him, assigned his claim to said land to Daniel Reaves, (plaintiff below, defendant in error,) by a like written assignment indorsed on the back of said contract. Reaves took immediate possession of said land, and with his wife and family has occupied the same as his homestead ever since. On the 15th of October 1869, Reaves, by a like written assignment indorsed on said contract, except that the assignee’s name was left blank, assigned his claim to said land to secure the payment of a certain promissory note of $150 held by Samuel Lappin, and delivered said contract with the indorsements thereon to said Lappin. This assignment was made, and the contract and indorsements delivered, without the knowledge or consent of the wife of said, Reaves. Reaves and his grantors made the first five payments on said contract as they became due. Reaves continued to occupy said land as his homestead, and made improvements thereon of the value of $300. Afterward, A. K. Moore (defendant below, plaintiff in error,) obtained said contract and assignments from said Lappin. What he paid for them, or how he got them, is not shown. His name was inserted in said blank assignment from Reaves to Lappin, so as to make the assignment appear tobe an assignment from Reaves to Moore; but Moore did not make the insertion, and there is nothing in the record that shows that he knew how or when it was inserted, or in what manner the assignment was made. From anything appearing in the record he may have properly supposed himself to be a bona fide purchaser of the land. On the 21st of December 1871 Moore paid the other five payments on said contract, and procured a deed to be executed from the railroad company to himself for said land. At the time he made said payments there were none of them yet due. Upon these facts the court below rendered judgment, that plaintiff Reaves should pay to the defendant Moore the amount with interest, to-wit, $292.40, which Moore in good faith paid to the railroad company, and that Moore should convey to Reaves by deed said land. Moore complains of this judgment. We however perceive no error therein prejudicial to Moore. Reaves was the equitable owner of said land. He held the same as his homestead. (And that such may be done, see Tarrant v. Swain, just decided, ante, pp. 146, 148, and authorities there cited.) And being in the actual possession thereof, every person was bound to take notice of his homestead interests. And therefore, although Moore may have been a bona fide purchaser in fact of said land, yet in law he took it subject to all the homestead interests of the plaintiff. The blank assignment to Lappin, even if it had been valid, would have been nothing more than a conditional alienation of the plaintiff's equitable interest in said land, in the nature of a mortgage to secure the payment of said $150 note, and would not have been an absolute conveyance to Lappin or Moore of the plaintiff's equitable title. But, as the assignment was of land held by the plaintiff as his homestead, and was made by the plaintiff alone, without the consent of his wife, the assignment itself was and is absolutely void. (McKee v. Wilcox, 11 Mich. 358; McCabe v. Mazzuchelli, 13 Wis. 478.) We think the following is the law of this case: An equitable owner of real estate may occupy and hold the same as his homestead, subject to all the rights, privileges, immunities and disabilities given and imposed by the homestead-exemption laws. (Following Tarrant v. Swain, supra.) And being in the actual occupancy of the land, all persons must take notice of his homestead interests. He cannot transfer his equitable title to the land, even conditionally, while he occupies the same as his homestead, except with the consent of his wife; and where an attempt is made by the husband alone, without the consent of his wife, to transfer such title, so as to secure the payment of a preexisting debt not previously a lien on the homestead, such debt does not thereby become a lien on the homestead. Where the transferee in such a case afterward procures the legal title to himself, without the consent of the wife, he holds such legal title in trust for the occupants of the homestead, and is entitled to be reimbursed only for such sums as he has actually and properly paid to disencumber the property from valid liens. The judgment of the court below is affirmed. All the Justices concurring.
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The opinion of the court was delivered by "Valentine, J.: This was an action brought by Lizzie Lantier, administratrix of the estate of H. Lantier deceased, for goods sold and delivered. An order of attachment was issued in the case at the commencement of the action. The final judgment of the court below was, that the plaintiff recover of the defendant for the goods sold and delivered, and that the goods attached be sold to satisfy such judgment. The defendant below now complains in this court. On November 10th 1873, and previous thereto, the defendant was a resident of Eureka, Greenwood county. On the night of that day he left Eureka, intending to become a nonresident of the state of Kansas, and a resident of the state of Iowa. On the next day the plaintiff commenced this action. She also at the same time obtained an order of attachment, which was served on the same day. The affidavit upon which the attachment was issued set forth as grounds therefor, the first, second, third, and eighth statutory grounds for attachment. (Code, § 190; Laws of 1870, pp. 171, 172.) The affidavit was sufficient. But no bond or undertaking in attachment was ever executed or filed. Afterward, the defendant moved the court to dissolve the attachment on various grounds, among which was, that “ the defendant was not at the time said order of attachment was issued and served ‘a nonresident of the state of Kansas/ as the plaintiff alleged in her affidavit, nor was any attachment bond ever filed in the case.” On the hearing of the motion both of these grounds were shown to be true, and yet the court overruled the defendant’s motion. The court probably believed, that, in law, the defendant was a nonresident. In this we think the court erred. In all cases of attachment, except where the defendant is a nonresident, or a foreign corporation, an attachment bond must be given by the plaintiff. (Code, § 192; Laws of 1870, p. 172, § 5.) And the defendant in this case was neither. It is true, he had determined to become a nonresident of the state; but still he was still in the state when the order of attachment was issued and served, and was therefore not a nonresident. A resident of the state can become a nonresident only by leaving the state with the intention of becoming a nonresident. In the present case the defendant had not left the state Avhen the order of attachment was issued and served. In one more day he probably Avould have been out of the state, and therefore a nonresident. But that one day is as important as though it had been a year. The order of attachment should have been dissolved. The petition of the plaintiff was not very formal, but still Ave think it stated facts sufficient to constitute a cause of action. It probably Avould have been better if the petition had stated all the facts of the case, and left nothing for the defendant to do but deny „generally. It stated that the plaintiff “sold to the said A. Ballinger a stock of drugs, oils, paints, .lamps, stationery, and furniture pertaining to a drug store, for the sum of $800; ” and “ that the said sum of $800 has never been paid, nor any part thereof, but that the same yet remains due and unpaid.” The petition did not mention, as the fact really was, that three promissory notes, not due when the action was commenced, were given for said $800. The answer of the defendant we think was also sufficient; and as it alleged some new matter constituting a defense to the plaintiff’s petition, we think it needed a reply from the plaintiff. The first defense stated in the answer was merely a general denial, and put in issue the truth of the allegations of the plaintiff’s petition. The second defense was but little more than a general denial. If however‘the defendant had, under this defense, shown upon the trial that any of the “ drugs, oils, paints, lamps, stationery, and furniture pertaining to a drug store,” were in fact, as he alleged, “ spirituous, vinous, or intoxicating liquors,” within the meaning of the dramshop act, (Gen. Stat. 399, et seq.,) then, as the plaintiff had filed no reply, it is possible that she could not have shown that she had a license to sell that kind of goods. But upon this question we express no opinion. The third and last defense stated in the answer, substantially admits the plaintiff’s cause of action, except that it denies that the amount for which the goods were sold was due at the commencement of the action; and by such admission, and to that extent, it substantially overrules the first and second defenses.' (Butler v. Kaulback, 8 Kas. 668, 671, et seq.) But, the defendant, after substantially admitting the plaintiff’s cause of action, then set forth as new matter, in avoidance thereof, that a higher security was given, to-wit, that three promissory notes were given for the debt, describing the notes, and showing and alleging that neither of these notes was due when this action was commenced. Now we think this stated a good defense to the plaintiff’s action, and as it was new matter it needed a reply to put it iu issue; and as no reply was ever filed, it must be taken as true. (Code, §128.) Hence, the court below erred in trying the cause, making findings, and rendering judgment, over the objections of the defendant. According to the evidence, and the findings of the court below, the plaintiff had a good defense to the defendant’s answer, and she ought to have set it up in a reply. Or probably it would have been better if she had set forth all the facts of the case in her original petition. It would seem from the evidence, and the findings of the court below, that said goods were sold to the defendant for $800, to be paid for in cash down, or in three equal promissory notes, with approved security, due in three, six, and nine months, respectively. The defendant elected to pay with the notes, and furnished them, and they were accepted by the plaintiff; but the name of the surety agreed upon by the parties was forged to the notes. The judgment of the court below will have to be reversed, and cause remanded for further proceedings. We think that such proceedings may be had in the case that substantial justice may finally be done between the parties. It was evidently the strong desire of the trial court to do justice between the parties, that caused it to err in the above-named particulars. Judgment reversed. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: This was an action against J. E. Stone, sheriff of Montgomery county, for voluntarily permitting the escape of a party held by him on mesne process in a civil action. The defendant demurred to the plaintiffs’ petition on the ground that it did not state facts sufficient to constitute a cause of action. The court below sustained the demurrer, and the plaintiffs now bring the case to this court. We are at a loss to know why it is supposed that the petition below is insufficient; and the defendant has taken no trouble to inform us, either by brief, or oral argument. The petition seems to state a good cause of action at common law, or at least we have discovered no good reason why it does not do so. We have given the subject however but very little critical examination, as we do not consider it to be our duty to assist either party by laboriously hunting for weak places in the other party’s case. The petition however does not seem to state a good cause of action against the sheriff, as bail, under §§164 and 165 of the code. (Gen. Stat. 659.) This is probably the reason why it is supposed that the petition does not state any cause of action against the sheriff. We think however that the only other facts needed, in addition to those already stated, to make the petition a good petition under the code, as well as at common law, are the following: The petition does not allege that the original case in which the party escaping was arrested was ever prosecuted to final judgment, or that such party had failed to “render himself amenable to the process of the court” on such judgment, (Code, §159,) or that an execution issued on such judgment against the body of such party had ever been returned “not found.” (Code, §165.) Now as the petition in this case states a good cause of action at common law, and not a good cause of action under the code, the only question involved in the case is, whether the common-law action in any form still survives. We think it does. While it has no doubt been modified to some extent by our laws and institutions, yet we do not think that it has been wholly abolished. (Smith v. Knapp, 30 N. Y. 581.) According to the weight of authority we think the damages recoverable in the two actions are different. In the common-law action, as it now exists, only the actual damages sustained can be recovered; while in the action given by the code the plaintiff may recover as damages the amount of the judgment rendered in the original case, with interest and costs. (Code, §165.) The common-law action, as it now exists, is analo gous to the old common-law action on the case for an escape. The action under the code for an escape, is analogous to the old action of debt under the English statutes for an escape. With these views it follows that the judgment of the court below must be reversed. The cause will therefore be remanded to the court below with the order that the demurrer to the petition be overruled, and for further proceedings. Judgment reversed. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: This action was commenced in the district court of Cloud county for the purpose of perpetually enjoining the collection of a certain tax. The plaintiff then applied to the judge of the probate court, the judge of the district court being absent from the county, for a temporary injunction to restrain the collection of said tax until the case could finally be heard in the district court. The judge of the probate court refused to grant said temporary injunction, and of that refusal the plaintiff now complains. No application was made to the district court, or to the judge thereof, for a temporary injunction in this case, and no attempt has been made to have the district court or the judge thereof review the order of the probate judge refusing said temporary injunction. The first question to be considered in this case, and the only one, if we answer this in the negative, is, whether a petition in error will lie to this court from an order of the probate judge refusing a temporary injunction. There is no law that authorizes any such thing. There is a statute that provides that, “The supreme court may also reverse, vacate or modify any of the following orders of the district court, or a judge thereof: First, a final order. Second, an order that grants or refuses a continuance, discharges, vacates or modifies a provisional remedy, or grants, refuses, vacates, or modifies an injunction,” etc. (Civil Code, § 542.) This statute provides for and' authorizes the supreme court to review aa order made by the judge of the district court refusing an injunction. But there is no statute that provides for or authorizes the supreme court to review 'any order made by the probate judge. This petition in error must therefore be dismissed, for want of jurisdiction in the supreme court to adjudicate upon matters involved therein. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: This was an action of ejectment brought by the plaintiff in error, plaintiff below, for the recovery of a tract of twelve acres, in Brown county. Judgment was rendered for the defendant, and of this judgment plaintiff complains. The case was tried by the court, without a jury. Special findings of fact were made. No motion was made to set aside these findings, no exceptions taken to them, and no application for any further findings. . The errors alleged are, “that the conclusions of law are not the law of the case on the facts found; that on the facts found, plaintiff was entitled to recover the- premises, and that plaintiff was entitled to judgment and defendant was not.” Hence, the question presented to us is, which party upon the pleadings and facts found is entitled to judgment? We need not inquire whether the testimony Avas properly admitted, whether it sustained the findings, nor whether other- facts were also proved by it. McGonigle v. Gordon, 11 Kas. 167. This we think eliminates some matters discussed in the briefs of counsel. The petition was an ordinary petition in ejectment. The answer alleges a written contract for the exchange of farms; that subsequently, it was verbally agreed between the parties that' this contract should be set aside, and that plaintiff should, deed the twelve acres in controversy and a lot in North Robinson to the defendant; and the defendant should pay therefor $250; that in pursuance of said agreement the lot was selected, and deeded; that plaintiff put the defendant into possession of the twelve acres, and the defendant has put thereon lasting and valuable improvements, describing them; that the defendant has paid seven dollars, that there is due $243, which the defendant is willing to pay and desires a specific performance. A reply was filed containing a general denial. Five findings of fact were made: 1st, That plaintiff had the legal title. 2d, That the parties made the written contract, that plaintiff’s wife did not sign that contract, and that the land plaintiff was to deed was that upon which he then and still resided. 3d, That this written contract was set aside, and a parol contract made as stated in the answer; that under this parol contract defendant went into possession, and made permanent and valuable improvements, and that this was done with the knowledge, consent, and approval of the plaintiff, and that defendant has ever since resided thereon. 4th, That the money agreed to be paid was to have been paid on the 1st of June after the contract, but has not been paid, in whole or in part, for want of funds, though payment has been frequently demanded. 5th, That plaintiff’s wife is still living. Upon these pleadings and findings did the court err in refusing to give plaintiff a judgment for possession, and in giving defendant a judgment for costs? We think not. The court tendered leave to the plaintiff to amend his petition, so as to make it one to foreclose his lien for the unpaid purchase-money, but he declined the offer, and claimed the land. Counsel in their brief discuss the question of a parol alienation of the homestead. But there is nothing in pleadings or findings from which it can in any way be inferred that this twelve acres was a part of the plaintiff’s homestead. It appears that the land mentioned in the original written contract was the land on which he resided, but it does not appear that this twelve acres is a part of that tract. If we. look to the testimony it would seem probable that it was a part of the homestead; but we find there also evidence tending to show the wife’s assent to the alienation, and improvements, and we suppose she can be bound equally and in the same manner with her husband. Edwards v. Fry, 9 Kas. 426. The case then, as it stands, is a case of a parol contract for the sale of lands, accompanied by the taking of possession and the making of permanent and valuable improvements, with the knowledge and assent of the vendor. In this the improvements were three or four times the value of the land. This, equity declares, takes the case out of the statute, and makés a contract binding upon the vendor, equally with one in writing. There is therefore a contract to sell lands, with, payment promised at a subsequent day, and not made as promised, possession taken and improvements of great value made'. Upon these facts will ejectment lie? We think not. Courtney v. Woodworth, 9 Kas. 443. The judgment will be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: The only error complained of in this case is the granting of a new trial. This, under our statute, is doubtless an order which is reviewable; but as was said in the case of Field v. Kinnear, 5 Kas. 238, “ this court will require a much stronger and clearer showing of legal error, or abuse of judicial discretion, before it will interfere, when the new trial has been granted, than where it has been refused^ for the very obvious reason, that where a new trial has been granted an opportunity is afforded for another full and fair trial upon the merits of the case; but where it has been refused it operates as a final adjudication between the parties.” Here the new trial was granted because in the judgment of the district coui’t the verdict was against the evidence. That there was a contradiction in the testimony is conceded. Indeed, it is stated in the record that the court sustained the motion fora new trial upon the ground that it “believed the testimony of Culligan rather than that of Boone.” Now, it is peculiarly the province of the trial court to see that the jury have not erred in weighing the testimony. Not unfrequently jurors, little used to the sifting and weighing of evidence, are misled, and give undue importance to some of the testimony, or undue credence to some of the witnesses. It is essential to the due administration of justice that there be some tribunal to correct these errors, and none so competent or fitting as the court who with them has listened to all the evidence, seen all the witnesses, noticed all the indications in each witness of truthfulness or falsehood. In the very nature of things, an appellate court, which sees only so much of the case as can be reduced to writing, is wholly inadequate to such a duty. Hence, great reliance is placed upon the judgment of the trial court. "When it approves the finding of the jury, and decides that there was evidence sufficient to sustain it, very rarely is that decision disturbed. The records of this court abundantly show, that upon any question of fact, that is almost invariably the end of controversy. It is useless to cite cases. On the other hand, when the trial court fails to approve the findings of the jury, this court must for the same reasons accept that as the legal and proper conclusion. The number of witnesses does not always decide the weight of evidence; and though Boone’s testimony may, as counsel state, have been supported by other witnesses, yet Culligan’s solitary testimony may. properly have outweighed all on the other side. The district court so thought, and we cannot say there was any error in so holding. Again, counsel for plaintiff in error contend there was error in the ruling of the district court because the motion for a new trial was not broad enough. The jury returned a general verdict, and with it answers to some questions of fact which had been duly submitted to them. The motion was, “'to set aside the verdict, and grant a new trial.” Nothing was said in the motion about the answers returned by the jury. Counsel claim that as no motion was made to set them aside they still stand, and must control any subsequent verdict, and therefore a new trial is unnecessary and improper. We do not so understand the law. When the verdict was set aside and a new trial granted, everything appertaining to the verdict fell; and the case stands for trial as though no trial had ever been had. We see no fact established by undisputed testimony conclusive against the claim of the plaintiff. The judgment will be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: The only questions involved in this case which we shall consider are as follows: First, Is the act of the legislature, entitled, “An act to provide for the regulation of the running at large of animals,” approved February 24th 1872, (Laws of 1872, p. 384,) commonly known as the “herd law,” constitutional and valid? Second, Is a certain order made by the board of county commissioners of the county of Morris, prohibiting certain stock from running at large in a portion of the townships of said county, and not prohibiting such stock from running at large in the whole of the county, valid? We must answer the first of these questions in the affirmative, and the second in the negative. That the act is constitutional and valid, see thé case of Noffzigger v. McAllister, 12 Kas. 315; and that the act does not apply to townships, but to counties, see the act itself. Section 1 of the act reads as follows: “Sec. 1. The board of county commissioners of the different counties of this state shall have power at any session, after the taking effect of this act, to direct by an order what animals shall not be allowed to run at large within the bounds of their county.” There is no provision authorizing the county board to “direct by an order what animals shall not be allowed to run at large within the bounds of” any township, school district, road district, or fraction thereof. The whole power that the commissioners possess to prohibit stock from running at large, they get from said § 1, and unless that should clearly give them the power to prohibit stock from running at large in fractions of the county, we should not hold that they possess any such power. The judgment of the court below is reversed, and cause remanded for further proceedings. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: This was an application to the judge of the court below, at chambers, for a temporary injunction to restrain the defendant, as treasurer of Washington county, from selling the S.W.J of section 20, township 2, range 5, in said county, for taxes assessed upon said land for the year 1873. The plaintiff purchased said land of the state of Kansas, the same being a portion of the ninety thousand acres of land granted by the government of the United States to the state of Kansas under the act of congress entitled, “An act donating public lands to the several states and territories which may provide colleges for the benefit of agriculture and the mechanic arts,7 approved July 2d, 1862; (12 U. S. Stat. at Large, 505.) He purchased said land under the provisions of an act of the legislature of Kansas entitled, “An act for the sale of lands belonging to the state agricultural college,” approved February 22d, 1866; (Gen. Stat. 78.) Said land was sold December 6th, 1867, and the purchase-money was to be paid “ in eight equal annual installments, with ten per centum interest on each installment, payable annually, the first installment to be paid at the date of purchase,” (Gen. Stat. 78, §2,) and the last installment to be paid December 6th, 1874. Plaintiff paid the first installment at the date of the purchase; but whether he has paid any of the other installments, is not shown. When plaintiff purchased said land he received only a bond for a deed, and gave his-promissory notes for the balance of the purchase-money. At the time said land was assessed and taxed in 1873, all of said notes except two were due. Whether any of them, or some of them, or all of them, had been paid at that time, is not shown. We shall assume however that all of those which had become due up to that time were paid, and those which had not yet become due were not paid. No patent had yet been issued by the state to the plaintiff for said land. The main question therefore presented by these facts, and indeed we think the only one, is, whether said land was taxable for the year 1873. We suppose it will be conceded that the legal title to said land still remained in the state of Kansas when said land was taxed, and that the equitable title thereto had been transferred to the plaintiff. The purchaser of such lands is not required, under the statutes, to do anything more than to pay his eight annual installments of the purchase-money, with interest; and there is no provision made by statute or otherwise for any forfeiture of the land back to the state on failure by him to make such payments. Hence, the whole question of the forfeiture of the land in such cases would rest upon broad equitable principles; and as equity abhors forfeitures, but few forfeitures would be declared. Therefore, under such circumstances we think the plaintiff holds the equitable title to said land; and if so, then we think the land is taxable. Even where the United States holds the legal title, and an individual holds the equitable, the land is taxable. (McMahon v. Welsh, 11 Kas. 291, and cases there cited.) But do the laws of Kansas make this kind of land held in this manner taxable ? Now there can be no question as to the power of the state to tax all land within within its borders not belonging to the United States, or to Indians, even though the state may own the land itself. The only question is, whether the state has attempted to make these lands taxable. The first section of the tax law provides, that, “all property in this state, real and personal, not expressly exempted therefrom, shall be subject to taxation.” (Gen. Stat. 1019, § 1.) Now are these laws “ expressly exempted” from taxation? We think not. The constitution provides that “ all property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, and personal property to the amount of at least two hundred dollars for each family, shall be exempted from taxation.” (Const., art. 11, § 1.) This is the only constitutional exemption of any kind of property from taxation. Section 3 of the tax law among other things provides, that “The property described in this section, to the extent herein limited, shall be exempt from taxation. * * * Fifth, All property belonging exclusively to this state, or to the United States.” This is the only provision of the statutes that may be supposed to have any application to this question. No one will suppose that the lands are exempt from taxation after being sold, merely because the proceeds of the sales are to be used for educational purposes only; (Washburn College v. Shawnee Co., 8 Kas. 344; Vail v. Beach, 10 Kas. 214; St. Mary’s College v. Crowl, 10 Kas. 442, 450;) hence we have not quoted the statutory provisions exempting property used “exclusively” for educational purposes. Now, the land in question is not “ used exclusively for state purposes,” as required by the constitution in order to make it exempt from taxation; and it does not belong to the state exclusively, as required by the statute, in order to exempt it from taxation. Indeed, the land is not used for state purposes at all, and the state only holds the legal title, with a lien upon the equitable title, to secure the payment of the unpaid purchase-money. The purchaser has the entire use of the land, and has the entire equitable title, subject only to a lien upon the same for the unpaid purchase-money. (With reference to this kind of lien, see Stevens v. Chadwick, 10 Kas. 406; Curtis v. Buckley, 14 Kas. 449.) Under § 1 of the tax law, land must be “ expressly exempted,” in order to be exempt from taxation. But in this case the land is not exempted even by implication. It will be the duty of the board of regents, and of the legislature which meets annually, as well as the purchaser of the land, to see that no tax title is obtained against the land. The order of the judge of the court below, refusing the temporary injunction, is affirmeS. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: At the commencement of this action a temporary injunction was allowed to restrain the defendant ■ Millspaugh from erecting a mill-dam on Walnut river, in Cowley county, so as to cause the water thereof to flow back and into Dutch creek, a tributary of Walnut river, and thereby to overflow the plaintiff’s land. Afterward the judge of the court below, at chambers, vacated the order of injunction; and the plaintiff, excepting thereto, brings the case to this court for review. The reasons urged for and against the temporary injunction are very nearly equally balanced, and therefore, as district courts, and the judges thereof, have considerable discretion in allowing or disallowing, and in sustaining or vacating temporary injunctions, we must sustain the order of the judge below vacating the temporary injunction allowed in this case. Even if the reasons in favor of sustaining a temporary injunction should slightly preponderate over those against it, still that would not be sufficient to authorize this court to reverse an order of the district court or a judge thereof vacating a temporary injunction, unless the preponderance should be so great that this court could say that the district court or judge had abused its or his discretion. The order of the judge of the court below is affirmed. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: In the year 1872 plaintiff and one Peter Aller were the owners, as partners, of the Marion County Bank, an unincorporated bank in the town of Florence, and county of Marion. Plaintiff resided in Shawnee, and Peter Aller in Marion county. The latter was the cashier and principal accounting officer. As such, he listed the entire personal property of the bank for taxation in the county of Marion. Was it properly all taxable in that county? or, only the interest of Aller there, and the interest of plaintiff in the county of his residence? This is the question presented in this case. And it is a question involving merely the construction of our statutes; for of the power of the legislature to separate for the purposes of taxation, the situs of personal property from the domicile of its owner, there can be no doubt. Tappan v. National Bank, 19 Wall. 490. Nor any of the fact that, unless it has so separated it, it is taxable at his domicile. This general doctrine of the common law, expressed as it is by the maxim, mobilia personam sequuntur, finds also recognition in our tax law. “All personal property shall be listed and taxed each year, in the township or city in which the person charged with the tax thereon resided on the first day of March.” (Gen. Stat. p. 1023, § 8.) This clause came up for consideration in the case of Griffith v. Carter, 8 Kas. 565. There the plaintiffs, partners in business, all resided in Douglas county, but had a stock of goods in Coffey county in charge of an employé. The former was held the situs of the stock for taxation. (A better rule has been since established by the legislature: Laws of 1874, p. 210.) Counsel for plaintiff mainly rely upon this case of Griffith v. Carter, and consider it decisive. And if the clause of the statute quoted was the only one bearing upon the question, there would be no room for doubt. But in § 7 we find this provision : “The property of persons or corporations, whose assets are in the hands of receivers, shall be listed by such receivers, and the property of every other corporation, company, or firm, subject to taxation under this act, shall he listed by the principal accounting officer, or by an agent or partner thereof.” This seems to contemplate that the property of a firm should be listed as a whole, and not that each partner should list his property separately. The partnership is here regarded, as it is for so many other purposes in the law, as distinct from the individuals composing it, as if it were a third person. And it, as a single owner of so much property, is compelled to list the same for taxation. Corporations, companies, and firms, are placed upon the same basis. They are treated as separate, independent owners of property. The same thing appears elsewhere in the tax law. See §§ 4, 5, 6, and 8, in which mention is frequently made of “person, company, or corporation.” Now, effect must be given if possible to every portion of a law. By sustaining the listing made by Aller, we do in this case give effect to both provisions quoted. The property of the firm was listed as an entirety; it was listed by the-principal accounting officer, and a partner; and it was listed in the township in which the person charged with the tax resided, for each member of a firm is chargeable with its entire debts. In fact, a partner’s interest in the partnership property is a right to his share of whatever remains after all the partnership debts are paid. The whole of this tax was chargeable upon Aller, and might have been collected from his separate property. The firm too, so far as it had a residence distinct from the residence of the different partners, resided in Marion county. This case differs from that of Griffith v. Carter in this, that all the partners there resided, and the firm of Griffith, Duncan & Duncan which owned the goods, was located in Douglas county, so that there was no one in Coffey county who could properly be said to be chargeable with the tax, or whose property would be at all diminished by its payment. Listing the property in Douglas county, they listed the property of the firm as a whole, listed it by the partners, and listed it in the township in which all the persons charged with the tax resided. The difference is obvious and vital. Upon the facts as stated, while the case is not free from doubt, we think the listing by Aller must be sustained, and the judgment of the district court will be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: This was an action of ejectment. Defendant in error, plaintiff below, relied on a chain of title from government — plaintiff in error, defendant below, upon a tax deed. Four questions are presented. It is objected that the acknowledgment to a deed in June 1859, was insufficient, because taken before an officer not authorized to take acknowledgments. The officer was the deputy of the clerk of the probate court. This must be held good. An acknowledgment before the clerk of a court having a seal, was sufficient. Comp. Laws, p. 355, § 14. The probate court was such a court, and had a clerk. See Gen. Laws of 1858, p. 202, §§ 34 to 37; Laws of 1859, p. 332, § 2; Laws of 1859, p. 341, §§ 40 to 43. Such clerk might lawfully appoint a deputy, and such deputy could lawfully perform any ministerial office unless- specially enjoined upon the clerk. Laws of 1859, p. 341, § 41. Whitford v. Lynch, 10 Kas. 180. Again, it is objected that an acknowledgment to a deed was taken after the suit commenced. The deed was dated and irregularly acknowledged before the commencement of the action, and on the first trial' ruled out on account of this defect in the acknowledgment. Intermediate the two trials, it had been correctly acknowledged, and now the objection was, that this last acknowledgment was subsequent to the commencement of the action. The objection is not good. The acknowledgment is mere matter of proof. The deed is valid without it. It takes effect from the time of its delivery, and this, in the absence of any showing to the contrary, is presumed to have been on the day of its date. Riggs v. Henneberry, 58 Ill. 135. . Again, it is insisted that the tax deed was good upon its . face. The deed recites that the land was struck off to the county as a competitive bidder, and is similar to the deeds held void in the recent cases of Norton v. Friend, 13 Kas. 532; Magill v. Martin, 14 Kas. 67. Finally, it is insisted that this action could not be main tained because no tender of the amount of taxes, costs, etc., had been made to Babbitt as provided by § 11 of the tax law of 1862, (Comp. Laws, p. 880, and § 90 of the tax law of 1866.) These sections had been repealed prior to the commencement of this action, and in lieu thereof was enacted § 117 of the tax law of 1868, (Gen. Stat. p. 1057,) by which before the holder of the tax-deed is ousted of possession the successful claimant is required to pay the taxes, etc. This order was made, and it is all the plaintiff in error was entitled to. Sapp v. Morrill, 8 Kas. 685, 686. The judgment will be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: Defendant was convicted in the district court of Atchison county of the crime of murder in the second degree, and sentenced to the penitentiary for a term of ten years. From that conviction and sentence he has appealed to this court. The errors complained of may be grouped into four classes: first, objection to the sufficiency of the information; second, error in the instructions; third, the giving of an oral instruction; fourth, refusing to receive the verdict as prepared by the jury, and preparing a verdict for them to return. With three of these matters we have had little, but with the other, great difficulty in coming to a conclusion. I. It is objected that the information was insufficient. The information was a joint one against Isaac Potter, Walter Boyle, and the appellant. It charged murder in the second degree. It charged the fatal blow upon Isaac Potter, and that Boyle and the appellant were present, aiding and abetting. A severance was had, and the defendants tried separately. Isaac Potter was convicted of murder in the second degree, and appealed therefrom to this court, which reversed the conviction and remanded the case for a new trial. Subsequent to the conviction of Isaac Potter the appellant was tried. When Isaac Potter’s case was brought to this court, (13 Kas. 416, 422,) objection was made to the sufficiency of the information, but it was overruled. The specific objection now made was however not then presented, so that that decision may not be deemed con- elusive now. The claim now made by counsel is, that “ the accused is not charged in the information at all with having purposely murdered or killed Jacob B. Keeley, but only with having purposely aided and abetted Isaac Potter in the infliction of the wounds from which death ensued.” The information, which is perhaps unnecessarily lengthy, charges that the three defendants, in pursuit of a common purpose, “unlawfully, feloniously, willfully, wickedly, purposely, and maliciously,” made an assault upon the deceased; that each of the defendants, (naming him separately,) was armed with a certain weapon; that Isaac Potter did, with his weapon, “in a .cruel and unusual manner willfully, wickedly, purposely, and maliciously,” strike, beat, bruise and wound the deceased, and thereby gave to him four mortal wounds, (describing them,) of which wounds he died; that this appellant and Walter Boyle, with their weapons, at the same time and place, unlawfully, feloniously, willfully, wickedly, purposely, and maliciously encouraged, abetted, assisted, and protected in said acts, and then closes with the charge, “ and so the county attorney * *“ * does say and charge, that the said defendants, (naming each of them,) him the said Jacob B. Keeley, in the manner and by the means aforesaid, unlawfully, feloniously, willfully, wickedly, purposely, and maliciously, and with malice aforethought, did kill and murder, contrary,” etc. It seems to us, since the decision in the case of Smith v. The State, 1 Kas. 365, that there can be little question as to the sufficiency of this information. It charges an assault by all, in pursuit of a common purpose; the killing by Isaac Potter, the presenc e of the others, aiding and abetting; and finally, the intent.upon all. In the Smith case just cited, there was, as here, an omission to charge the intent to .take life elsewhere than in the closing clause of the indictment. But the court, disregarding authorities under the old practice, held the indictment good under our code. It seems to us that that decision, was correct, and it disposes of this question. II. The next objection we shall consider is that to the in structions. The court gave to the jury a general charge, and then at the instance of the respective parties, several instructions. The first point made is, that it failed and neglected to state to the jury all matters of law which were necessary for their information in giving their verdict. (Crim. Code, § 236.) And upon this counsel say: “The offense of murder- in the second degree was not in any manner explained to the jury, and they had no information from the instructions of the court from which they could form an intelligent idea of what constituted murder in the second degree.” On examining the charge, we find that the court told the jury that if they found “that the defendant did, in the manner and form, and at the time and place charged in the information, kill the said deceased,” then it was their duty to convict of murder in the second degree. And in the first instruction, he charged them that if they found that the defendant, “in connection with Isaac Potter and Walter Boyle, all acting with a common purpose, design, and intent to take the life of the deceased, purposely and maliciously killed the said deceased, without justification therefor, as charged in the information,” then they should convict of murder in the second degree. And other instructions, given at the instance of both plaintiff and defendant, enlarged a little upon certain elements of the crime. It does not appear that any instruction asked by the defendant was refused, except one in relation to the presumption of innocence, and one in relation to reasonable doubt, which was refused as tendered, but given with a modification. Now it may be laid down as a general rule, that if the court gives in general terms, the elements of the crime, and is not asked by defendant to enlarge upon and explain further any particular element thereof, no error has been committed in failing to give fuller and more specific instructions which will justify an appellate court in a reversal. Especially is this true, when, as in this case, the testimony is not preserved, and nothing from which it can be inferred that any particular element called for especial notice and explanation. Doubt less it often happens that in view of the testimony certain matters require especial notice, and rules of law applicable thereto should be given with great fullness and detail, and a failure to do so would be sufficient to justify a reversal. But there is no presumption that this is so, and the fact, if it exists, should be made to appear in the record. Again, it is objected that the court failed to give fully and correctly the law in reference to the several degrees of manslaughter, and other inferior crimes. Craft v. The State, 3 Kas. 485. In reference to these crimes it gave, or attempted to give, simply the statutory definition of them. It made some verbal changes from the language of the statute, but none working any substantial change in the meaning. Thus, in the section defining manslaughter in the first degree, is this phrase: “in cases when such killing would be murder at the common law.” Instead of this, the court used this expression: “and which killing would be murder at common law.” Then again, it omitted, in explanation of this section, any definition of “murder at the common law.” Hence counsel contend that the jury were not fully informed as to what constituted manslaughter in the first degree. Substantially the same criticism is passed upon the instructions in reference to some of the other degrees of manslaughter. In reference to these objections, in addition to what was said concernjng the first objection to the instructions, the case of The State v. Dickson, 6 Kas. 205, may be referred to, in which this court held that, “When the instructions complained of relate to a degree of crime inferior to the principal offense charged in the information, and inferior to that of which the defendant is convicted, they will be deemed not to have prejudiced the defendantj whether erroneous or not.” This is decisive upon these points. An instruction asked in reference to reasonable do.ubt, was modified by adding a fair proper definition of reasonable doubt, and, as modified, given. There was clearly no error in this. Some other objections are raised to the instructions, but none which we deem well founded. III. It is insisted that the court erred in refusing to receive the verdict returned by the jury, and handing to them the form of a verdict. The verdict as returned was one finding the defendant guilty of murder in the second an(j y. ¿hese words — “and recommend his punishment to be the least amount allowed by law.” The court declined to receive the verdict in that form, and handed them one without those words, which was duly signed, and returned. It may be stated that on the form handed to them a blank space was left before the word “guilty,” for the insertion of the word “not,” and the jury instructed to insert the word “not” if they found the defend- and not guilty. But this was unnecessary. The jury had signified the conclusions to which they had arrived when they returned the first verdict, and all that the court did was to see that the verdict was placed in the proper form. We do not think there would have been any impropriety in receiving the first verdict; but technically, and strictly, the jury have nothing to do with the question of punishment, but only with that of guilt; and they go outside the strict boundary of their duties when they attempt to influence the term of the punishment. The court keeps within the letter of the law when it confines the jury to their separate duties, and commits no error in so doing. Indeed, it may be laid down, that it is the duty of the court to see that' the verdict is in due form. And if all that it does, is to change the form, it is simply discharging an unquestioned duty. IV. This brings us to the last, and by far the most difficult question in the case. The following are the facts in reference to it: After the jury had retired to consider of their verdict, they returned into court, and through their foreman, Dr. Stringfellow, asked of the court the following question: “I ask whether a party could be an accessary, aider, or abettor of another who committed the crime of manslaughter in the second degree?” The court thereupon, over the objection of the defendant, gave the jury the following instructions, to-wit: “A person who aids or assists another in the commission of any crime is equally guilty with the person who actually commits the crime, and may be charged, tri d, and convicted the same as the principal, and may be regarded by the jury in every respect as if he were the principal.” In addition to this written instruction, the court stated orally to the jury as follows: “I mean by that, that makes him principal and not accessary. There is no such thing, in my judgment, as accessary to this case. Those acts make him principal, and should be regarded by you as principal, and not accessary. He is either .principal, or nothing.” The statute says, “The judge must charge the jury in writing, and the charge shall be filed among the papers of the cause. Gen. Stat. p. 858, Crim. Code, § 236. It is error to omit to do so. The State v. Huber, 8 Has. 447. Á glance at some of the decisions in reference to this mat^er jn 0tber courts may not be uninstructive. In Indiana the statute provides that, “when the argument of the cause is concluded, the court shall give general instructions to the jury, which shall be in writing, and be numbered, and signed by the judge if required by either party.” Q. R. S. (G. & H.) p. 198, § 324. Upon this, in Townsend v. Chapin, 8 Blackf. 328, it was held ’ error to give written instructions with verbal explanations and illustrations. The same doctrine was affirmed in Kenworthy v. Williams, 5 Ind. 375, and in Laselle v. Wells, 17 Ind. 33. In Meredith v. Crawford, 34 Ind. 399, the court declared that “oral explanations, comments, or modifications,” were erroneous. In R. S. & V. T. Co. v. Conway, 7 Ind. 187, and in Feriter v. The State, 33 Ind. 283, the decision was, that the whole charge must be in writing. In the case of the Toledo & W. Rld. Co. v. Daniels, 21 Ind. 256, the trial judge gave this oral introduction to his written instructions: “This is an action brought against defendant to recover the value of the property alleged by the plaintiff to have been .killed on said road. It has been intimated by the defendant’s counsel that you may disregard the instructions of the court as to the law governing the case, but we say to you that you cannot do that. The court may err, but it is not the province of the jury to determine whether the law as delivered to them by the court be correct 'or incorrect. If wrong, the party feeling aggrieved by it has his remedy by appeal to the supreme court.” The giving of this oral statement was adjudged error. In Pate v. Wright, 30 Ind. 476, it appeared that the trial judge repeated orally a part of one of the instructions, and in reading another remarked that he had not intended to read so far, and then reread the instruction as intended. This was held no error. • In Colorado, it is provided that “ the instructions shall be reduced to writing, and may be taken by the jury in their retirement, and returned by them with their verdict.” Laws of 1861, p. 282, § 28. In Dorsett v. Chew, 1 Col. 18, and Giles v. The People, 1 Col. 61, where it appeared from the bills of exception that the court gave oral instructions, and oral explanations of written instructions, both were adjudged error. In California, the statute reads: “In no case shall any charge or instruction be given to the jury otherwise than in writing, unless by the mutual consent of the parties.” In People v. Demit, 8 Cal. 423, and People v. Ah Fooy, 12 Cal. 345, the' judgments were reversed because of the giving of oral instructions. In People v. Payne, 8 Cal. 341, an oral modification of a written instruction was held erroneous; and in People v. Wappner, 14 Cal. 437, it was decided that an oral instruction was erroneous, whether given in the first instance, or after the jury had once retired to consider of their verdict and returned with a request for further information. In People v. Bonney, 19 Cal. 426, in which was an indictment for murder, the jury returned a verdict of “guilty as charged.” The court told the jury verbally that the verdict was not in form, but should specify the degree of murder of which they found the defendant guilty, and directed them to retire and designate the degree. Held, no violation of the statute, and no error. In Ray v. Wooters, 19 Ill. 82, under a statute which declared that the court “shall in no case orally explain or qualify” the written instruction, an oral explanation was held ground for reversal. In O’Hara v. King, 52 Ill. 303, where the statute forbade instructions “unless such instructions are reduced to writing,” (Scales’. Comp. 261,) it appeared that during the argument of counsel the court interrupted, and stated orally, in the presence and hearing of the jury, its opinion as to the law of the case; but this was decided to be outside of the statute, and not erroneous. In Florida, the statute requires that the charge shall be wholly in writing; that upon refusing an instruction, the court shall write out his own rulings of the law. upon the point raised, all of which shall be in writing, and written before the same are delivered, and that all instructions given and refused shall be' signed and sealed by the court, and form a part of the record in the cause. In Dixon v. The State, 13 Florida, 637, it appeared that *after the court had finished its charge, one of the jurors asked whether they must believe all the testimony, or could disbelieve any part of it. The court answered orally, that they could reject, etc.; but this was adjudged within the prohibitions of the statute, and an error sufficient for reversal. „ In Clarke v. The State, 31 Texas, 574, it was declared that oral instructions, given without the consent of the defendant, were forbidden by the statute^ and sufficient for reversal. In Missouri, it was provided by the act of February, 1839, “That in no criminal case shall the court give to the jury any charge or instruction, on any question of law or fact, except the same be in writing, and filed in the cause;” and that if any court should violate that statute, “the party may except, and for such violation the cause or judgment shall be reversed at the instance of the aggrieved party.” Under this statute the case of Mallison v. The State, 6 Mo. 399, was decided. There it appeared that a juror asked if, under the indictment, which was for murder, they could convict of manslaughter, and the court replied orally, that it had not decided that point; that the court did not know that the supreme court had decided the point; that they (the jury) were judges of the law and the fact; that they might find the verdict as they pleased, and when rendered the court would decide on its validity. The judgment was reversed for error in making such oral reply. The statute in force at the time of the decision eJf The State v. Cooper, 45 Mo. 64, provided, “That the court shall not, on the trial of the issue of any indictment, sum up or comment upon the evidence, or charge the jury as to matter of fact, unless requested so to do by the prosecuting attorney, and the defendant, or his counsel. But the court may instruct the jury on any point of law arising in the case, which instruction shall be in writing.” In that case, the court, with the consent of the defendant, charged the jury orally upon the law. This was held erroneous, and the judgment was reversed. In Michigan, the statute reads, “The court shall in no case orally qualify, modify, or in any manner explain the written charge.” In O’Donnell v. Segar, 25 Mich. 367, it appeared that the court, in explanation of its written instructions, said orally, “ that the bringing of a suit for exempt property, or claiming it as exempt, was justified by law, and must be so regarded by the jury as well as by the courts.” Commenting upon this, the supreme court say, “that it was the expression of a mere legal truism, which could not and did not modify the effect of any of the charge given, and consequently cannot be treated as error.” But where it was stated in the bill of exceptions that the court “ otherwise orally explained,” without giving the language used, they decided that the statute applied, and reversed the judgment. In Swartout v. M. A. L. Rld. Co., 24 Mich. 407, it was held that the reading of a section of the statute as a part of the charge was no violation of the provision which required that the charge should be in writing and filed with the papers of the case. Tn Hasbrouck v. City of Milwaukee, 21 Wis. 217, the court prefaced the written instructions with some oral statements, among which were these: “During the long and fatiguing trial the court may have become impatient at the delay of counsel, and made remarks that may possibly have influenced some juror. I wish it specially understood that nothing I have said was intended to influence unduly the verdict of the jury, and I do not wish any juror to be influenced by it in the least. In submitting this case to you I will not comment at all upon the evidence, leaving you to weigh it all in your own judgment, and bring in your verdict accordingly.” This was held no part of the charge, and therefore not in violation of the statute which required that the charge be in writing. In Millard v. Lyons, 25 Wis. 516, a juror, after the charge, asked, “ whether the plaintiff had the right to use the defendant’s divided grain to feed the stock and sheep.” The judge answered that he would not have the right by law. This was held no part of the charge, the supreme court saying, that the question might have been answered with the simple word “no,” and that it would be nonsense to require the court to write that word and then read it to the jury. In Grant v. Insurance Co., 29 Wis. 125, the court orally stated to the jury that the defendant had offered no proof to sustain the issues he had tendered, and the plaintiff’s proof being conclusive, they must find a verdict for the plaintiff. This was held no violation of the statute. It will be noticed from this review that our statute is not so specific or minute in its restriction upon the action of the court as those of several other states. The language is general, and simply calls for a written charge, and requires it to be filed among the papers. We think the following propositions may fairly be deduced from the authorities, and are a just construction of the effect to be given to our statute: lst.-The statute requiring a written charge in criminal cases is imperative, and a failure to comply with it is an error compelling reversal. 2d.-Where the bill of exceptions simply states that a part of the charge or some of the instructions were given orally, without stating the language used, the statute will be held to apply, and the judgment be reversed. 3d.-It is immaterial whether the oral portion of the charge is given before the jury retire to consider of their verdict, or after they, having once retired, return to ask further instructions; and whether it is a separate instruction, or a mere explanation of a written instruction, it is error in either case. 4th. — The mere fact that an oral communication has passed from the court to the jury, is not of itself proof that the statute has been disregarded. But the court may properly make oral statements to the jury in reference to the form of the verdict, the manner in which the trial has been conducted, the behavior of the jury, or counsel, or parties, or any other oral statement which is not fairly and strictly a direction or instruction upon some question or rule of law involved in or applicable to the trial, or a comment upon the evidence. 5th.-Where a juror propounds a question to the court, it may make a u , . . , J direct answer without reducing the same to writing, provided in so doing it does, not make an independent statement of a rule of law. In other words, where the question of the juror is the full statement of the rule, and the answer is no more than an affirmation or denial, such affirmation or denial need not be reduced to writing before it is given. It may be remarked in reference to these propositions, and especially the last, that the purpose of this statute is to secure to the defendant the exact rulings of the court, in order that he may avail himself of any error in those rulings; that it was not intended to cast any unnecessary burdens upon the court, or to hamper and restrict communications between the court and jury; that it should be so construed as fairly to secure that purpose, and not made a mere weapon of technical error; that in reference to answers to questions, as there is nothing to require the questions to be reduced to writing before they are put, it would seem trifling to compel the answer tó be so reduced, when the answer is simply responsive, and depends for its meaning upon the unwritten question. It seems to us that, tested by this last rule, the oral statement in this case must be held not a violation of' the statute, and no ground for reversal. Many words are used, but after all it amounts to no more than a negative reply to the question asked, if a party could be an accessary. The court replies,- that “there is no such thing as accessary; the party is principal or nothing.” So far as the law is concerned, it was, under the provisions of our statute applicable to this case, correctly given in the written statement made in reply to the question. In the record, as it was presented to us at the time of the argument and submission, it did not appear that any exception was taken to the giving of this oral reply to the question of the foreman. Subsequently the appellant filed a motion to have the record corrected by the insertion of an exception, and, filed in support thereof an affidavit of one of his counsel who was present during the trial, stating that exceptions were duly taken, and giving an explanation of the omission of a statement to that effect from the record brought here, which is a copy of the original bill signed and filed in the district court, and also a copy of a certificate of the district judge jnade and filed in the district court since the submission here. It would seem from this testimony that, in the bill as prepared by counsel, was a statement that exceptions were taken, and that this statement was subsequently erased; but whether before or after it was signed, does not seem clear. If the erasure was subsequent to the signing, it is a mere clerical mistake, which can be corrected; but if it was erased before, and the bill was signed without any such statement, it makes this an application to amend the bill, and presents a question of more difficulty. Counsel appreciating the difficulty have filed a supplemental brief, contending that if no exceptions were taken, the defendant was still entitled to thé benefit of any error in this action of the district court, and this too, we find a question of no easy solution. We do not decide either of these questions, our conclusions being adverse to the appellant upon the action of the court, supposing it duly excepted to. The judgment will be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: On June 29th 1870, Jacob Weisbach was the owner of a certain piece of land in Marshall county. On that day he sold it to Daniel W. Hamaker, for $3,000, receiving one-half in cash down, and the other half in two promissory notes, each for $750, and payable, one in one year, and the other in two yeai-s. Weisbach gave a bond for title to Hamaker. On January 16th 1871, Hamaker died, leaving a widow and four children as heirs to said land. On April 3d 1871, W. H. H. Freeman was duly appointed administrator of Hamaker’s estate. . During the months of August and September 1871, the St. Jos. & Denver City Rid. Company located their road through said land, and commissioners duly appointed for the purpose assessed the damage at $219.80, which amount was duly paid to Charles F. Koester, county treasurer of Marshall county, for the owner of the land. Weisbach assigned said notes to the plaintiff, Julius Kuhn, and also, on June 25'th 1873, executed deeds for the land to the widow and children of said Ha-maker, according to their respective rights under the laws of descents, and placed them in the hands of Kuhn, to be by him delivered to the proper parties when the notes should be paid. The deeds were duly tendered, and payment of the notes demanded and refused; and then, on September 4th 1873, said Kuhn commenced this action against said administrator, widow, children, and Koester, to recover a judgment against the administrator for the amount of said notes, and against all'the parties to subject the land and the money in Koester’s hands to the payment of said judgment. The plaintiff’s petition stated all the foregoing, and other facts. The defendants demurred to the plaintiff’s petition on the following grounds: “ lst.-That said petition does' not state facts sufficient to constitute a cause of action against these defendants. 2d.-That said plaintiff has not legal capacity to sue herein. 3d.-That there is a defect of parties plaintiff. 4th.-That there is a defect of parties defendant. 5th.-That there are several causes of action improperly joined.” The court below “sustained said demurrer on the ground that said petition does not state facts sufficient to constitute a cause of action,” and dismissed the plaintiff’s action, over his objections and exceptions. We think the court below erred. If the plaintiff had any cause of action of any kind, against any one or more of the defendants, even a cause of action on the notes for the amount due thereon, or for any portion thereof, then the court below erred in sustaining the demurrer. And we think the plaintiff had a cause of action. That an action could have been maintained by the plaintiff, on the notes, and to subject the land to the payment of the notes, against Hamaker, if he had lived, and if the railroad company had not obtained said, right of way, there can now be no question. (Courtney v. Woodworth, 9 Kas. 443; Stevens v. Chadwick, 10 Kas. 406; Curtis v. Buckley, 14 Kas. 449.) And we can see no sufficient reason why the plaintiff may not maintain the action against the successors of Hamaker, his administrator and heirs, notwithstanding said right of way. It is certainly true, that his administrator, widow, and children have succeeded 'to all his rights and liabilities, real and personal, which may pass to an administrator and heirs; and it is equally true, that the rights and liabilities involved in this case are such as may pass to an administrator and heirs. It is probable that the demurrer was sustained solely because of the condemnation of a strip of the land for said right of way, and because Weisbach for that reason could not convey to said widow and children a perfect and absolute title for said strip of land. There is no other reason that we can think of, and the defendants in error have not chosen to enlighten us upon the subject, by filing a brief or otherwise. This reason we think is not sufficient. None of the usual or ordinary covenants in a deed can be broken by a portion of the land covered by the covenant being taken under the right of eminent domain. The exercise of the right of eminent domain, is the exercise of a sovereign power; and no person is. presumed to covenant against the acts of sovereignty. Hence, where the deed has already been executed, and afterward the vendor sues the vendee for the purchase-money, it is universally held that the vendee cannot set up as a'defense to the action, that a portion of the land has, since the execution of the deed, been taken under the right of eminent domain, and therefore that some of the covenants in the deed have been broken. Nor can the vendee sue the vendor in such a case in a separate action, on the supposed broken covenant. He must pay the vendor the full amount of the purchase-money, and receive the condemnation money paid as damages for his compensation. This is the only remedy he has. The case at bar however is to some extent different from the above. The deed in this case was not executed at the time when the sale was made; and before the deed was executed the easement of the right of way had attached to the land, so that the vendor cannot now make as absolute and perfect conveyance as he agreed to do. But still this difference in the facts, we do not think, should make a difference in the decision of the question involved. It cannot be presumed when the vendor agreed to make a good and perfect conveyance, that the parties contemplated that he was agreeing to do a thing notwithstanding what might be the future acts of the sovereign authority. When Weisbach agreed that he would make a good title, he had absolute and complete title to the land. By the agreement and sale, the land became in equity the property of Hamaker. The legal title was allowed to remain in Weisbach merely as a security for the payment of the notes, and may be considered merely in the light of an equitable mortgage. When Hamaker died, the land descended to his widow and children. When the right of way was established it was in fact obtaining an easement on the land of the widow and children of said Hamaker, and not upon the land of Weisbach, and they were entitled to receive the money paid by the railroad company as damages. And Hamaker’s estate remained liable to the holder of the notes, just as it was .before, for the balance of the purchase-money not yet paid on the notes. But suppose this were not true: what would be the remedy of Weisbach? Or rather, what would be the remedy of Kuhn, the assignee of Weisbach? Even Weisbach, if he still owned the notes, could not rescind the contract, and get the land back, after one-half of the purchase-money had been paid to him by the vendee, and possibly after valuable improvements had been put upon the land. And he certainly could not maintain an action of ejectment for the land. But as Weisbach has transferred his interest in the notes, he cannot maintain an action of any kind. For the same reason that Weisbach could not rescind the contract, nor maintain ejectment, Kuhn cannot do so. And there is this additional reason why Kuhn cannot do so — he never owned the land. But suppose that Kuhn and Weisbach should agree that they would never convey the legal title to said land to said widow and. children: how would even that benefit them, while the widow and children continue to hold the equitable title, and the possession of the premises, and have all the benefit and enjoyment of the same? The notes amount to $1,500, exclusive of interest. The damage done to said land was only $219.80, and the widow and children are entitled to draw that amount. Now must Kuhn lose his $1,500, because $219.80 worth of land was converted into money? And it was no fault of Kuhn, or Weisbach, that said strip of land was taken for a roadway. Neither of them had any power to prevent it. It was taken under the sovereign authority of the state, and therefore it must not be held that any one was blamable or censurable. But all parties must perform their contract just as far as they can, and where they cannot they are excusable. Weisbach has performed his part of the contract just as near as he can. The title he offers to convey is perfect, and absolute, except for said right of way. We think the plaintiff may recover. The judgment of the court below will be reversed, and cause remanded with the instructions to the court below to overrule both of the demurrers filed .in this case, and for such other and further proceedings as may be proper. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: This is an application for a mandamus to compel the defendant, the clerk of th'e district court of Chase county, to issue certain process. It is addressed in the first instance to this court, and no reason is given why the application was not made to the district court. The defendant is an officer of the district court. The duty which he is charged with neglecting, is one devolving upon him as such officer. It seems to tis there are many reasons why an application to compel him to discharge any of those duties should be addressed in the first instance to that court. There can be no question of the power of that court. It is especially charged with the duty of regulating the proceedings of its own officers. It will tend to promote harmony in those proceedings to have them all controlled by one tribunal. It will prevent conflicting orders. That court is . better acquainted with its officers, can more fully appreciate the reasons for their action, and more justly measure the punishment to be awarded in case of disobedience. There are still other considerations of a different nature, which are generally true. The costs of proceedings in this court are greater than those in the district court. The party is compelled to carry on a litigation away from home, and therefore at greater expense. Testimony will be more by deposition, and therefore less satisfactory. We do not doubt the power of this court, and there may be cases where it would be proper for the application to be first made here; and when such cases arise we shall not hesitate to act. But in this case we see nothing to induce a deviation from that course which seems to us ordinarily appropriate and just. The writ of mandamus lies largely within the discretion of the court, and the existence of absolute legal rights in the party, and jurisdiction in the court, does not always compel the issue of the writ. The State, ex rel. Wells, v. Marston, 6 Kas. 525; A. T. & S. F. Rld. Co. v. Comm’rs of Jefferson Co., 12 Kas. 127. The writ will be refused. But this disposition of the case is not to be taken as an adjudication of the merits of the controversy, or to prevent an appeal to the district court for such adjudication, or to this court a second time, with a showing of sufficient reasons, if any exist, why appeal is not made in the first instance to the district court. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: This was an action to reform a sheriff’s deed, so as to make it read “ section 8,” instead of “ section 28,” where the latter occurs. Without stopping to consider whether this may be done in any case, we shall immediately pass to the question whether it can be done under the circumstances-of this particular case. On the trial of the case in the district court the plaintiff below, Samuel Poynter, introduced in evidence the sheriff’s deed, the judgment upon the deed was founded, including proceedings had previous to the rendering of the judgment; the confirmation of the sheriff’s sale; the testimony of the clerk of the district court, that many of the files of his office had been burned, and that the files in this particular case had not been seen since the fire; and the testimony of the plaintiff showing that he had resided on the land in said section 8 ever since the sheriff’s sale, and that no one had claimed any adverse title thereto until recently. The defendants below (who are now plaintiffs in error) introduced in evidence the newspaper in which the notice of the sheriff’s sale was published, and also the testimony of the publisher of that paper, showing that this was the only notice of such sale published in his paper. No other evidence was introduced for either party. It will be noticed that not one of the following papers was introduced in evidence, to-wit: the execution, or order of sale, upon which the land was sold; the return by the appraisers' of the appraisment of the land; the copy of the notice of the sale of the land published in the newspaper, and filed in the court; the written return of the sheriff, showing his proceedings under the execution. But in lieu thereof we have the sheriff’s deed, (which is certainly good evidence, in the absence of better evidence, to show the substance of said papers, and of other papers recited therein,) reciting the substance of the execution, the oath administered to the appraisers, the return by the appraisers of the appraisement, the notice of the sale published in the newspaper, the sale itself, and the return of the sheriff of his proceedings under the execution; and these papers, and proceedings as recited in the deed, show unequivocally that the sheriff was ordered by the execution to sell “the north-half of the northwest quarter of section 28,” etc., that he did appraise, advertise, and sell such land, and not one of these papers or proceedings tends to show that the sheriff ever had anything to do with any land in section 8. Besides, the evidence introduced by the defendants shows beyond all doubt that the sheriff advertised the land in section 28 for sale, and did not advertise the land in section 8 for sale. The sheriff’s deed shows that the notice of sale was published in the “White Cloud Kansas Chief,” and the publisher of that paper produced on the witness stand a copy of said paper, with a copy of said notice published therein, and testified that no other notice of said sale was ever published in said paper; and that notice shows that the sheriff advertised land in section 28, and not in section 8 for sale. This was certainly competent evidence, for it had already been shown that the original files in the case had been destroyed by fire. Probably no better evidence could have been found, or was then in existence. It corroborated the recitals in the sheriff’s deed, and did not contradict them. But it is claimed that it tends to contradict the confirmation of the sheriff’s sale, and is therefore incompetent. The confirmation of the sheriff’s sale reads as follows: “On motion of said plaintiff, by Messrs. T. <fe. C. his attorneys, and on producing the return of the sheriff of this county of a sale of real estate made by him on the ninth day of March 1863, on an order of sale issued in this case, and dated the eighth day of January 1863, and the court on an examination of said proceedings being satisfied that said sale has been made in all respects in conformity to law; it is ordered by the court, that said sale and proceeding be and the same is hereby confirmed, and the said sheriff is ordered to make to the purchaser a deed for the land and tenements so sold.” Now, a confirmation of a sheriff’s sale is ordinarily, as in this case, a purely ex parte proceeding, and it may always be so. The sale may be confirmed on the motion of the plaintiff, the defendant, the sheriff, or any other person interested therein, or on the court’s own motion, and may be done without notice to any person, and in the absence of every person except the officers of the court. And no particular time is required for the confirmation of the sale. It may be done at any time after the sale has been made, when the court is in session, and for an indefinite period of time. And it is usually done merely upon an examination of the return of the officer, (White Crow v. White Wing, 3 Kas. 276,) although it would probably be prudent in some cases for the court to look behind the return of the officer, and see whether the writ itself, the execution or order of sale, followed the judgment. The whole difficulty in the present case has probably arisen from the fact that the order of sale does not follow the judgment. It does not seem however to be the special duty of the court on the confirmation of a sale, to determine whether the clerk has done his duty in issuing the writ, but only whether the sheriff has done his duty in executing the writ. In the present case we think .the sheriff undoubtedly followed the writ scrupulously, and did his exact duty under the writ. He undoubtedly advertised and sold land in section 28, and not' in section 8, just as the writ directed him to do. The confirmation of the sale in this case does not pretend to show otherwise, but really tends to show that the sheriff did his duty; that is, that he sold the land which he was ordered to sell by the writ, which was land in section 28, and not land in section 8. We suppose that when counsel for plaintiff below (defendant in error) comes to consider the nature and character of an ex parte confirmation of a sheriff’s sale made long after judgment, he will no longer consider that such a confirmation is an adjudication, conclusively binding upon all parties that may possi bly be affected by it, and conclusively proving that the land ordered to be sold by the judgment was sold, and that it was regularly and legally sold; for such is not the case. (Benz v. Hines, 3 Kas. 390, 397, et seq.) The sheriff’s deed in the present case cannot be reformed; for the sheriff had no legal power upon the sale made by him, and recited in the deed, to execute this or any other deed. Under the judgment, no land could be sold except land in section 8. Under the order of sale issued by the clerk, no.land could be sold except land in section 28. Hence, as the order of sale in an essential particular did not follow the judgment, the whole of the proceedings had and done after the judgment was rendered, are mere nullities. Therefore, under such circumstances, no court can give the sheriff power to make a good and valid deed, and no court can reform a defective deed already executed by the sheriff so as to make it good and valid. The judgment of the court below is reversed, and cause remanded for further proceedings. All the Justices concurring.
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The opinion of the court was delivered by • Brewer, J.: At the March 1874 term of the district court of Bourbon county, the city of Fort Scott, defendant in error, obtained a judgment against the plaintiff in error for the sum of $100,000, for an alleged breach of contract. „ To reverse that judgment the Railway Company brings this proceeding in error. At the outset we are met with an unpleasant controversy of a personal character. It is insisted by counsel for the city, that no valid case made is here, and that we can only consider such questions as arise upon the pleadings and judgment. On the other hand, the counsel for the company moves to strike out certain portions of the certificate of the trial judge to the case made, on the ground that they are surplusage, and that they are “intentionally false, and were fraudulently incorporated,” and charges a conspiracy between the counsel for the city and the trial judge to prevent the Railway Company from obtaining a case for review. The case was tried before a judge pro tem., who on the day of the rendition of the judgment, the 2d of April, gave thirty days in which to make and serve a case. The case was not signed by such judge until the 4th of May. It is insisted that upon the expiration of the term the powers of the judge pro tem. ceased, and that he could not thereafter do any act in the suit, not even to the extent of settling and authenticating a case made. The case' was signed by the regular district judge on the 1st of May, and it is claimed that a judge has no power to settle and sign a case made except in proceedings and actions regularly had and tried before him. In other words, the claim is, that upon the expiration of the term at which a case is tried, if tried before a judge pro tem., the power to obtain a case made ceases. It.may be remarked, that it does not distinctly appear that the term had expired at the time this case was signed by the judge pro tem. Nothing in the law prevented the continuance of the March term beyond the 4th of May. There is no positive affirmation in the record' that the term had been adjourned. The counsel for the city objected, it is true, to any action of the judge, on the ground that the term had been adjourned; but the judge overruled the objection, and it may be that he so ruled because the fact was not as asserted, instead of because he deemed the law not to be as claimed. We do not however rest any decision upon this ground, for while there is no. positive assertion that the court was adjourned, it seems probable, from the ruling of the judge upon the objection of the city’s counsel, as well as from the opening words of his certificate, that such was the fact. The certificate of the trial judge, although a judge pro tem., and made after the adjournment of the term at which the case is tried, is, if there be no other objection to it, sufficient. That the judge before whom a case is tried, is the proper officer to settle the record of the proceeding upon such trial, is manifest. And the power of a judge to settle and sign a case, although his term of office has expired, and although there be no statutory authority therefor,'has been affirmed by courts of the highest authority. Fellows v. Tait, 14 Wis. 156; Davies v. The President of the Village of Menasha, 20 Wis. 194; Hale v. Haselton, 21 Wis. 320. We have a statute bearing upon this question. In § 1, chapter 85 of the laws of 1870, it is provided, that the case made “when so made and presented shall be settled, certified and signed by the judge who tried the cause;” and also, that “in all causes heretofore or hereafter tried, when the term of office of the trial judge shall have expired, or may hereafter expire, before the time fixed for making or settling and signing a case, it shall be his duty to certify, sign or settle the case, in all respects as if his term had not expired.” A statute like this is not to be construed in any restricted, technical manner, but liberally, in the ends of justice, that defeated litigants may have a full opportunity for the reexamination in the supreme court of the questions decided against them below. In Thurber v. Ryan, 12 Kas. 453, we held this statute applicable to a case where, before the time for settling and signing a case made, a law took effect detach-ing the county from one and transferring it to another judicial district, thus giving to the county a new district judge. It may be that it is, strictly speaking, hardly correct to speak of the “term of office” of a pro tem. judge. Perhaps he may not technically have a “term of office;” and yet such an expression does no great violence to language. It clearly comes within the spirit and purpose of this statute, that whenever the judge before whom a case is tried shall, before the expiration of the time allowed for settling and signing the case made, have ceased to be judge, he shall nevertheless settle and sign the case made. His judicial life has ended, yet he may and must prepare-for the review of the appellate court the record of the proceedings before him. We think therefore, the certificate of the trial judge must be held good, notwithstanding this objection. Again, it is insisted that the case made must be disregarded because it was not settled and signed until after the expiration of the time allowed therefor. This claim we think arises from a misapprehension of the statute, a misapprehension evidently shared by counsel on both sides. On the 2d of April an order was made that the railroad company “have thirty days in which to make and serve a case.” On the 4th of May the case was settled and signed. This it is true was more than thirty days after time of the order of extension; But that order did not fix the time for settling and signing the case, or direct notice to be given of the time for presenting the case for settlement. It simply extended the time for making and-serving the case. The making and serving of a case are the acts of the plaintiff in error; the suggestion of amendments, the act of the defendant in error;' and the settling and signing of the case, the duty of the judge. Sec. 547 of the civil code (Gen. Stat. 737,) authorizes a party to make a case. Sec. 548 provides that he shall, within three days after the judgment or order is entered, serve such case made upon the opposite party, or his attorney, who may within three days thereafter suggest amendments, and present the same to the party making the case. “The case and amendments shall be submitted to the judge, who shall settle and sign the same; and the case so made shall thereupon be filed with the other papers in the action.” Section 549, as amended in 1870, (Laws of 1870, page 168,) gives the court power to extend the time for making and serving a case, and also to direct notice to be given of the time when the case may be presented for settlement, after it has been made and served, 7 7 aud amendments suggested. Now the extension 0f ^ ^me for maicjng an(j serving a case, does not take away the time for suggesting amendments. The three days thereafter, in which to suggest amendments, still remain. And where there is no order fixing the time for presenting the case for settlement, and only the simple order giving an extension of time for making and serving a case, the case is duly settled and signed, if settled and signed within three days after the time fixed for making and serving a case. It is true, the statute may be read so as to mean that the three days in which to suggest amendments shall be three days after the actual service of the case, and not after the time given in which to serve. Thus, in this case, the case was served on the 21st of April, several days before the expiration of the time granted. Upon such a construction, amendments would have been required by the 24th. But the other construction, that making the three days to commence upon the expiration of the time given for making and serving the case, while equally warranted by the language, is more in harmony with the definitions and regularity of judicial proceedings, and therefore to be preferred. A party whose adversary has taken time to make a case, knows exactly when he must be ready with his amendments, and can arrange his business accordingly, while otherwise he must be ■ in suspense waiting the action of his adversary and ready to proceed immediately after such action. We conclude then, that as the case was settled and signed within the three days after the expiration of the time given for making and serving it, it was settled and signed in time. The certificate having been signed by the proper officer, by one having authority to sign, and within the legal time, we come to motion of plaintiff in error to strike Quj. a parf; 0f certificate. We give the certificate in full. It is as follows: “I, John M. Galloway, being a practicing lawyer in the city of Fort Scott, Kansas, and having held the March Term 1874 of said district court, within and for the county aforesaid, as judge pro tem., duly elected and qualified, because of the sickness and absence of the Hon. M. V.Voss, the regular judge of said district, and as the said judge pro tem. having heard and tried the above entitled cause at said March Term 1874, do hereby certify that the above and foregoing case made by defendant was presented to me by Wm. C. Webb, attorney for the defendant, the M. K. & T. Railway Company, on this 4th day of May 1874, for settling, signing and allowing the same as of record. And at the same time and place appeared H. C. McComas, John E. McKeighan, and William C. Stewart, attorneys for the plaintiff, the city of Fort Scott. And the said attorneys for plaintiff objected to the said case presented being examined, settled, signed or allowed by me, because the time for making, presenting, settling and allowing said case had expired; and because a pro tem. judge, after the adjournment of the term of court which he 'held, has no further power to act as judge, and because the order herein made, by which the time was fixed for making, presenting and allowing said case was a consent order, and could not be altered or extended by the court — > which objection was by me overruled and denied, and to which ruling the plaintiff, by its attorneys, duly excepted. And I do hereby refuse to extend the time for making and presenting this case, and. do find, as a matter of fact, at the request of the plaintiff, that the time for making, presenting, settling, and allowing said case has expired, and that no case made was presented to me within the time allowed the defendant by the order in said case made. “I further certify, that the foregoing case made, together with the amendments suggested by the plaintiff, and submitted to me in writing on the 22d of April 1874, is correct, except that it does not contain all the evidence, and does not contain the charge of the court. It is therefore, ordered and directed that the case as above madé and presented, with amendments thereto, be filed with the clerk of said district court aforesaid, and made a part of the record.” The motion is to strike out that portion commencing with the words, “And at the same time and place,” and ending with the words, “and does not contain the charge of the court,” and also from the last clause the words, “with amendments thereto.” Upon this motion a large amount of testimony has been taken in depositions before a commissioner heretofore appointed by this court. We forbear comT menting upon this testimony, for it is conflicting, as well as voluminous, and anything like a fair statement of it would •require more space than we can afford to give. And besides, conceding that the charge were proven, as fully and as broadly as it is made, that the facts were exactly as claimed by the plaintiff in error, that the statements objected to were intentionally false, and fraudulently incorporated, and that there was. a conspiracy between the counsel for the city and the judge pro term, to prevent the company from obtaining a case made, still we should be constrained to hold that the motion must be overruled. It involves the reformation of the certificate, and in substance asks this court to make a new certificate. The correction here sought is the striking out of a portion; but the principle would be the same if the application were to add something. In either case the effect is to set aside the certificate as made, and substitute a new one. It becomes really the certificate of this court, instead of the trial judge’s. It may well be, that if a certificate js shown to be intentionally false, and fraudulently prepared, this court should disregard it; but it should be wholly disregarded. The verdict of a jury may be shown to be willfully false to the evidence, and fraudulently prepared ; but the court has no power to reform it, by eliminating the false, and adding the true. It must be rejected altogether. The statute we have quoted heretofore provides that the case should be settled and signed by the trial judge. If he has acted corruptly and fraudulently, the whole act of settling and signing, the entire certificate, is worthless. If the corruption is in favor of the plaintiff in error, and to secure a reversal, ordinarily the rights of the defendant.in error will be protected in a new trial. If in favor of the defendant in error, and to prevent a reversal, cases may arise in which it will be the duty of the reviewing court to set aside the judgment, and order a new trial, presuming, on account of such corruption in the preparation of the case, that the plaintiff in error was wronged in the trial, especially when this corruption involves a conspiracy between the judge and the defendant in error. But even in such a case, we should not attempt to make, by addition or subtraction, a correct certificate, but should reject it altogether. For the correction of a certificate involves a determination of what actually took place, of what is true, and what is false. This court, before it could make a correction, must determine not merely that the trial judge acted 'corruptly, but that his certificate was false in fact. For if the certificate be in fact true, the plaintiff in error has suffered no wrong. And no matter how corrupt and bad the judge may have been, the party has no right to have anything but the truth in the case, or certificate. K. P. Rly. Co. v. Simpson, 11 Kas. 494. And upon a motion like this, to inquire into what actually took place in the trial of a case in the district court, a trial which may have been tedious and protracted, and to settle upon affidavits and depositions a bill of exceptions, or case made, is a proceeding not warranted by authority, nor likely to accomplish successfully the intended result. Suppose the judge had refused to sign the certificate prepared, claiming it to be untrue: would this court, by mandamus, compel him to sign it, or hear evidence to show that it was true, or that the judge corruptly refused to sign it? Shepard v. Peyton, 12 Kas. 616. Take the case before us: to strike out the portions of the certificate objected to, would leave the case made with a statement that it contained the entire testimony, certified to be correct. With the certificate as it stands, it appears that other testimony was also admitted. Now, conceding the corrupt and fraudulent conspiracy, it does not follow that this particular statement in the certificate is untrue. The case as prepared may not in fact contain the entire testimony, and it would be wrong to leave it with such a certificate. And how can we determine its truth or falsity, except by a tedious and unsatisfactory inquiry as to what testimony was actually offered and received on the trial? Surely, such a proceeding is unreasonable, and would tend to error and injustice. The motion therefore to strike out must be overruled. The only substantial difference between the record with the certificate as it stands, and with it as sought to be corrected, is, that in the one case it does not appear to contain the entire testimony, and in the other it does. For the record does not purport to contain the charge of the court; and one of the matters presented by plaintiff in error, on the hearing of its motion, is a claim that it could not obtain from the judge his charge. Upon the case as it stands before us, appear two principal questions, one involving the validity of the original contract between the parties, and the other the measure of damages for the breach of such contract. On the 25th of July 1870, an ordinance was passed by* the city council of the city of Fort Scott ordering an election on the 30th of August following, upon the question of subscribing to the stock of the corporation, plaintiff in error, and issuing the bonds of the city in payment therefor. The election was held, and resulted in favor of the subscription. The bonds were issued, and the subscription and bonds accepted by the company. For a breach of the terms of this subscription, was this action brought. The first, fourth, fifth, and eighth sections of this ordinance are the only material ones, and read as follows: Section 1. That a special election be and the same is hereby ordered to be held in the several wards of the city of Fort Scott, on Tuesday the 30th of August 1870, for the purpose of submitting to the qualified electors of said city, the question of subscribing, in the name of the city, and on the conditions hereinafter prescribed, for seventy-five thousand dollars of the capital stock of the Missouri, Kansas Texas Railway Company, and also the further question of authorizing the mayor and city council of said .city, to issue the b.onds of the city in a sum not exceeding twenty-five thousand dollars, for the purpose of procuring the right of way for the road of said company through the corporate limits of the city, and in addition thereto, to purchasing grounds, as hereinafter provided, not exceeding in the aggregate twenty-eight acres, for depots, engine-houses, machine-shops and yard-room, and donating the same to said company. Sec. 4. If upon a canvass of the votes cast at said election, it shall be found that a majority of such votes are in favor of the stock, and donation, the mayor' and city council shall be authorized and required to subscribe, in the name of the city of Fort Scott, for seventy-five thousand dollars of the capital stock of said company, on the following fundamental conditions, to-wit: First: That the said company, théir successors or assigns, shall, within six months from the date of the election above provided for, construct or cause to he constructed, and put in practical operation, a line of railway from Sedalia, in Missouri, to the city of Fort Scott, and shall extend the same as soon thereafter as practicable, in a southwesterly direction, to a point on the Missouri, Kansas & Texas Kailway, lately known as the Southern Branch of the Union Pacific Railroad, Eastern Division. Second: That said company shall make said line of railway from Sedalia, or from any point to the northwestwardly thereof, to which said company may hereafter extend its road, or cause the same to be made, the great through-line, by way of Fort Scott, to the southwest, and south, through the Indian Territory, to Texas; and no other line of railway shall be constructed by said company, or its successors, from Nevada, in Missouri, south of Fort Scott, through Bourbon or Crawford counties, in Kansas. Third: Said company shall make or cause Fort Scott to be made the end of a division on said line of road, and shall erect engine-houses and machine-shops at or near said point, before doing so at any other point southwest of Sedalia, on the through-line of railroad from Sedalia by way of Fort Scott to the Indian Territory and Texas, as soon as the business of said line shall, in the opinion of said company, r-ender such shops necessary. Sec. 5. The mayor and city council shall be further authorized and required to issue the bonds of the city in payment for said stock, at par, that is, to the amount of seventy-five thousand dollars. Said bonds shall be issued in sums of not less than one thousand dollars each, shall bear interest at the rate of seven per centum per annum, payable semi-annually in the city of New York, where the principal shall also be payable, shall have interest-coupons attached, shall be payable thirty years after the date thereof, and shall be executed in due form of law. Sec. 8. It shall also be the duty of the mayor and city council, in case the election hereinbefore provided for shall result in favor of the stock and donation, to proceed forth with to confer with the proper officers of said company, or its successors, and ascertain at the earliest possible moment the route selected by said company, or its successors, for the line of their road through the corporate limits of the city, and also the grounds chosen by them for depot and other purposes; and they are hereby authorized and required to proceed, in such manner as may be deemed most conducive to the interests of the city, to purchase so much land as may be necessary for the right of way through said city, and also twenty-five acres exclusive of the right of way, at such point convenient to the city limits, as the officers of said company may select, for depot, engine-houses, machine-shops and yard-room, and they are further authorized to issue bonds of the city, not exceeding twenty-five thousand dollars in amount, for the purpose of raising funds to pay for the same: Provided however, That in case the mayor and city council shall be of the opinion that the interest of the city will be better subserved by purchasing eight acres within the city limits, and twenty acres outside the city, at some point to be designated by the proper officers of said company, for machine-shops, engine-houses and yard-room, they shall be authorized and hereby required to do so, and to issue the bonds of the city in payment therefor, as above provided. Section 10 provided for donating to the company the right of way, and grounds, when purchased. By subsequent arrangement between the city and the company, the twenty-five thousand dollars of bonds were issued directly to the company, in lieu of the purchase by the city of the right of way and grounds. It appears that the company has complied with the first and second conditions of the subscription, but has broken the third, by building engine-houses and machine-shops at Parsons, and none at Fort Scott, and by making Parsons, and not Foi’t Scott, the end of a division. The petition, after the allegations necessary to show the breach of contract by the company, contains these and only these allegations as to damages: “And the plaintiff charges, that it has been greatly damaged by reason of the conduct of the defendant in this behalf; that if the defendant had complied with its said agreement, and made the city of Fort Scott the end of a division, on the line of its road, and erected the said engine-houses and machine-shops at or near said city, the so doing would have greatly increased the business and augmented the population and wealth of the said city, and thereby decreased the rate of taxation necessary to.pay the interest on said bonds so issued to the defendant. The plaintiff avers, that the sole consideration of and for the said twenty-five thousand dollars in bonds, was to enable the defendant to purchase grounds for said engine-houses and machine-shops,- etc.; and that the defendant received said bonds, negotiated them, and applied the proceeds to other and different purposes, and did not apply the proceeds thereof to the purposes aforesaid.” . In reference to the validity of the contract, so far as it involved the condition of locating the machine-shops, etc., at Fort Scott, it is hardly so presented by counsel as to justify us in deciding the question. Counsel for the city ignore it entirely, and assume, virtually, that there is no question of its validity. Counsel for the company do not directly attack its validity, nor discuss the power of the city to attach such a condition to its subscription. We quote the language of the brief. After referring to the act for the organization of cities of the second class, to show that no power is there delegated in reference to such a subscription, or contract, and asserting that the only power given is that by §§ 51, 52, and 53 of ch. 23 of laws of 1868, it says: “What authority then, did this latter statute confer? Simply to permit the city to subscribe to the capital stock of the railway company, and pay up such subscriptions in its bonds, or loan its credit to such company. No authority was given to enter into speculations in building machine-shops, engine-houses, speculating in" real estate, or any such thing. If it had entered into a contract for such subscription, or loan, with the conditions that are attached to the ordinances herein, it is barely possible it could enforce it in case of breach, by a recovery in damages — but only such damages as would bear a pro rata proportion between those conditions performed, and those not performed. In other words, that it .could only make such a contract, as would itself furnish the measure of damages. It could take the necessary measures to protect itself in what it paid, but no further.” * * * “For the purpose of this argument, I admit that it may enforce the performance of the conditions upon which the subscription was made, provided they are legal, and mutually operative. But in case of breach, it can only recover such damages as grow out of the contract, and then to be measured pro tanto.” We shall therefore assume that the contract of subscription, with the conditions attached, was valid and binding. It is obvious, that the question of power of a municipality, in this direction, may arise in at least two ways: first, where, without any subscription to the capital stock, a municipality makes a contract with a railroad company for the location by the latter of its engine-houses and machine-shops in consideration of municipal aid; and second, where the location is made as a condition of a subscription to the stock. Chapter 29' of the laws of 1869, amending the sections of the law of 1868 heretofore cited, provides in terms for subscriptions by municipalities “upon such condition or conditions as may be prescribed” by them. So that express statutory authority is given for a subscription upon conditions other than the mere cash or bond payment for the stock. Taxable property- We pass then to the remaining question as to the measure of damages.- As the charge of the court is not in the record, we cannot say what rule was laid down by the court for the admeasurement of the damages, and can only in- . . _ . , quire whether the testimony admitted, bearing upon the matter of damages, was properly admitted. While the certificate of the judge shows that the record does not contain all the testimony, yet as the amendment suggested by counsel for the city was, to insert, in lieu of the statement that it contained the entire testimony, the statement that “the foregoing is the substance of the testimony taken upon said trial, and submitted to the jury,” we feel justified in assuming that we have in the record the main matters of evidence upon which the jury based their estimate of damages. Whether this be so or not, if matters improper for their consideration were submitted to them, we cannot say that such matters did not enter into and form a part of their estimate of damages, and so prejudice the rights of the plaintiff in error. Referring to the record, we find that -the court permitted testimony, over the objection of the defendant, tending to show the changes in the population and in the values of real estate in the city, the number of manufactories, dry-goods stores, etc., the price of fuel, etc., from the year prior to the subscription and until after the building of the machine-shops and engine-houses at Parsons. And so far as population and values are concerned, the inquiry was not directed to the number of hands whibh would be employed about the shops and engine-houses, nor to the value of shops and houses as taxable property, but to the general changes of population, and the depreciation generally through the city of the value of real estate. It also permitted, over like objection, testimony as to the amount paid monthly by the railroad company to their employés at the machine-shops, at Parsons. It is obvious that this testimony had no bearing on the question of a breach of the contract, but 1 i _ must have been admitted as ,bearing upon the question of damages. These matters therefore were presented as tending to show how much the city had been damnified by the failure of the company to comply with its contract. In other words, if the city had lost in population since the building of the shops at Parsons, the jury might attribute the loss to that fact, and mulct the company in damages accordingly. If real estate had declined in value, if the number of stores, factories, etc., had decreased, the same fact might be taken as the cause, and the company held responsible therefor. We are clearly of the opinion that this testimony was inadmissible, though we are not so clear as to what, in a case like this, is the proper rule for the measurement of damages. The testimony was inadmissible for two or three reasons. First, it involves a mere" speculation. There is no certain connection of cause and effect between the failure to build machine-shops and engine-houses, and the decline in population, or decrease in values. Granted, that the failure may tend to produce the decline and the decrease, yet it is but one of many causes; and' who can tell, or by what process can it be determined, how much of the result is due to this cause? A general or local financial depression, or failure of crops, the lack of business energy or tact on the part of the citizens, the jealousy of rival places, or the prejudice of the surrounding population, the superior activity and prosperity of adjacent cities, and many other causes, may. all have been actively at work, and the main if not the sole causes of the depreciation. To prove the result, and permit the jury to attribute it wholly to the single cause, would often work the greatest injustice. To present all these phenomena, and ask them to determine the extent to which this single cause has contribued to the result, is to invite the jury to the wildest speculation. It is something beyond the power of human wisdom to determine. Again, this is tantamount to an inquiry into profits, _ x . , and profits both remote and uncertain. I he city seeks to recover, not what it has paid out, nor the value of that which the company agreed to build, nor the amount which it would be entitled to collect in the way of taxes off from such improvements, but rather what profits it would have made out of the shops and engine-houses if they had been built according to contract. For the results in the way of increase of population, values, and business, are really nothing but the profits which might be expected to flow from the performance by the company of its contract. Now, while profits are sometimes a legitimate matter of inquiry in actions for damages on account of breach of contract, yet it is only when such profits are the direct and immediate fruits of the contract. The direct result of the performance of the contract would be, the addition to the taxable property of the city, the value of the improvements made within the city. ■ The indirect result might be the increase of the value of real estate generally through the city. And it was this indirect result, to which the examination of witnesses was directed. Suppose that it were within the power of a city, as it is of a private corporation, to engage in manufacturing, and it had made a contract with an individual to build for it a factory: what, in case of a breach of such contract, would be its measure of damages? Could it recover for the enhanced value of the real estate within the city which might be expected to result from the addition of such a manufacturing establishment? Clearly not. Such a result, while it might be termed the profits to flow from the enterprise, is a result too remote and uncertain to become a legitimate matter in the estimate of damages. Yet, wherein does the illustration differ from the case at bar? Again, the theory of the law, in the matter of damages, is compensation. It aims at nothing more. Indeed, it is said by a leading writer on the subject, that “the law in fact aims, not at the satisfaction, but at a division of the loss.” Sedgwick on the Measure of Damages, 3d ed., p. 35. It does not intend to so award damages that a plaintiff profits more by his adversary’s breach, than he would by his performance of his contract. In matters ex delicto, the range of inquiry is wider than in actions, ex contractu. Some reasons for this are well stated by Mr. Justice Christiancy, in the case of Allison v. Graham, 11 Mich. 552, from whom we quote as follows: “There are some important considerations which tend to limit damages in an action upon contract, which have no application to those purely of tort. Contracts are made only by the mutual consent of the respective parties; and each party, for a consideration, thereby consents that the other shall have certain rights as against him, which he would not otherwise possess. In entering into the contract, the parties are supposed to understand its legal effect, and consequently the limitations which the law, for the sake of certainty, has fixed for the recovery of damages for its breach. If not satisfied with the risk which- these rules impose, the parties may decline to enter into the contract, or may fix their own rule of damages when in their nature the amount must be uncertain. * * * Again, in the majority of cases upon contract, there is little difficulty from the nature of the subject in finding a rule by which substantial compensation may be readily estimated; and it is only in those cases where this cannot be done, and where from the nature of the stipula tions, or the subject-matter, the actual damages resulting from a breach are more or less uncertain in their nature, or difficult to be shown with accuracy by the evidence, under any definite rule, that there can be any great failure of justice by adhering to such rule as will most nearly approximate the desired result. And it is precisely in these classes of cases that the parties have it in their power to protect themselves against any loss to arise from such uncertainty, by estimating their own damages in the contract itself, and providing for themselves the rules by which the amount shall be measured, in case of a breach; and if they neglect this, they may be presumed to have assented to such damages as may be measured by the rules which the law, for the sake of certainty, has adopted.” In Sedgwick on the Measure of Damages, 3d ed., p. 34, the rule is thus stated: “ In all cases growing out of the nonperformance of contracts, and in those of infringement of rights, or nonperformance of the duties imposed by the law, in which there is no element of fraud, willful negligence, or malice, the compensation recovered in damages consists solely of the direct pecuniary loss, which includes, in mere money demands, interest for the detention of the amount claimed, and the costs of the suit brought for the recovery of the demand. No indirect loss is accounted for.” Now, what what was the direct pecuniary loss of the city, in cage a^ ^,9 pajj $100,000 in bonds, and some subsequent interest, for the entire agreements of the company. Does not the amount paid fairly represent the direct pecuniary loss? and if that amount was returned to the city, would she not receive compensation ? So that, if it could be ascertained what amount the city paid for this particular part of the company’s agreements, and that were returned, would she not receive all to which she was entitled? Would she not be compensated? Wherever therefore, in case of a subscription upon conditions by a city to the capital stock of a railroad company, there has been a failure on the part of the company to comply with one or more of the conditions, and it can be shown by the contract, or aliimde, what amount was Pa^ as a consideration for the condition or con¿itions broken, such amount and interest is the proper measure of damages. If in this case the allegation of the petition were sustained by the evidence, and it was shown “that the sole consideration of and for the said twenty-five thousand dollars in bonds was to enable, the defendant to purchase grounds for said engine-houses and machine-shops, etc.,” that amount at least, with interest, would be properly recoverable from the company. Or, if there were more than this one consideration for such bonds, and the value of the other could be determined, then the difference would be properly recoverable. Again, where the unperformed condition is the erection within the city of buildings, or other improvements, another measure of damages may be accepted. The city, by the nonperformance of the condition, loses the value improvements for purposes of taxation, and this is a direct pecuniary loss, and one sus- ceptible of determination with reasonable certainty. The average rates of taxation in the past — there being no exceptional causes of temporary excessive taxation — may fairly be accepted as the rate of the. future. The value of the improvements being shown, the amount of the annual tax is a simple mathematical calculation. This annual tax may be considered in the nature of an annuity, whose present value is susceptible of exact determination by the ordinary tables. In a case like the present, where the size and value of the contemplated improvements are not fixed by the contract, the law implies that they shall be such as are reasonably suited to the purposes for which they are to be used. We suggest these measures of value as applicable, one or both, to the case at bar, though -at least for the latter an amendment would have to be made to the petition. Cases may arise, perhaps the case at bar (when all the facts are presented) may be found to be such an one, m which the contract is an entirety, and there is in it no means of apportionment; and nothing can be shown aliunde to establish an apportionment, nor to show the relative or absolute values of the conditions performed, and those broken. In such a case, the rule of law, we take to be, that no action can be maintained to recover the consideration, nor upon a quantum meruit, until all the conditions are performed; and-that in case the consideration be paid in advance, and only part of the conditions are performed, the entire consideration can be recovered. Yet to this conclusion, in any given case, the law reluctantly comes, and only when it is perfectly clear that, by no construction or evidence can there be any apportionment or determination of values. With these suggestions we conclude this opinion, fully aware that there may be difficulties in the further progress of this case which we have not guarded against. We are clear that the testimony was improperly admitted, and therefore the judgment must be reversed. We are satisfied that the rules we have laid down for the measurement of damages' in this class of cases are correct; but how far either one of them may be found applicable in the future trial of this case, we cannot now determine, the testimony on the trial already had having been turned in an entirely different direction. The judgment of the court below will be reversed, and a new trial ordered. All the Justices concurring. [*Although -wholly immaterial to any question controverted or decided in this court, it is due to the “truth of (personal) history,” to say, that Mr. Webb was not then, or at anytime, the attorney or an attorney for the M. K. & T. Ely. Co. in this action or proceeding; but in presenting the case-made to the trial judge, for his signature, Mr. W. was merely performing a friendly office for (and at the personal request of) Judge Sears, the Company’s attorney, who was at that time absent. — Bepouter.]
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The opinion of the court was delivered by Brewer, J.: The facts in this case are as follows: On October 28th 1871, one W. H. Hull was in possession of two lots in the city of Iola, under a bond for a deed from the holders of the legal title. ' He had paid part of the purchase-money, and the time for the payment of the residue had not yet expired. Upon these lots he had made improvements to the amount of $800. On that date he executed a note to defendant in error, and to secure the same gave a mortgage upon these lots. This was recorded Nov. 8th 1871. Subsequently, the holders of the legal title conveyed the property to Maggie Murray, one of the plaintiffs in error, and she conveyed an interest to Etta Jones, the other plaintiff in error. These conveyances were subsequent to the expiration of the time for Hull to complete his payments. Maggie Murray paid $40 to the holders of the legal title for the conveyance, but Etta Jones paid nothing to Maggie Murray for her deed. They paid Hull however $220 for his improvements. Maggie Murray had knowledge at the time of her conveyance of Hull’s interest and possession, but not of Lapham’s mortgage, ‘ Etta Jones knew nothing of the conveyance to herself, or anything about the matter, until suit was commenced to foreclose the mortgage. Her husband however, who acted as. her agent in the matter, had full knowledge of Hull’s interest and possession, and of Lapham’s mortgage. In fact, he was one of the holders of. the legal title who had executed to Hull the bond for a deed. The deeds to Maggie Murray and from her to Etta Jones, and the payments of money, were a continuous and simple transaction. Upon these facts the district court rendered a decree of foreclosure and sale of the property. Two or three questions are presented for decision. It is insisted that no decree of foreclosure could be entered because no legal service was made upon Hull, the mortgagor. Service was attempted by publication, but it is insisted that this was fatally defective. Conceding this to be so, (though we express no opinion as to whether it was so or not,) yet these plaintiffs in error are not in a position to take advantage of any such defect. The petition alleges the execution of the note and mortgage, and that so much remains due on the note. These plaintiffs in error in their answer make no denial of this. As between Lapham and them, it is an admitted fact. It also appears that they are the present holders of the legal title. Hence, though the mortgagor was never in court, was never even made a party to the action, the court might find the amount of the lien, and direct the sale of the property to satisfy that lien. It often happens that the title to property subject to a lien passes through several parties subsequent to the date of the lien. Now, if no personal judgment is sought, but only the subjection of the property to the payment of the incumbrance, it is enough to bring th.e present holders of the title into court, and, the amount of the lien being admitted or established, a valid decree of foreclosure may be entered, and the defendants cannot disturb the decree on the ground that the party who originally created the lien was not made a defendant. Again, it is said that Hull had no mortgageable interest in the land. This is a mistake. True, he did not hold the legal title, but he had an interest in the property. A bond for a deed is often in equity declared to be equivalent to a conveyance of the property with a mortgage back. His was an interest which was the subject of sale, and would pass by a deed of the property. Gen. Stat. p. 999, § 1, clause 8; p. 185, § 2. It was an interest which he could use as security for a loan, and could pass for that purpose by an ordinary real-estate mortgage. Again, it is insisted, that as Hull only had an equitable interest in the property it could not be sold under an ordinary foreclosure proceeding, but could be reached only in the manner indicated in §§ 481 to 504 of the 0ivil code, providing for “proceedings in aid of execution.” Here too we must differ from counsel. If the mortgage had been of a specific interest, the decree could have been to sell that interest, and under the order of sale the sheriff could have sold that. interest. Being a mortgage of apparently the entire title, the decree properly followed the mortgage, and the officer must proceed to sell the entire estate, but the purchaser takes only “ as good and as perfect an estate in the premises therein mentioned as was vested” in the mortgagor. It is unnecessary to decide whether upon an ordinary execution an equitable interest could be seized and sold. All we decide is, that when a mortgage appears upon its face to convey the entire estate, the decree may follow the mortgage, and the purchaser at the sale will get whatever estate or interest the mortgagor had, and that it is no ground of error that the mortgagor had only an equitable interest in the land. Finally, it is insisted that notwithstanding the mortgage, the conveyances to the plaintiffs in error passed a good title, free from any incumbrance of the mortgage. Kirkwood v. Koester, 11 Kas. 471, is cited as authority upon this. There is this manifest difference between the cases: In that, the parties who claimed adversely to the lien upon the , _ _ . _ 7. /> 7 ' equitable interest, were innocent and 'bona jiae incumbrancers of the legal title, without any notice 0f either the equity or the lien thereon. Here, the purchasers of the legal title had full knowledge of the equitable interest, in fact purchased it, and one of them, Etta Jones, through her agent had full knowledge of the mortgage upon such interest. Now, while it may be true, that in a contest between a lien upon an equitable interest, and a lien upon the- legal title, the latter, though subsequent in time will be preferred to the former if the holder thereof be an innocent and bona fide holder without notice, yet the reverse will be true, if he at the time of obtaining his lien had full knowledge of the outstanding equity, and the prior lien thereon. As to Etta Jones, it appears that she through her agent had, as stated, full knowledge of both the equitable interest and Lapham’s mortgage thereon. As to Maggie Murray, it appears that she had knowledge of the equitable interest, but not of the mortgage. Hull however was in possession of the lots, and had made valuable improvements on them. These improvements she bought. Now, § 20 of the conveyance act, (Gen. Stat. 187,) provides, that “every such instrument in writing, [and this, by prior description, includes mortgages, and mortgages upon equitable interests,] shall from the time of filing the same with the register of deeds for record impart notice to all persons of the contents thereof; and all subsequent purchasers and mortgagees shall be deemed to purchase with notice.” While this general provision, as respects notice, may be limited so far as relates to conveyances or mortgages of equitable interests, by the condition of the legal title, and the knowledge which the holders thereof have of the existence of the equity, as indicated in Kirkwood v. Koester, yet, aside from that limitation, it is of controlling force. Whoever buys a legal estate, having knowledge of an outstanding equitable interest, is chargeable with notice of any record of conveyance or incumbrance thereof. Whoever buys an equitable interest in land, is also chargeable with like notice. In fact, knowledge of an equitable interest carries with it notice of the condition of such interest as is apparent from the public records. ■ We see no error in the record, and the judgment must be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: This action was brought originally in a justice’s court by McFadin against Douglas for $300 damages alleged to have resulted from the breach of certain stipulations in a lease. It appears from the record that, on August 26th 1873, defendant Douglas by a parol contract leased to plaintiff McFadin, for the term of one year, the farm upon which Douglas resided, upon the following terms, to-wit: Douglas was to furnish everything, and board McFadin at his house; McFadin was to do all the work; Douglas was to have two-thirds of each crop raised on the premises, and McFadin one-third. On September 4th and 5th Douglas told McFadin that he could not board him any longer at his house, and wanted McFadin to give up the lease, or allow some other man to fill his place. McFadin did not agree to this; but still, on September 5th he left Douglas’ house.- Three days later, on September 8th, he commenced this action, and alleged among other things that Douglas refused to board him, or to allow him to work on said premises. On the 16th, the case was tried before a justice and- a jury. The defendant filed a bill of particulars, denying generally the allegations of the plaintiff’s bill of particulars, and also setting up as a defense to the plaintiff’s action that the time said lease was entered into, and subsequently thereto, the plaintiff was “infected with a loathsome, contagious and infectious disease, to-wit, syphilis, which disease afterward, and at the time the plaintiff boarded at the defendant’s house, endangered the lives and health of defendant and his family,” etc., and that at the time the lease was entered into the defendant was ignorant of said disease, and that because of such disease the defendant refused to allow the plaintiff to longer board at his house. This defense was stricken out by the court, on motion of the plaintiff. On the trial the defendant tried in various ways to introduce evidence to prove these matters, but the court in every instance, on the objection of the plaintiff, excluded the evidence. And finally, at the close of the trial, the court instructed the jury “that in making up, their verdict they are not to take into consideration any disease that the plaintiff may have been afflicted with, to which allusion has been made during -the trial.” Exceptions were duly taken by the defendant to these rulings, and to all the other rulings of the justice adverse to him. We think the justice erred in these rulings. The defendant was not bound to board the plaintiff at his house while the plaintiff was affected with said disease, although the defendant had previously agreed to. board the plaintiff. The plaintiff practiced a fraud upon the defendant, when he procured from the defendant such an agreement without first disclosing to the defendant his own condition as*to health. The plaintiff testified on the trial, among other things as follows: “Defendant was to furnish team and seed and farming utensils, and board me at his house.” The defendant testified on the trial among other things as follows: “I also agreed to board him [the plaintiff] at my house.” It was evidently the intention of the parties at the time of making the contract that the defendant should have the benefit of boarding the plaintiff at his own house; but even if it was not, still the defendant could not have hired the plaintiff’s board at some other house for the same price that he could have hired the board of a person in good health and free from said infectious and loathsome disease. And therefore the plaintiff had no right, while so diseased, to demand his board from the defendant under any circumstances. Plaintiff further testified: “ Defendant said he did not want me to go on with work, and that he could not board me at his house any longer. Defendant never put me off the premises. He has never refused to let me work the farm.” The defendant further testified: “I never turned him [the plaintiff] off the place, or refused to let him work it; but I did not want him to board or lodge at my house while he had the disease.” It was also shown by the evidence that the defendant offered to furnish a man for the plaintiff, while the plaintiff was diseased, for sixteen dollars per month, and that the defendant would pay the man and take the amount out of the plaintiff’s share of the crops, but the plaintiff refused, and said he was not able to hire a man. It was also shown that the defendant offered to pay the plaintiff for what he had done on the premises, provided the plaintiff would give up the lease, but the plaintiff refused. And then, as we have before stated, the defendant refused to board the plaintiff any longer at his house, and the plaintiff left the premises and then commenced this action. During the trial the plaintiff, for the purpose of showing his damages, proved that there were seventy-two acres of arable land on the premises; that the annual rental value thereof was from $2.50 to $3 per acre; and that board at a farm-house was worth three dollars per week. The plaintiff’s loss was in fact his board for one year, and one-third of the crops raised on said 72 acres of land; or, in other words, one-third of the use of said 72 acres for one year. But he gained the labor that he would have had to bestow on said land. Now in our opinion, from the evidence, the plaintiff, was not entitled to recover anything. He was not entitled to recover for the use of the land, or for one-third of the crops, for the reason that the defendant never refused to’let him cultivate the land. And he was not entitled to recover for board, for the plaintiff had a reasonable and legal excuse under the circumstances for refusing to board him any longer. Or in other words, the defense the defendant set up and offered to prove was a good one, and the justice erred in excluding it. The jury rendered a verdict for the plaintiff and against the defendant for $30. How much of this verdict was for board, and how much of it was for the use of the land, we do not know, and cannot tell. It may have all been for board. It may have been the value of the board for a year with something deducted for the value of the plaintiff’s labor. Or it may have been for the sum of the board and the plaintiff’s share of the crops, with the value of his labor deducted. After the verdict was rendered the defendant moved for a new trial for various reasons. The justice overruled the motion, and then on said 16th of September rendered judgment in favor of the plaintiff and against the defendant for $30 and costs. The defendant then took the case to the district court on petition in error. The district court affirmed the judgment of the justice. In this we think the district court erred, for the reasons already given. After said judgment was affirmed in the district court, the defendant Douglas brought the case to this court on petition in error. There has been no appearance in this court on the part of the plaintiff McFadin, and hence we can only conjecture as to the grounds on which he may rely to sustain his judgment in the justice’s court. As both the justice of the peace and the district court, in our opinion, erred, the judgment of the district court must be reversed, and cause remanded, with the' order that the judgment of the justice of the,peace be reversed, and for such further proceedings as may be proper in the case. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: This was an action in the nature of a bill in chancery, brought by S. K. Cross and Thomas Cross against Hiram McAllister, as trustee of Burlington township, and also against said Burlington township, to set aside and cancel five certain promissory notes, and a certain real-estate mortgage made to secure the payment of said notes. One of the notes reads as follows: “ $2,000. Burlington, Kas., February 27, 1871. “ One year after date I promise to pay to Burlington township, Coffey county, Kansas, or to the order of the township trustee of said township, in money, or in the bonds of said township issued to D. Cross & Sons, two thousand dollars, value received. S. K. Cross.” The other notes are precisely like this one, except that they are made payable in two, three, four, and five years after date; respectively. They aggregate, in amount the sum of ten thousand dollars. They were given for a like amount of the bonds of Burlington township issued to D. Cross & Sons, of which firm S. K. Cross was a member. , It is claimed that said bonds are void, because they were issued to said D. Cross & Sons merely for the purpose of assisting them in erecting a mill and mill-dam in said Burlington township. It is not claimed that said bonds are void because of any fraud or mistake of facts, or because of any irregularity in their issue; but it is claimed that they are void solely on the ground that Burlington township had no power to issue them. Now for the purposes of this case, but without deciding the question, we shall assume that said bonds are void, and void merely because the township of Burlington had no power to issue them. And upon this hypothesis, or assumption, can the plaintiffs below maintain this action ?■ Upon what ground do they invoke the aid of a court of equity, rather than the aid of a court of law ? Not upon the ground of fraud, accident, or mistake; not upon the ground of any breach of confidence or trust; not upon the ground that confiding innocence has been overreached by far-seeing vice; for none of these things are claimed. Not upon the ground that the plaintiffs have no adequate remedy by the ordinary course of proceedings at law, and not upon the ground that the plaintiffs will suffer any great or irreparable injury, or indeed any injury, which it would be inequitable for them to suffer; for presently we shall show that the plaintiffs have an ample remedy at law, and that there is no danger of their suffering more than it is equitable and right for them to suffer. Admitting that said bonds are void, and that they were the sole consideration for said notes and mortgage, the plaintiffs then claim that they can maintain this action solely upon the ground “that the trustee of Burlington township neglected and refused, on the demand of said plaintiffs, to deliver said notes and mortgage up to said plaintiffs, but thereafter did and does claim that he will collect the same when they become due, whereby said plaintiffs would be liable on said notes and mortgage.” We however think differently. Said notes are not negotiable instruments. (Gen. Stat. 114, § 1; 1 Parsons on Notes, 45, et seq., and cases there cited.) Even if it be considered that they-are made payable to the order of the township, or to the order of its trustee, so as to make them negotiable in that respect, yet still they are not made payable in “ money certain.” They are made payable alternatively, either in money, or in said supposed worthless bonds, at the choice and option of the payee of the notes. Hence they cannot be transferred to any one so as to defeat any defense which may be set up against them. They can never be collected against the will of the payor, except by an action in the courts; and whenever; such an action may be commenced, the payor, or any one in privity with him, may set up any defense which he may have. Besides, if the payor chooses he may at any time pay off said notes by returning to the township said worthless bonds. These remedies are certainly ample, and the plaintiffs have no need of the present action. But if no action for the collection of said notes shall ever be commenced, so as to allow the plaintiffs to set up their defense, then the plaintiffs can certainly suffer no injury, or at most none which they ought not to suffer. They lose nothing by waiting. The statute of limitations will not run against them on said notes and mortgage, but will run in their favor. But if it be said that the notes and mortgage should not be allowed to hang over them until the statute of limitations shall bar any action upon •them, then it may be answered that the plaintiffs ought not to allow said bonds to hang over said township until the statute of limitations shall bar all action upon the bonds. It will take just as long for the statute of limitations to bar an action upon the bonds as upon the notes and mortgage. The prayer of the plaintiffs’ petition is, that the defendant shall be required “to deliver up to said plaintiffs said notes and mortgage, and that said mortgage may be canceled on the records.” Now it. would be inequitable and unjust to require the township to deliver up the notes and mortgage, and have them canceled, and yet allow the plaintiffs to retain the bonds, which we suppose are apparently, and upon their face, as good and as valid as the notes and mortgage. We suppose that all the instruments upon their face appear to be valid, although we have no copy of the mortgage, nor of any of the bonds. And as the notes and mortgage were given for the bonds, and the bonds for the notes and mortgage, and as all are apparently valid, but in fact void, it would seem to be just and equitable that when one set of the instruments is delivered up and canceled, the other set should also be delivered up and canceled. The township has as much interest in protecting its reputation and character for paying its debts, as the plaintiffs have in protecting their reputation and character for paying their debts. The township no more wants bonds, apparently good and unpaid, to be standing out against it, than the plaintiffs want notes and a mortgage apparently good and unpaid to be standing out against them. The reputation of repudiating what appear to be valid debts, will injure the credit of the township as much as the same thing would injure the credit of the plaintiffs. The township would no more want to go into the market to sell really valid bonds, while these apparently-valid but void bonds are still outstanding, and apparently due and unpaid, than the plaintiffs would want to go into the market with really valid notes and a valid mortgage while these apparently-valid but really invalid notes, and this apparently-valid but really invalid mortgage, are outstanding apparently due and unpaid. Let the plaintiffs do equity before they seek equity. There is no pretense that said bonds have ever been lost, or destroyed, or transferred from D. Cross & Sons to any one else. And it will be remembered, that the plaintiffs are members of the firm of D. Cross & Sons. If the bonds have in fact been lost, destroyed, or transferred, the plaintiffs should show it. But still we do not suppose that merely showing that the bonds have been transferred, if transferred for value, would be sufficient to authorize the plaintiffs to maintain this action. If the plaintiffs, or D. Cross & Sons, have sold the bonds to other persons for a valuable consideration, and are still enjoying the benefits of that valuable consideration, how in the name of equity can they ask to be relieved from paying anything for the bonds, and thereby force the township either to lose the value of the bonds, or repudiate the payment ? And how in the name of equity can they compel the township to repudiate their bonds, and thereby compel the purchasers of the bonds to lose what they have paid for them ? Why do not the plaintiffs gather up these supposed worthless bonds and return them to the township ? This would be equity on the part of the plaintiffs; and by doing this the plaintiffs would then have the equitable right to ask that their notes and mortgage should be delivered up to them, and that they be canceled. The judgment of the court below must be reversed, and cause remanded, with the order that the demurrer to the second defense stated in the answer of the defendant be overruled, and for such further proceedings as may be proper in the case. All the Justices concurring.
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The opinion of the court was delivered by Brewer,. J.: Defendant was convicted in the district court of Mitchell county upon an information charging “willful and malicious oppression, partiality, misconduct, and abuse of authority, in his official capacity of a justice of the peace,” under § 207 of the crimes act, page 363 of Gen. Stat. That section reads: “Every person exercising or holding any office ■ of public trust, who shall be guilty of willful and malicious oppression,” etc. The facts as they appear were, that the defendant, a justice of the peace, after rendering a judgment against one Fred. E. Smith for $26.58 debt, and $13 costs, required a bond for appeal in the sum of $350, and refused to approve the surety offered. He claimed that he was advised by plaintiff’s counsel, and so believed, that the bond must be large enough to cover costs in the district court, and that he was also advised by several disinterested parties that the surety offered was wholly insufficient. Upon the trial the court gave this instruction: “ Gross ignorance of law, in a case like this, amounts to criminal intent.” The same doc trine was recognized in several other instructions. Is this the law? If it is, it makes the office of a justice of the peace attendant with more dangers than is ordinarily supposed. These officers are seldom lawyers; they are chosen not on account of their knowledge of the law, but on account of their supposed good sense. It may be, and often is, that they are deplorably ignorant of the decisions of the courts, the accepted construction of statutes, and the well-settled rules of evidence and practice. They may be “ grossly ignorant” as to these matters. Shall they, intending to do right, and exercising the best judgment they have, be punished criminally for their gross ignorance? Take this very case. The bond required was unnecessarily large, but the statute does not fix the amount. It says it shall be “ in a sum not less than fifty dollars, nor less than double the amount of the judgment and costs.” If the justice, on the suggestion of plaintiff’s counsel, makes it large enough to cover the possible costs in the district court, or even larger than was necessary for that, and acts in good faith, shall he be punished criminally for his error? Or, if in the same good faith he rejects a surety, in fact good, but .whom he believes from the information he has received to be insufficient, must he be fined, or sent to the county jail, for his error? We cannot think this is the law. The grossness of the error may be a circumstance tending to show an intent to do wrong, mayi perhaps in some cases be sufficient to sustain a finding of' such intent; but that is as far as the law will go. It is a question of fact for the jury to determine whether the erroneous ruling indicates ignorance of the. law, or an intent to do wrong. If the latter, it may be criminal. If the former, not. Gross ignorance is not, in a case like this, the equivalent of a criminal intent. It is, by the statute, only “ willful and malicious ” conduct, that renders a, party guilty; and no matter how ignorant he may have been, or how grossly he may have erred, he has not violated the statute unless his acts were willfully and maliciously wrong. See State v. McDonald, 4 Harr. (Del.) 555; State v. Porter, 4 Harr. 556; Common wealth, v. Shed, 1 Mass. 227; 1 Bishop Cr. Law, §§ 299, 320, 3d ed.; Wharton Am. Cr. Law, pp. 833, 836; Clark v. Spicer, 6 Kas. 440. The judgment will be reversed, and the case remanded with instructions to grant a new trial. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: Is a mortgage given by a preemptor prior to the entry of the lands, void? and if so, are his heirs estopped from setting up its invalidity in an action to foreclose the mortgage? These'are the only questions presented in this case. The mortgage was on the lands entered, and on four town lots. It was given long before the entry, and to secure simply the purchase-price of the four lots. Intermediate the mortgage, and the entry, the mortgagor died, and the entry was made by the widow, in the name and for the benefit of the minor heirs. Sec. 13 of the act of congress of September 4th 1841, (U. S. Stat. at Large, p. 456,) provides that before an entry shall be allowed, the claimant shall make oath that “he has not directly or indirectly made any agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title which he might acquire from the government of the United States should inure in whole or in part to the benefit of any person except himself ; ” and it also provides, that “ any grant or conveyance which he may have made, except in the hands of bona fide purchasers for a valuable consideration, shall be null and void.” The question is not free from difficulty. On the one hand it may be said that, as viewed in this state, a mortgage is neither a grant, nor a conveyance, and therefore not within the letter of the statute; that a statute like this ought not to be extended by any construction beyond its plain letter, nor held to invalidate transactions not specifically and directly forbidden; that often a preemptor needs assistance to com píete his payment, which assistance he can only obtain by giving the land itself as the security, and that to deny him the use of the land for this purpose is against the spirit of the law. Watterson v. Kirkwood, 8 Kas. 465. On the other hand it may be urged, that the terms, “grant,” and “conveyance,” are broad enough to include a mortgage as much so as the term “alienation,” in the constitutional and statutory homestead sections, and that it is so used in this section, is evident from the terms of the affidavit required; that a mortgage is certainly an “agreement or contract,” by which the title “would inure in part to the benefit” of the mortgagee, and that as the preemptor must swear that he has made no such agreement, so the agreement when made must be held null and void. McCue v. Smith,. 9 Minn. 252; Warren v. Van Brunt, 19 Wall. 646. We are inclined to favor the latter construction, and to hold that congress intended by this section, that when the title passed by the entry to the preemptor it should pass perfect and unincumbered. This act was passed in 1841. Mortgages, always in form conveyances, were then regarded by the profession generally more as conveyances, and subject to the laws and conditions of conveyances, than at present, perhaps anywhere, and certainly in Kansas; and in the light of the general understanding then, must this section be considered. It seems more reasonable that by these terms, “grant and conveyance,” was intended all forms of conveyance, whether absolute, as a warranty deed, or upon condition, as a trust deed, or mortgage. We see no ground for the application of estoppel. The mortgagee was not ignorant of the facts. No fraud, misrepresentation, or concealment is shown. The mortgagee sold four lots, and as additional security took the land. The judgment will be affirmed. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: Many of the questions in this case are similar to those in the case of Challiss v. Commissioners of Atchison County, just decided. They need not therefore be considered here. One principal difference is, that here the sale certificates were held by the plaintiff in error, Stebbins, and it may with more propriety be said that an injunction will not “embarrass the collection of the public revenues.” The county has received the money, and the controversy is one simply between two individuals, one seeking to free his property from an apparent incumbrance, and the other seeking to perfect a title to that property — a title which he has acquired for but a small fraction of the value of the property. Yet, notwithstanding the difference in the positions which the defendants in the two cases occupy, the same decision must be made in each, for the claim of the plaintiff in each rests upon the same foundation. It matters little what wrong a defendant may be doing, unless the plaintiff’s claim is equitable; and in each of these cases the plaintiff, without paying a cent toward the public revenues, is asking a court of equity to release him from all obligations to pay. And though the county is no longer the holder of these certificates, yet, if this action be sustained, it will be compelled to refund to the defendant the money he has paid for them. So that the ultimate result would be to release the plaintiff from his share of the public burdens, to deprive the county of this portion of the public revenues, and to cast a so-much-heavier burden on the other citizens and property-holders,. True, something might be done towards avoiding this result by a reassessment, levy, and sale, if authorized by the legislature. But owing to the delay and expense, this would only be a partial avoidance. One other question is presented, which affects a part of the property only. At one time there had been what was known as the Spring Garden-Addition of the city of Atchison. This was duly laid off into lots and blocks, and some of the tax certificates held by the defendant were upon lots in this addition. But before any of these tax proceedings were had this addition had been duly vacated, so that the lots and blocks had ceased to exist. It is insisted that by the vacation this addition ceased to be a part of the city, or subject to city taxation. On the 12th of February 1858 an act was passed by the territorial legislature concerning the city of Atchison, by the first section of which the boundaries of the city were defined. The property in controversy was outside of those boundaries. On the 11th of February 1859 another act was passed, in the first section of which it was provided among other things, that “all additions which have been or-may hereafter be made shall become and be a part of said city, after the plat thereof shall have been filed as required by law twelve months, and shall be liable for taxes as other city property after the commencement of the first fiscal year of said city thereafter.” By this act this addition became a part of the city. And the act provides for no temporary or conditional annexation. The ground platted is not to be a part of the city so long only as it remains platted, but it is to become and be a part of the city permanently. The act provides a way in, none out of the city. But in 1864 an act was passed providing for the vacation of town sites and additions, (Laws of 1864, p. 241,) and in that it is declared that, in case of a vacation, “all surveys for the subdivision of such lands are expunged from record, and declared null and of no avail in any court of this state, and the lands hereby restored to their original condition under the surveys of the United States government, as if no platting for a town had taken place.” This language is very broad, and it may possibly sustain the claim of counsel; but we do not care to decide the question, as we deem it unnecessary for the disposition of this case. For though this still be a part of the city of Atchison, and subject.to its taxation, we think the injunction must as to it be sustained. In the second section of the act last'cited it is provided that after the vacation the “land shall be as if never a town site, and shall be taxed as parcels of land by appropriate descriptions in acres.” These lots were assessed in disregard of this plain and positive requirement, and it is an error which involves something more than a mere irregularity.of description. It must be presumed that the assessment was fairly made as an assessment of lots with streets and alleys surrounding them, and the fact that these streets and alleys exist, or are supposed to exist, is an element which enters into and forms a part of and to that extent increases the valuation. How materially they did affect the valuation in this particular instance, we cannot say. Perhaps it cannot in the very nature of things be shown. The elements which enter into and determine the value are so essentially different in the case of town lots, and open fields, that it seems as though they were almost incapable of exact pecuniary measurement. As the case at present stands there is no attempt at it. More than that, the ground covered by the streets and alleys, being then private property, and subject to taxation, may yet be reached and compelled to bear its proportion of the public : burdens, for though the supposed streets and alleys may have increased the value of the supposed lots, yet they do not thereby become themselves exempt from taxation. We think therefore the district judge did not err in overruling the motion to vacate the temporary injunction as to these lots. The case may be thus summed up: The plaintiff is the owner of a certain tract in the city of Atchison which is liable to assessment and taxation as a single tract of so many acres. Portions of it, by descriptions through which they can be identified, are assessed and taxed as lots surrounded by streets and alleys. Such assessment includes and is based upon elements of value which do not exist in the case of unplatted ground, and which so far as now appears have no exact pecuniary measurement. The supposed existence of streets and alleys, while it increases the valuation of the ground assessed as lots, does not exempt from taxation the ground covered by the streets and alleys, which may hereafter be assessed and taxed. The assessment therefore is both irregular and unjust. It presents a case for equitable interference. The order of the district judge refusing to dissolve the injunction will therefore be reversed, except as to the lots in the so-called Spring Garden Addition, and as to them it will be affirmed. The costs will be divided! All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: The plaintiff, on the 5th of August 1873, filed his petition for divorce against the defendant, in the district court of Wabaunsee county, and at the September Term 1873 of said court obtained a decree of divorce. The service was by publication in the local paper, and by sending a copy of the petition and publication, as provided by § 641 of the civil code. Shortly after this decree, the plaintiff married one Miss Hafer, and by this last marriage had a child born to him. His second wife acted in good faith. His second wife, and the child, are alive, and living with the plaintiff. Such marriage and birth were prior to the proceedings of the first wife to set aside the decree. Before the September Term 1874 of said court, but after the September Term 1873 and the March Term 1874 had adjourned, the defendant filed her affidavit and answer, under §77 of the code, to set the decree aside, and to open- it, and to let her in to defend, on the ground that she had no actual notice of the pendency of the action before the decree was entered, and before the court adjourned at the September Term 1873. Upon the hearing of this application, the court found as- follows, to-wit: “ lst.-That there was due and legal service made by publication in a newspaper, as prescribed by law. • “ 2d.-That there was a copy of the petition and publication notice sent by mail, postage paid, as prescribed by § 641 of the civil code of 1868, on the 9th day of August 1873. “3d.-That said copy of petition was not received by the defendant, who was then at Edinburgh, Scotland, until after the decree of divorce was rendered, and that no other service in the case was had or made than as above stated. “4th.-That the defendant had no actual notice of the pend-ency of this suit until after the decree was rendered.” And upon these facts the court made an order opening the decree, and letting the defendant in to defend the action. Was there error in this order? Sec. 72 enumerates the cases in which service by publication may be had, and among them expressly enumerates actions for divorce. No question therefore can be made as to the legality of the decree of September, 1873. Sec. 77, upon which this application was based, provides that, “A party against whom a judgment or order has been rendered without other service than by publication in a newspaper, may, at any time within three years after the date of the judgment or order, have the same opened, and be let in to defend. Before the judgment or order shall be opened the applicant shall give notice, * * * and make it appear to the satisfaction of the court, by affidavit, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense; but the title to any property, the subject of the judgment or order sought to be opened, which, by it, or in consequence of it, shall have passed to a purchaser in good faith, shall not be affected by any proceedings under this section, nor shall they affect the title of any property sold before judgment under an attachment.” The question of the permanence of a decree of divorce, when attacked either by proceedings in error, by motion to set aside, or by direct proceeding on account of fraud and imposition, has frequently been before the courts, and the decisions are far from uniform. In McJunkin v. McJwnJcin, 3 Ind. 30, a decree of divorce was rendered upon constructive service. The court held that a section of the statute, similar to our § 77 above quoted, was inapplica ble, and partly because no provision was m'ade for a case like the one before us, a marriage intermediate the decree and the application. In Bascom v. Bascom, 7 Ohio, 465, the court decided that a decree of divorce was not the subject of review in the supreme court. It was conceded that the statute provided that divorce cases should be governed by the rules respecting proceedings in chancery, and that in chancery cases the right of review existed • but there was this difference : in divorce cases the testimony was oral, in chancery by deposition. Upon this difference the court concluded that there was no review of a decree of divorce. Manifestly a controlling consideration was the danger of intermediate marriage. It used this language in the opinion: “ When a divorce is granted, upon which one of the parties contracts new relations, and a third party acquires rights, it cannot be that a process could be had to reverse a decree, the consequences of which would be a severance of all those new relations. Such anomalous mischief cannot be engrafted on the practice of ,our courts, except by clear and explicit legislative enactment. That, we feel confident, can never take place. All the reasons that render a decision upon facts by a jury conclusive between the parties, unite in requiring that the decision of a court upon facts, on the hearing of a petition for a divorce, should be final, and stand beyond reach of judicial revision.” The same court subsequently, in Bingham v. Miller, 17 Ohio, 445, after deciding that the legislature had no power to grant divorces, yet in view of the fact that that power had been exercised without question for a series of years, and to hold the divorces void would bastardize many children, refused to disturb a divorce so granted. It also, in Parish v. Parish, 9 Ohio St. 534, decided that a decree of divorce obtained by fraud could not be set aside on an original bill filed at a subsequent term. The same doctrine wa’s announced in Green v. Green, 2 Gray, (Mass.) 361, Ch. Justice Shaw delivering the opinion. Yet in the same state, in Edson v. Edson, 108 Mass. 590, the supreme court sustained an application made by the defendant in the case itself, to open up the decree and be let in to defend, on the ground that the service, which was by publication, though regular on its face, and apparently good, had been secured by false and fraudulent representations as to residence of plaintiff, ignorance of defendant’s residence, etc., and that therefore no legal service had been made so as to give the court jurisdiction; and in the opinion it uses this language: “Reasons of public policy, or a regard to the consequences which might ensue to innocent parties from the exercise of a power to invalidate a decree of divorce after it had become res adjudieata, do not constitute sufficient reasons for a denial of ,the existence of the power.” In Dunn v. Dunn, 4 Paige, 425, service had been made of the subpoena outside of the state. On an application to set aside the decree, the chancellor held the service bad, but inasmuch as there had been a second marriage, while he permitted the question of the grounds for a divorce to be tried, refused to disturb the decree unless upon such trial it should appear that there were no sufficient evidence to sustain it. In other words, the case was to be tried after the decree. On the other hand, in Adams v. Adams, 51 N. H., a decree was set aside which had been obtained upon constructive testimony. In Weatherbee v. Weatherbee, 20 Wis. 499, service had been made by delivering a copy of the summons to the defendant outside of the state. A motion was made to set aside the decree, on the ground of irregularity in the service, and it was sustained. Cranch v. Cranch, 30 Wis. 667, in some respects resembles the case at bar. On an affidavit by the plaintiff of ignorance of defendant’s whereabouts, an order was made by a court commissioner for service by publication, publication made, and decree entered. There was a subsequent marriage, and after-begotten children.. On motion to set aside the decree, the order for publication was held void because made by one who, though a court commissioner, was attorney of th$ plaintiff, and because the affidavit of plaintiff was clearly shown to have been false and perjured testimony. In Allen v. Maclellan, 12 Penn. St. 328, C. J. Gibson uses the following strong language: “ It may seem an arbitrary act to expunge a sentence of divorce with a stroke of the pen, bastardize after-begotten children, involve an innocent third person in legal guilt, and destroy rights acquired in reliance on a judicial act which was operative at the time.” Yet the power of the court so to do was sustained. It may be said in reference to the case before us, as distinguishing it from some that have been noticed, that it contains nothing, as shown by the findings of the court, to impeach the regularity and fairness of the proceedings. Whatever may be the merits,of the dispute between the parties, and whatever upon a hearing of both sides might have been the judgment of the court, it is plain that the steps pointed out by the law were fairly and correctly taken. Service was legally, and without any trick, falsehood, or imposition, made, and the decree was, when entered, in all respects legal and valid. It must be apparent too, from the cases noticed, that ofttimes the hardship of an adverse ruling, if it has not directly led to the decision made, has induced the court to magnify matters of minor importance into circumstances of controlling weight. At the risk of being subjected to a like criticism, we are constrained to hold, that §77 does not apply to proceedings for divorce. “Without other service than by publication in a newspaper,” is, by its terms, the test of a right to its provisions. It is true, that in § 72 it is said that “service may be made by publication * * * in actions to obtain a divorce, when the defendant resides out of this state.” And if this were the only provision, it would be difficult to deny the applicability of § 77. But in the article concerning divorce and alimony, art. 28 of the code, Gen. Stat., p. 757, §641, it is provided that, “when service by publication is proper, a copy of the petition, with a copy of the publication notice attached thereto, shall within three days after the first publication is made be inclosed in an envelope, addressed to the defendant at his or her place of residence, postage paid, and deposited in the nearest post-office, unless the plaintiff shall make and file an affidavit that such residence is unknown to the plaintiff, and cannot be ascertained by any means within the control of the plaintiff.” Now this a part of the service. Without it no decree can properly be entered. It is a precaution ordered by the legislature to guard against the danger of decreeing a divorce without the knowledge and presence of both parties. It may be very inadequate, but it is worth something. It is a step in the right direction. But whether adequate or not, it is the legislative direction, and as such may not be disregarded. It may be said that, as in this case, the copy of the petition may fail to reach the defendant in time for the trial, and that then there is no other notice than by the publication, and §77 should be held applicable. True, the mailed petition and notice may give no actual notice; neither may the publication. But each is an effort toward actual notice, and the two combined are requisite for legal service. Service by copy at the usual place of residence, is actual service. The copy may fail to reach the defendant; actual notice may not be received by him. But the service is complete, and a judgment rendered cannot be opened because rendered without notice. Service is not always equivalent to actual notice, and does not always result in actual knowledge. It is not the actual result of any particular step, which determines whether it is or is not a part of the service. It is enough that the legislature has constituted it a part. And where the legislature has not in terms declared it a part, if the obvious scope and purpose of the step required is to secure notice of the pendency of the suit, it may fairly be considered a part of the service. Again, it may be said that if an affidavit of ignorance is filed, as provided, no copy is mailed, and then the only notice would be by publication. If the affidavit was false, it would make a case much resembling those cited from 30 Wis., and 108 Mass. But it will be time enough to decide that question when it arises. The conclusion then, to which we have come, though, as we freely admit, with grave doubts, is, that the mailing of the copy of the petition and notice, as required by said § 641, is a part of the service, and that therefore, in a case where such mailing has been duly made in addition to the publication of notice in the paper, § 77 does not apply, and that a decree legally entered under those circumstances cannot be set aside upon the mere showing of actual ignorance of the pendency of the suit. As the decree barring the defendant of any interest in' the plaintiff’s property follows from the divorce, we cannot open, the decree as to the one, while sustaining it as to the other. The judgment will be reversed, and the case remanded with instructions to overrule the application to set aside the decree and let the defendant in to defend. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: This was an action in the nature of an action of trespass, brought by Lawrence Townsend against Marion Spahr, S. J. Williams, and W. L. Parsons, for an alleged assault and battery. The petition alleged among other things, that “ the said defendants did unlawfully and with force assault the said plaintiff, and there shoot and wound with shot from and out of a shot-gun held in the hands of the said defendant Marion Spahr.” The answer was a general denial. Williams and Parsons had a separate trial, and on such trial the plaintiff introduced evidence, over the objections of the defendants, but with the permission of the court, to prove that Spahr, with the cooperation of Williams and Parsons, was illegally, and in violation of a certain statute, (Laws of 1872, page 339,) hunting on the inclosed lands of another, without the consent of the owner, and that while so hunting, Spahr, in the absence, of Williams and Parsons, and without their knowledge, shot with a shot-gun at a prairie chicken, and in doing so accidentally shot the plaintiff and injured him. Ve think this evidence was admissible, and that the court below did not err in allowing it to be introduced. The jury made special findings; and the findings of the jury and the judgment of the court were in favor of the plaintiff, and against the defendants. The defendants (plaintiffs in error) now claim that the findings of the jury are not sustained by sufficient evidence, and that the findings themselves are not sufficient to sustain the judgment of the court below. That the evidence sufficiently shows that Spahr is liable, we suppose will be admitted. But it is claimed that the evidence does not sufficiently show that Williams and Parsons cooperated with Spahr in his illegal hunting. It is true, the evidence is slight, and we think the jury erred in their findings. But still the question of cooperation is one of fact, and- comes clearly within the province of the jury to determine; and unless there was almost a total absence of evidence to prove cooperation, their verdict upon the question must, after its approval by the court below, be considered conclusive. This comes from an unbroken current of decisions previously rendered in this court upon the question whether this court will reverse the judgment of the district court because the verdict of the jury may seem to be against the evidence, or not sustained by sufficient evidence. We have sustained many judgments where the verdicts upon which they were founded were sustained by but very slight evidence, or were against the weight of the evidence. There was some evidence in this case to prove cooperation. It is unquestionably the duty of the district court to set aside a verdict and grant a new trial wherever the jury have manifestly mistaken the evidence. And the district courts cannot shirk their responsibility by saying that the jury are the exclusive judges of all questions of fact. For, while this is true as long as the jury have the case under their consideration, yet, when the jury have rendered their verdict, then the judge himself becomes the exclusive judge of all questions of fact; and, while he cannot reform the verdict, nor modify it in any particular, nor set it aside if it is sustained by sufficient evidence and by a preponderance of the evidence, yet, if the verdict is manifestly erroneous he should always set it aside and grant a new trial. And he must be controlled by his own judgment in the case, and not by that of the jury. Now the supreme court, under the decisions of this court, has no such authority. When the supreme court sets aside a verdict, it must also set aside the judgment. It must say, that the judge of the district court, as well as the jury, committed an error; it must say, that the-judge of the district court manifestly abused his discretion by not setting aside the verdict of the jury. And the supreme court can seldom say this. And hence, the supreme, court can reverse a judgment because the verdict is not sustained by sufficient evidence only where there is substantially a total lack of evidence to prove some material fact necessary to be found, and necessarily found by the verdict. The findings of the jury in the case at bar seem to sustain the judgment of the court below. But they have not all'been brought to this court, and hence we cannot tell to a certainty. The eighth and ninth and tenth findings, are not contained in the verdict. The judgment of the court below must be affirmed. Kingman, C. J., concurs.
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The opinion of the court was delivered by Brewer, J.: In the winter of 1871-2 the defendants in error obtained judgment against the plaintiff in error before one Frank Wise, a justice of the peace of Sumner county. Winsor was absent from the county at the time of the commencement of the action, and of the judgment, and for more than ten days thereafter. Service was made at his usual place of residence. Upon his return-he took the judgment up on petition in error, it being too late for an appeal. Both the district and this court affirmed the judgment, there appearing no error in the record. Winsor v. Goddard, 10 Kas. 625. Thereupon he commenced this action, seeking to have the judgment vacated on the ground that it was obtained by fraud on the part of the Goddards, and through unavoidable casualty and misfortune on his part. The district court, before whom the case was tried, found that there was no fraud on the part of the Goddards, and no unavoidable casualty on his part. He now alleges error. As to the charge of fraud, there is a manifest want of harmony between the testimony on the two sides. The contradiction is so strong and decided, as scarcely to be explainable upon any theory of the imperfections of memory. It is more than probable that one side or the other has willfully trespassed on the truth. The district court, with that contradiction before it, found that the charge of fraud was not made out. "We cannot, under well-settled rules, reverse that finding. It is supported by clear and positive testimony. The district court found that there was no unavoidable casualty or misfortune by which Winsor was prevented from defending before the justice. It appeared that Winsor left home on the 20th of December to go to Miami county, and did not return until the 21st qf January. He was detained a week at Leroy, by sickness. This was, as he was going from his home to Miami county. He claims to have told one of the Goddards, before he left, that he intended to go and be absent ten or twelve days. ’ On the 23d of December suit was commenced before the justice. The return-day was the 27th. On that day the plaintiffs appeared, but the defendant not appearing, the justice of his own motion continued the case to the 4th of January. Then the defendant still failing to appear, the judgment was taken. Winsor left his family at home. His family consisted of a wife and eight children, the oldest son being then twenty-one years of age. It does not appear that any effort was made by any of them either to postpone, or defend the action, to take an appeal, or communicate to Winsor news of what was taking place. No other explanation is given of Winsor’s absence than the week’s detention by sickness. He says he was “ otherwise detained.” But whether by business, pleasure, or the difficulties of travel, we are not informed. Indeed for aught that appears, the whole trip of Winsor may have been merely for pleasure. Under those circumstances we cannot say that there was any error in the. finding of the district court that there was no unavoidable casualty or misfortune which prevented him from defending. As to the question whether the justice could enter a judgment “by default,” upon the bill of particulars, it appears upon the face of the record, and should have been raised on the proceedings in error. It is not now a proper matter for consideration. We do not however mean to be understood as holding that the record carries with it necessarily the idea of a judgment rendered without any testimony, but simply that whatever of question there máy be should then have been raised. The judgment must therefore be affirmed. The case of Winsor v. Cole is similar, and the same order will there be entered. All the Justices concurring.
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The opinion of the court was delivered by Brewer, J.: This was an action brought to restrain the defendant from leasing its school-building for other than school purposes. Two questions are raised. First, does the plaintiff show such a peculiar and personal interest as will enable him to maintain the action ? and second, do the facts alleged disclose grounds for the relief sought?' The plaintiff alleges that “he,is a resident of the school-district, and taxpayer therein, and as such taxpayer has contributed his proportion of taxes for the building of the said school-house; that his children attend school therein, and that by the improper uses of the building complained of, the books of his children are torn, soiled, carried away, lost and misplaced; their copy-books written on, or thrown to the floor; their slates and pens broken; their inkstands upset, and their paper wasted and destroyed.” We think this shows such an iuterest as entitles him to a hearing upon the question of the alleged misuser of the school-house. When he pays his taxes, he passes over so much money into the public fund, and the disposition of it is a public duty intrusted to certain public agents; and the fact that he has contributed by the payment of taxes to the creation of this public fund, does not give him a right to challenge the manner of. its use. Craft v. Jackson Co., 5 Kas. 518. He is but one of many contributors to the same fund. He has no personal interest in it. But here he shows that his own private property suffers from the alleged wrongdoings. The school books, etc., which he purchases for his children’s use are his individual property. They belong in no sense to the public, and though they may be but a few dollars in value he is entitled to have those few dollars protected as fully as though thousands of dollars were in danger. As misuser, he alleges that the “school-house is, by the order of the directors, leased and let to divers societies, meetings, and gatherings,” and that thereby large assemblages of persons, both children and adults, gather there, crowding the seats and desks; that these assemblages consume the fuel purchased with the public funds, tear q^g from their fastenings, and cut, scratch and deface them; that some of these meetings are in the night-time, and that at such meetings kerosene or coal oil is used, which is in violation of the terms of the insurance policy on the building, the premium of which has been paid out of the public funds; and that to accommodate one of these societies the building has been altered by erecting platforms, rostrums, closets, boxes, etc. In short, he alleges that this building, erected by public funds for the purpose of a schoolhouse, is, by the order of the directors, used for a variety of purposes and gatherings wholly alien to schools and educational matters. It does not appear that this is done against the wishes or without the consent of a majority of the taxpayers and electors of the district, nor that the building is leased without receiving adequate rent. Indeed, the question as it comes before us, may fairly be thus stated: May the majority of the taxpayers and electors in a school-district, for other than school purposes use or permit the use of the school-house built with funds raised by taxation? The question is one which in view of the times, and the attacks made in so many places, and from so many directions, upon our public-school system, justifies, as it has received at our hands, most serious consideration. We are fully aware of the fact, that all over the state the school-house is, by general consent, or at least without active opposition, used for a variety of purposes other than the holding of public schools. Sabbath schools of separate religious denominations, church assemblies, sometimes political meetings, social gatherings, etc., are held there. Now none of these can be strictly considered among the purposes for which a public building can be erected, or taxation employed. But it often happens, particularly in our newer settlements, that there is no other public building than the school-house — no place so convenient as that. The use for these purposes works little damage. It is used by the inhabitants of the district whose money has built it, and used for their profit or pleasure. Shall it be said that this is illegal? Doubtless, if all in'the district are content, no question will ever be raised; and on the other hand if a majority object, the use for such purposes will cease. It is only when the majority favor, and a minority object, that the courts are appealed to. That minority may be but a single individual, may be influenced by spite, or revenge, or any other unworthy motive ; but whatever the motives which prompt the litigation, the decision must be in harmony with the absolute right of all. It seems to us that upon well-settled principles the question must be answered in the negative. The public school-house cannot be used for any private purposes. The argument is a short one. Taxation is invoked to raise funds to erect the building; but taxation is illegitimate to providé for any private purpose. Taxation will not lie to raise funds to build a place for a religious society, a political society, of a social club. What cannot be done directly, cannot be done indirectly. As you may not levy taxes to build a church, no more may you levy taxes to build a school-house and then lease it for a church. Nor is 'it an answer to say that its use for school purposes is not interfered with, and that the use for the other purposes works little, perhaps no immediately-perceptible injury to the building, and results in the receipt of immediate pecuniary benefit. The extent of the injury or benefit is something into which courts will not inquire. The character of the use, is the only legitimate question. A municipal bond of five cents, in aid of a purely private purpose, is as void as one of a thousand dollars, and that too though the actual benefit to the municipality far exceeds the amount of the bond. The use of a public school-house for a single religious or political gathering, is, legally, as unauthorized as its constant use therefor. True, a court of equity would not interfere by injunction after a single use, and' where there was no likelihood of a repetition of the wrong, for it is only apprehended wrongs that equity will enjoin. Here the unauthorized use is charged as a frequent fact, and one likely to occur hereafter. It is unnecessary to pursue this discussion further, for it would be simply traveling over a road already well worn and dusty. Besides the authorities with which every lawyer is familiar, upon the power to use public funds or property for private purposes," we refer to the following as bearing upon the special phase of the question before us: Scofield v. Eighth Sch.Dist., 27 Conn. 499; School District No. 8 v. Arnold, 21 Wis. 657. The judgment of the district court will be reversed, and the case remanded for further proceedings in accordance with the views herein expressed. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: This petition in error is prosecuted in this court for the purpose of reversing an order of the district court of Cowley county, overruling a motion of the plaintiff in error to set-aside a sheriff sale. On the 27th of October 1873 said district court rendered two judgments in an action in which Swain was plaintiff and Tarrant was defendant. The first judgment was, that Tarrant should pay to Swain, on or before December 31st 1873, $452.63, and that Swain should then convey to Tarrant the undivided-half of Lot 11 in Block 129 in the city of Winfield, Cowley county. The other judgment was in favor of Swain and against Tarrant for $226.71. This second judgment was merely a personal judgment, and had no connection whatever with said lot. Ever since and before said judgments were rendered, Tar-rant and his family have resided on said lot, claiming the same as their homestead. On November 19th 1873 an execution was issued on said second judgment, and levied, December 17th 1873, on the undivided-half of said lot. Tarrant paid to Swain the amount required by said first-mentioned judgment within the time prescribed by the judgment; an<j the said Swain conveyed to said Tarrant by his deed of quitclaim said property, as required by said decree, on the 1st of January 1874. On February 9th 1874 said property was sold at sheriff sale on said execution, and this is the sale now in controversy. We suppose the only question involved in this case is, whether said property was exempt from said execution and sale by virtue of the homestead-exemption laws. We think it was. Both parties admit, and in fact claim, that at the time said judgments were rendered, and at the time said execution was issued and levied, Tarrant had an equitable interest in said property. Tarrant claims that this equitable interest was sufficient to uphold his homestead claim, and Swain claims that it was sufficient to uphold the levy of said execution. We think it was sufficient to uphold either, in the absence of the other; and as the homestead claim is prior in time to the levy of said execution, and indeed prior in time to the rendering of the judgment upon which said execution was issued, it is prior in right, and paramount to any claim founded upon said execution. If Tarrant’s equitable interest in said property was sufficient to uphold the levy of the execution, we know of no good reason why it should not be considered sufficient to uphold the homestead claim; and if it was not sufficient to uphold the levy, then manifestly the sale of the property should have been set aside. That an equitable interest in real estate, or an interest less than a freehold, will uphold a homestead interest, see McKee v. Wilcox, 11 Mich. 358; Pelau v. DeBevard, 13 Iowa, 53; McCabe v. Mazzuchelli, 13 Wis. 478; Blue v. Blue, 38 Ill. 9; Conklin v. Foster, 57 Ill. 104. But it is claimed that Tarrant owns only the undivided-half of said lot, and that such an interest in property is insufficient to uphold a homestead claim. We can perceive no good reason why this should be so under our broad and comprehensive homestead provisions. (Thorn v. Thorn, 14 Iowa, 49; McClary v. Bixby, 36 Vt. 254.) The laws however of the various states upon this subject differ, and several decisions may be found on the other side of the question. Of course, a tenant in common can obtain no such homestead interest as will interfere with the rights or interests of his co-tenant, or any person rightfully holding under his co-tenant. But this is probably the only limitation upon his acquiring a homestead interest in such property. Third parties cannot say that, because a tenant in common cannot obtain such a homestead interest as will defeat or destroy the interest of his co-tenant, that therefore he cannot obtain any homestead ■ interest at all. Neither can his co-tenant question his right to acquire a homestead interest in the property, so long as such co-tenant is allowed to enjoy all his rights and privileges in and to said property as a co-tenant. There is a vast difference between holding property as tenants in common, and holding it as coparceners. Each co-tenant has a known, absolute, fixed, and determinate individual interest in the property. No coparcener has any such interest. In estates in coparcenary the whole of the property belongs to the coparceners jointly, as an aggregate and individual entity. It is like the property of a copartnership, no member of which has any specific interest in any article of property belonging to the copartnership. His interest is merely to share in the profit, or profit and loss, and receive dividends made from time to time, and at the final closing-up of the copartnership; and he really has no interest as an individual in any specific article of the property belonging to the copartnership. The order of the court below will be reversed, and cause remanded for further proceedings. All the Justices concurring.
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The opinion of the court was delivered by Valentine, J.: This was an action of replevin, brought by Mary A. Shellabarger against John H. Nafus. It appears from the record that the defendant was a constable; that he held an execution against the property of the plaintiff’s husband, one Solomon Shellabarger; that the constable levied said execution upon the property in controversy, as the prop erty of the plaintiff’s husband; that the plaintiff then replevied the property, claiming the same as hers, and claiming that it never did belong to her husband. When the constable levied on said property he found it on land occupied by the plaintiff and her husband as their homestead, the title to which land was in her husband. But the property was not in the. actual possession of either. It had been in the actual custody of the husband, but it does not appear from the record that it was ever in the actual custody of the plaintiff. The whole case in the court below depended entirely upon who owned the property. All other questions were merely incidental or subsidiary to that. If the plaintiff owned the property, she had a right to recover, however good the execution may have been. But if her husband owned it, then she had no right to recover, however worthless the execution may have been. If her husband owned the property, and the constable for any cause obtained it wrongfully from him, then no person but her husband had any right to sue. A wife has never been recognized as the legal guardian of her husband to such an unlimited extent that she may protect his legal rights by herself becoming the plaintiff, and prosecuting the action for him in her own name. We mention this, merely because it seems to be claimed that, if the defendant failed to prove that the execution was founded on a valid judgment, by the introduction in evidence of the record of such judgment, that the plaintiff must then recover, although the property might at the time the execution was levied have belonged to her husband, and not to herself. A vast number of objections were made, and a vast number of exceptions taken by the plaintiff in the court below. And a large number of questions have been raised and discussed in this court; but with the exception of the errors hereinafter mentioned, we think the court below committed no substantial error. As before stated, the main question in the case in the court below was, who owned the property in controversy? With reference to ownership, the court below instructed the jury as follows: “The court instructs the jury, that if they believe from the evidence, that the plaintiff in this case was a married woman, and was at the tipie of bringing this suit and for some time prior thereto, then the jury must be satisfied from the evidence, that the property in controversy in this case was' owned by her at the time of her marriage, or is the proceeds or fruit of property so owned, or has come to her by descent, devise or bequest from some person other than her husband, or was the fruit of her earnings from her separate trade or business. If the jury should not be satisfied from the evidence of the existence of any of the foregoing propositions, then you should find for the defendant.” Now the foregoing instruction is not correct, as an abstract proposition of law; nor is it correct as applied to this case. If the property in controversy was a gift to the plaintiff from any person except her husband, or if it was the proceeds, issues, or profits of any such gift, or if it was the proceeds, issues, or profits of any property which had previously come to her by descent, devise, or bequest, it would certainly be her own separate property, and be exempt from any execution issued against her husband’s property. Indeed, if she had stolen it, and then claimed it as her own, we think she would have been the owner thereof as against all the world except the real owner. According to the plaintiff’s testimony, she has owned property and been buying, selling, and trafficking in property for several years. Some of her property came to her from her father’s estate, some from her own earnings, some from the proceeds, issues, and profits of other property, and the source of some of it was not shown. The property in controversy was purchased, as the plaintiff testifies, with her own money; but where she got the money is not very definitely shown. From anything that appears in the record, the greater portion of it may have been a gift, or the proceeds of a gift from some person other than her husband. But however it may Have come, she testifies positively that the money was hers. "Whether it was hers or not, was a fact for the jury; and if the case had been submitted to the jury on proper instructions, we think the verdict would have been conclusive. But as the foregoing instruction was erroneous, and prejudicial to the rights of the plaintiff, and as the verdict and judgment were against the plaintiff, we think the judgment of the court below must be reversed, and a new trial granted. There is another question raised in this case; and as the case must be sent back to the court below for a new trial, upon the grounds heretofore mentioned, we think this is as good a time as we shall ever have to present our views upon this other question. The court below also instructed the jury as follows: “ If you should be satisfied that any witness in this case has willfully and corruptly testified falsely to any material fact, then it is your duty to disregard the whole of the testimony of such witness.” Under this instruction the jury evidently disregarded the testimony of the plaintiff. This instruction is fully warranted by the decisions of this court. (See Campbell v. The State, 3 Kas. 488; Hále v. Rawallie, 8 Kas. 136; The State v. Horne, 9 Kas. 131; Russell v. The State, 11 Kas. 322, 323; Gannon v. Stevens, 13 Kas. 461.) And yet we think the instruction is erroneous: Mead v. McGraw, 19 Ohio St. 55, 64; State v.Williams, 2 Jones Law (N. C.) 257, 262; Mercer v. Wright, 3 Wis. 568, 570; Knowles v. The People, 15 Mich. 408; Fisher v. The People, 20 Mich. 147; Lewis v. Hodgdon, 17 Maine, 267, 273; Blanchard v. Pratt, 37 Ill. 243, 246; State v. Stout, 31 Mo. 406; Callahan v. Shaw, 24 Iowa, 441. Whether the jury should disregard the whole of the testimony of a witness in such a case, is a matter resting entirely with them. They are the exclusive judges of the credibility of the witnesses, and the weight of their testimony. They may wholly disregard the testimony of any witness, if from the evidence before them they consider such witness as wholly unworthy of credit. Or they may disregard a portion of the testimony of any witness, and give to every other portion full faith, credit, and consideration. Or they may give to one portion of the testimony of any witness greater weight and credit than they may to some other portion of such testimony. The jury ought to be al lowed to weigh every portion of the testimony of 'every witness, and to give to each portion of the testimony just such consideration as it is entitled to, considering all the facts and circumstances of the case. It is within the common experience of all men, that the different portions of the testimony of the same witness may differ vastly in value. A witness may, under great temptations, and in some isolated case, swear falsely, and yet where the temptation is removed, where there is nothing to operate on his hopes and fears, his passions and prejudices, where he has no interest in the matter except to tell the truth, his testimony may be' of great value. And this being so, no inflexible rule of law should be interposed between the witness and the jury, commanding the jury to take all, or to exclude all, of his testimony. So far as the decision made by this court in case of Campbell v. The State, 3 Kas. 488, and the decisions in such other cases as follow that case, are in conflict with the foregoing views, said cases are overruled. . The judgment of the court below will be reversed, and cause remanded for a new trial. All the Justices concurring.
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Arnold-Burger, J.: In order to receive workers compensation benefits, a claimant must show that his or her accidental injury arose out of and in the course of employment. See K.S.A. 2010 Supp. 44-501(a). However, an accident is not considered to be arising out of and in the course of employment if it occurs while the employee is on the way to assume the duties of employment or after leaving such duties. K.S.A. 2010 Supp. 44-508(f). Roy Dean Craig was injured on his way home from a temporary work location for Val Energy, Inc. The Workers Compensation Board (the Board) determined that Craig’s injuiy arose out of and in the course of his employment based on the fact that he was reimbursed for mileage, he was responsible for transporting his crew to and from the job site, he would not have been hired if he did not have the capability to drive and transport his crew, and he received a per diem reimbursement. Val Energy, Inc. and Liberty Mutual Insurance Co., of America (Val Energy) appeal the Board’s decision arguing that Craig was on his way home from employment and recovery is barred by the going-and-coming rule outlined at K.S.A. 2010 Supp. 44-508(f). Because the Board did not erroneously interpret the law or misapply the law to the facts, we affirm. Factual and Procedural History Craig was a driller employed by Val Energy and was responsible for his own crew. Craig was required to pick up each member of his crew and drive them to the oil rig site. Craig used his personal vehicle to drive to and from each crew member’s house and ultimately to the oil rig site and back home. Val Energy reimbursed Craig for the mileage. On July 27, 2007, Craig was working for Val Energy. In the morning, Craig picked up his son, who was also part of his crew. However, because the “draw works” for the particular oil rig that Craig was working on was broken, Val Energy sent Craig and his crew to the Val Energy shop in order fix the “draw works.” Val Energy still paid Craig mileage for the trips he made between his home, his crew members’ houses, the shop, and back home. Working at the shop was only a temporary position. After leaving the shop, while driving home, Craig and his crew member were involved in a one vehicle automobile accident. Craig was injured. The administrative law judge (ALJ) denied Craig’s claim finding that Craig’s injury did not arise out of and in the course of his employment because his injury was not covered by any of the exceptions to the going-and-coming rule found under K.S.A. 2010 Supp. 44-508(f). In addition, the ALJ indicated that because the inherent travel exception to the going-and-coming rule was judicially created and not explicitly set out in the statute, it was no longer viable after our Supreme Court’s ruling in Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 214 P.3d 676 (2009). Craig filed an application for review of the ALJ’s decision. The Board reversed the ALJ’s decision that Craig’s injury did not fall under the inherent travel exception to the going-and-coming rule, and also determined that Bergstrom did not contemplate K.S.A. 2010 Supp. 44-508(f) nor did Bergstrom overrule any cases that applied the inherent travel exception to the going-and- coming rule. Val Energy appeals the Board’s decision. Standard of Review The facts are not in dispute. When an appellant alleges the Board erroneously applied the law to undisputed facts, an appellate court has de novo review of the issue. Tyler v. Goodyear Tire & Rubber Co., 43 Kan. App. 2d 386, 388, 224 P.3d 1197 (2010); see generally K.S.A. 2010 Supp. 77-621(c)(4) (court has authority to grant relief if agency has erroneously interpreted or applied tire law). This particular issue also requires this court to review and interpret K.S.A. 2010 Supp. 44-508(f). Appellate courts have unlimited review of questions involving the interpretation or construction of a statute, owing “ ‘[n]o significant deference’ ” to the agency’s or the Board’s interpretation or construction. Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs, 290 Kan. 446, 457, 228 P.3d 403 (2010). Analysis We review the inherent travel exception to the going-and-coming rule under K.S.A. 2010 Supp. 44508(f). In order to receive workers compensation benefits, a claimant must show that his or her accidental injury arose out of and in the course of employment. See K.S.A. 2010 Supp. 44-501(a). However, an accident is not considered to arise out of and in the course of employment if it occurs while the employee is on the way to assume the duties of employment or after leaving such duties. K.S.A. 2010 Supp. 44-508(f). This is referred to as the going-and-coming rule. The rationale for the going-and-coming rule is based on the premise that, “while on the way to or from work, die employee is subjected only to the same risks or hazards as diose to which the general public is subjected. Therefore, such risks are not causally related to the employment. [Citation omitted.]” Sumner v. Meier's Ready Mix, Inc., 282 Kan. 283, 289, 144 P.3d 668 (2006). Consequently, an employee should be denied compensation if his or her injury falls within the going-and-coming rule. 282 Kan. at 289. Whether the going-and-coming rule applies is reviewed on a case-by-case basis. Messenger v. Sage Drilling Co., 9 Kan. App. 2d 435, 438, 680 P.2d 556, rev. denied 235 Kan. 1042 (1984). The statute goes on to list a few exceptions to the going-and-coming rule, none of which are applicable here. Compensation may be allowed if the worker is (1) on the premises of the employer; (2) on the only available route to or from work which is a route involving a special risk or hazard and which is a route not used by the public except in dealings with the employer; or (3) is a provider of emergency services responding to an emergency. K.S.A. 2010 Supp. 44-508(f). In addition, Kansas courts have recognized what has been described as a judicially created exception to the rule. “[Wjhen the operation of a motor vehicle on tire public roadways is an integral part of the employment or is inherent in the nature of the employment or is necessary to the employment, so that in his travels the employee was furthering the interests of his employer” the going-and-coming rule does not apply. Messenger, 9 Kan. App. 2d at 437. This has been referred to as the “inherent travel” exception. However, referring to the concept of inherent travel as an exception to the going-and-coming rule is a misnomer. As Judge Leben pointed out in his concurring opinion in Halford v. Nowak Construction Co., 39 Kan. App. 2d 935, 942, 186 P.3d 206, rev. denied 287 Kan. 765 (2008): “[T]he exception to the ‘going and coming rule’ for travel that is intrinsic to the job is firmly rooted in the statutory language, even though many cases have referred to it as a judicially created exception. The statute provides that a worker is not covered while the employee is on the way to assume the duties of employment.’ K.S.A. 44-508(f). Where travel is truly an intrinsic part of the job, the employee has already assumed the duties of employment once he or she heads out for die day’s work. Thus, the employee is no longer ‘on the way to assume the duties of employment’' — he or she has already begun the essential tasks of the job. Such an employee is covered by the Workers Compensation Act and is not excluded from coverage by die ‘going and coming rule.’ ” (Leben, J., concurring). In other words, while many of the cases from our appellate courts discuss inherent travel as an exception to the going-and-coming rule, it appears the analysis is really whether travel has become a required part of the job such that the employee actually assumes the duties of employment from the moment he or she leaves the house and continues to fulfill the duties of employment until he or she arrives home at the end of the workday. See, e.g., Sumner, 282 Kan. at 289; Messenger, 9 Kan. App. 2d at 437. In Sumner, our Supreme Court pointed out that when travel becomes an intrinsic part of the job it is an element of employment. 282 Kan. at 289. And in one of the most cited cases on the topic, Messenger, we held that because travel can be an essential part of employment since the traveling furthers the purposes of the employer, it arises out of within the scope of the employment. 9 Kan. App. 2d at 437. So there was no need to discuss the possibility of an exception because the particular facts of each case as applied to K.S.A. 2010 Supp. 44-508(f) either placed the claimant within the timeframe that he or she had already assumed the duties of employment in order to grant compensation or placed the claimant outside of the duties of employment so as to deny compensation. See Estate of Soupene v. Lignitz, 265 Kan. 217, 223-25, 960 P.2d 205 (1998); Bell v. Allison Drilling Co., 175 Kan. 441, 264 P.2d 1069 (1953); Blair v. Shaw, 171 Kan. 524, 233 P.2d 731 (1951). In summary, a review of the caselaw surrounding the going-and-coming rule in Kansas reveals that the inherent travel exception to the going-and-coming rule is not an exception to K.S.A. 2010 Supp. 44-508(f) at all, but a method to determine whether an employee has already assumed the duties of employment when he or she is going to or returning from work. The issue is the applicability of the going-and-coming rule based on the specific facts of the case, not whether the facts establish an exception to the rule. Although this may appear to be a distinction without a difference, it does make a difference when determining whether, as Val Energy argues, a judicially created exception to the statute has been established in contradiction of clear statutory language which is contrary to our Supreme Court’s decision in Bergstrom, 289 Kan. 605. We find that no such judicially created exception has been adopted inconsistent with the clear language of the statute. The determination of whether an employee has already assumed the duties of employment while going to and coming from the work location, based upon the unique facts of each case, is consistent with the clear statutory language of K.S.A. 2010 Supp. 44-508(f). Application of the going-and-coming rule to the facts of this case Val Energy asserts that the Board was incorrect when it determined that the going- and-coming rule under K.S.A. 2010 Supp. 44-508(f) did not serve as a bar to Craig’s workers compensation claim. Val Energy contends that Craig was traveling home from Val Energy’s shop, a fixed location, and that Craig’s trip home did not involve any special work related errand. Val Energy attempts to show the distinguishing factors between the present case and Messenger, but it also relies heavily on Butera v. Fluor Daniel Constr. Corp., 28 Kan. App. 2d 542, 18 P.3d 278, rev. denied 271 Kan. 1035 (2001), both of which analyzed the going-and-coming rule. We will examine both cases. In Messenger, our court looked to several factors in making its decision. The first factor was whether commuting long distances was required in the job itself. Another factor was whether the employer had a permanent work location. 9 Kan. App. 2d at 438-39. In addition, the court looked at whether the employer seeks employees who would be willing to work at “ ‘mobile sites,’ ” and whether it was customary within tire company to pay the driller to drive, acquire a crew, and provide that crew with transportation. 9 Kan. App. 2d at 439. Moreover, the court focused on whether the employer and the employee procured a mutual benefit from the transportation arrangement. Messenger was a member of an oil rig drilling crew. He was required to provide his own transportation to and from the distant drill site and the company reimbursed him for his mileage. Messenger died in an automobile accident while on his way from the drill site. In Messenger, our court determined that there was substantial competent evidence to support the finding that travel was an inherent part of Messenger’s job. 9 Kan. App. 2d at 435-40. In Butera, at first the claimant was traveling long distances to and from the nuclear power plant, his work site, and that travel was reimbursed by the company. However, at a later date, the claimant made accommodations to stay in a hotel close to his work site. The claimant’s subsequent travel to and from the hotel and the power plant was not reimbursed by the company. In addition, after relocating to the hotel, the claimant was no longer traveling long distances. The court refused to grant compensation because the claimant, at the time of his injury, was at no greater risk than other commuters who were traveling to or from work; there was no benefit to the company once the claimant relocated to the hotel; and the claimant had no special purpose in his commute to and from the hotel. 28 Kan. App. 2d at 546-49. The present case is more akin to Messenger rather than Butera. Craig was a driller who was required to obtain his own crew and to make sure that all crew members made it to the drill site as required. Before his injury, Craig was required to travel with his crew from Pratt, Kansas — his residence — to just south of Medicine Lodge, Kansas, where the drill site was located. Craig was reimbursed his mileage for his travel both to and from work, including picking up and dropping off his crew; he received a per diem reimbursement for showing up; at the end of the job he received an additional $24 per day for every crew member that showed up; and he would not have been hired if he did not have the capability to drive and transport his crew. In addition, he was the only crew member to receive mileage reimbursement, and, as crew chief, his job was to make sure a crew was present to work. On the day of Craig’s injury, and the 4 days prior to his injury, Craig was assigned to work in Great Bend, Kansas, because the oil rig required for drilling at his drill site had broken down. Craig had been required by Val Energy to work from its shop in order to get the oil rig up and running again. Craig was reimbursed for his travel from Pratt to Great Bend including mileage involved in picking up his crew. On the day of his injury, Craig picked up and transported one member of his crew to and from the shop. In addition, Craig testified that his work at the shop was only temporary until the oil rig was fixed. It appears that the only differences between the present case and Messenger is that Craig, at the time of his injury, was traveling a shorter distance than usual, and, instead of traveling to and from a drill site, he was traveling to and from Val Energy’s shop. The similarities seem to outweigh the differences. The similarities include: (1) Val Energy continued to reimburse Craig for his travel despite the change in work site; (2) there was no permanent work site to which Craig was traveling because as soon as the oil rig was fixed he would have returned to the drill site; (3) Craig still continued to transport at least one member of his crew to and from the shop; and (4) despite the temporary change in location, it still appeared that Val Energy and Craig received a mutual benefit from the continued transportation arrangement. Because the present case is factually similar to Messenger, we find it to be persuasive. The Board did not err when it determined drat the going-and-coming rule did not apply to the facts of this case. Affirmed.
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Pierron, J.: The City of Lincoln Center (City) appeals the district court’s decision finding the City’s noise and nuisance ordinances were unconstitutionally vague. Charges filed against Farm-way Co-Op, Inc., and Farmway Storage #1, LLC (collectively Farmway), under the ordinances were dismissed. The City argues the ordinances are not vague and constitute a valid exercise of the City’s police power. We affirm the district court’s decision. With some minor disagreements, the parties really do not dispute the facts. This case involves legal questions concerning the constitutionality óf nuisance ordinances. Farmway owns and operates a grain elevator located within the City of Lincoln Center. Lincoln Center is a small rural farming community in central Kansas. The neighborhood surrounding the Farmway elevator is residential. In December 2008, Farmway applied for a building permit to construct a new grain storage bin adjacent to the existing facility. The letter of application stated: “This structure will be 74' in diameter and 124' tall with 12" thick reinforced concrete walls. The above structure is being built for Farmway Storage LLC. #1 which is a producer financed grain storage structure with Farmway Coop, Inc. adding all machinery and related components. We seek to obtain a building permit to start construction of this $1,502,000 project that will give much needed grain storage to our Lincoln Branch. As I mentioned this is a farmer/producer joint venture that will bring rewards to every grain producer in the Lincoln area. The structure is to be built of existing property that includes all of blocks 8 and 9 minus lots 1 and 2 in the McFarland Park Addition. I have not included the permit fees as I am unsure of these costs at this time. We hope this project will be a great addition to the City of Lincoln and the producers in the area and also help control some dust and noise concerns for the neighborhood. If approved we plan to proceed with this project and have it completed before July of 2009. Your help in this matter would be greatly appreciated.” After the City granted Farmway a construction permit, Farmway constructed tire new grain bin and it went into operation on July 14, 2009. From that day forward, nearby residents complained about the increased noise level from the aeration drying fans and the increased grain dust and truck dust in the air. On July 27,2009, Dawn and Melvin Harlow filed a noise complaint against Farmway. The Harlows described the increased noise levels from the new grain bin and its effect on their everyday life. Alan and Karen Hunter explained how their yard and vehicles were covered with grain dust, their increased health problems, and how the new fans on the grain bin sounded like a jet engine. T.J. Jonsson explained how the increased grain dust caused severe reactions to his son who suffered from wheat and milo dust allergies. Jonsson started a petition drive in 2010 to encourage local leaders to oppose any further Farmway expansion and to correct what he described as public nuisances. The petition was signed by 51 people. Farmway is a voluntary participant in the OSHA 21-D program administered by the Kansas Department of Labor (KDOL), a free service in which employee health and safety consulting is provided to participants. Farmway requested a consultation visit for the purpose of determining its compliance with employee safety regulations regarding noise and air contaminates at its Lincoln Center elevator facility. Helen Cook, a certified industrial hygienist with KDOL, made two scheduled visits to the facility — February 25 and March 15, 2010. She measured noise levels around the perimeter of the elevator facility at less than 80 decibels, which does not present an employee health concern. She conducted air sampling for particulates and silica, and no employee overexposure was indicated. In response to the complaints of excessive noise and dust, Stan Marshall, Air Quality Representative for the Kansas Department of Health and Environment (KDHE), made two unannounced visits to the Farmway elevator, one on January 29, 2009 (prior to the expansion) and one on December 2, 2009 (after the expansion). Each of the visits lasted 30-40 minutes. The dust testing method applicable for the Farmway facility is an opacity reading, which measures tire percentage of sunlight being blocked by any emissions. On both visits, the Farmway facility tested well within applicable limits and there were no violations reported. On December 9, 2009, the City charged Farmway with violating City ordinances regarding excessive loud noises and nuisances. Count I of the City’s complaint alleged that between July 16, 2009, and December 3, 2009, Farmway willfully, unlawfully, and intentionally did “malee, continue, maintain or cause to be made or continue an excessive, unnecessary, unreasonable or unusually loud noise which annoys, disrupts, injures or endangers the comfort, repose, health, peace or safety of others within the City of Lincoln Center, Lincoln County, Kansas, in violation of ordinance #643.” Count II of the City’s complaint alleged that between July 16, 2009, and December 3, 2009, Farmway willfully, unlawfully, and intentionally did “maintain a public nuisance by act or failure to perform a legal duty intentionally causing or permitting a condition to exist which injures or endangers the public health, safety, or welfare, namely the excessive, unnecessary, unreasonable or unusually loud noise, and by causing or permitting excessive air pollution and contamination from grain dust all generated by, for or from the new concrete grain storage bin facility.” located in the City of Lincoln Center, Lincoln County, Kansas, in violation of Sections 9.5 and 9.6 of the Uniform Public Offense Code for Kansas Cities edition of 1999, adopted by ordinance #633. After a full trial, tire municipal court found Farmway guilty on both counts. Each defendant was ordered to pay a fine of $100 on Count I and a fine of $300 on Count II. Costs in the amount of $66 were assessed jointly and severally against the defendants. Farmway timely appealed the convictions to district court and then promptly filed a motion to dismiss the charges, arguing the ordinances were void for vagueness. The district court granted the motion to dismiss finding as follows: “The City’s ordinance provides that if a noise ‘annoys, disrupts ... others within the City’ then a violation of the ordinance exists. This language of the ordinance fails to provide an objective standard. There is no guarantee the complainant has reasonable grounds to complain of the noise and there is no accounting for the individual sensibilities of the complainant. The City’s ordinance, unlike the Wichita ordinance which utilized the standard of ‘any person of reasonable sensibilities,’ leaves the door open to arbitrary and discriminatory enforcement. Accordingly, the City’s Ordinance No. 643 is void for being unconstitutionally vague. “An ordinance which proclaims to prohibit any act or failure to act that intentionally causes or permits a condition to exist which injures or endangers the public health, safety or welfare does not appear sufficiently definite or specific to provide fair warning of prohibited conduct. What is the prohibited conduct? The answer is any act that ‘injures or endangers the public health, safety or welfare.’ The answer is so vague and indefinite that it fails to warn. “The City’s nuisance ordinances also fail to guard against arbitrary and discriminatory enforcement. The ordinances provide no guidelines or constraints on those that enforce it. One must guess at the meaning of these ordinances and its application may depend upon those attempting to enforce it. Accordingly, this Court finds that the City’s nuisance ordinances are unconstitutionally vague as they do not put the public on notice of the conduct that is proscribed and do not contain objective standards to prevent arbitrary and discriminatory enforcement.” The City appeals the dismissal of the complaints against Farm-way. Is Lincoln Centers Noise Ordinance Unconstitutionally VagueP The City first argues the district court erred in finding the noise ordinance is unconstitutional and in failing to consider and apply the material differences between the Lincoln noise ordinance and the ordinance found unconstitutional in Luna v. City of Ulysses, 28 Kan. App. 2d 413, 17 P.3d 940 (2000). Whether an ordinance is constitutional presents a question of law over which this court’s review is unlimited. See City of Wichita v. Edwards, 23 Kan. App. 2d 962, 964, 939 P.2d 942 (1997). “The standard for determining whether a statute regulating business is unconstitutionally vague is a common-sense determination of fairness. If an ordinary person exercising common sense can understand and comply with the statute, it is constitutional. Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 243, 834 P.2d 368 (1992). In determining whether an ordinance is void for vagueness, two inquiries are appropriate: (1) whether the ordinance gives fair warning to those persons potentially subject to it and (2) whether the ordinance adequately guards against arbitrary and discriminatory enforcement. State v. Lackey, 232 Kan. 478, 480, 657 P.2d 40 (1983).” Busby, Inc. v. Kansas Dept. of Agriculture, 29 Kan. App. 2d 555, 562, 29 P.3d 441, rev. denied 272 Kan. 1417 (2001). At issue in this case is Ordinance No. 643 of the City of Lincoln Center. It provides in pertinent part: “Section 1. DISTURBING THE PEACE. It is unlawful for any person to make, continue, maintain or cause to be made of continue any excessive, unnecessary, unreasonable or unusually loud noise which either annoys, disrupts, injures or endangers the comfort, repose, health, peace or safety of others within the City.” The general principles and guidelines to be followed in considering the constitutionality of a statute or ordinance have been enumerated many times: “ ‘The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond substantial doubt. The propriety, wisdom, necessity and expediency of legislation are exclusively matters for legislative determination.’ ” City of Wichita v. Lucero, 255 Kan. 437, 442, 874 P.2d 1144 (1994) (quoting Moody v. Board of Shawnee County Comm’rs, 237 Kan. 67, 74, 697 P.2d 1310 [1985]). The City alleges the district court failed to apply the material differences in the ordinance in Luna. Luna was convicted of a violation of the loud noise ordinance of the City of Ulysses, which stated: “ ‘Section 1. Loud Noise Prohibited. It shall be unlawful for any person to make or cause or permit' to be made upon any public or private property including public streets, alleys, thoroughfares or parks, any unnecessarily loud or excessive noise or sound which is physically or mentally annoying or disturbing to another person or persons or which disturbs the peace, quiet; or comfort of another person or persons.’ ” 28 Kan. App. 2d at 413-14. Luna argued the ordinance lacked an objective standard from which to determine what was “loud,” “excessive,” “mentally annoying,” and “disturbing.” 28 Kan. App. 2d at 414. The Court of Appeals agreed with Luna and held: “We conclude tire loud noise ordinance of the City does not give fair warning to those potentially subject to its reach because there are no objective standards imparted. Loaded phrases and words in the ordinance ‘unnecessarily loud,’ ‘excessive,’ ‘mentally annoying,’ and ‘disturbing’ do not provide fair warning to an individual of prohibited conduct. “The ordinance also provides that if the noise is disturbing to ‘another person or persons,’ then the individual responsible for the noise is in violation, regardless if the complainants have reasonable grounds to complain. As was true in Bryan, the absence of an objective standard subjects the defendant to the particular sensibilities of the complainant. The door is left open to arbitrary and discriminatory enforcement of noisy speech, thus, potentially ensnaring constitutionally protected speech.” 28 Kan. App. 2d at 416. ■ In State v. Bryan, 259 Kan. 143, 155, 910 P.2d 212 (1996), as cited in Luna, the court found a portion of the stalking statute (K.S.A. 1994 Supp. 21-3438) unconstitutional because it failed to apply any objective standard in defining the terms “alarms,” “annoys,” and “harasses.” The court noted different people have different sensibilities, and conduct which annoyed or alarmed one person might not annoy or alarm another. If the victim had extraordinary sensibilities, the defendant could be guilty of stalking even though a reasonable person in the same situation would not be alarmed, annoyed, or harassed by the defendant’s conduct. 259 Kan. at 155. In City of Wichita v.. Smith, 31 Kan. App. 2d 837, 75 P.3d 1228 (2003), the defendant music bar owner was convicted of violating the following Wichita city ordinance 7.41.010(a) (2003): “ ‘(a) It is unlawful for any person to make, continue, or allow to be made or continued, any excessive, unnecessary, unusual or loud noise which creates a nuisance or injures or endangers the comfort, repose, health or safety of others, or which interferes with the use or enjoyment of property of any person of reasonable sensibilities residing in or occupying the area unless the making and continuing of such noise is necessary for the protection and preservation of property or the health and safety of some individual.’ ” 31 Kan. App. 2d at 840. Smith argued the language from the city ordinance to describe the volume of the noise as “excessive, unnecessary, unusual or loud noise” was vague and failed to provide fair warning to an individual. Second, Smith argued the ordinance’s reference to a complainant of “reasonable sensibilities” leaves the door open to arbitrary and discriminatory enforcement. The Smith court upheld the conviction and concluded the noise ordinance was not unconstitutionally vague because the ordinance prohibiting loud noise contained the reasonable persons standard without leaving the door open for arbitrary and discriminatory enforcement. The court stated: “The pextinent part of the Wichita ordinance utilizes the standard of‘any person of reasonable sensibilities.’ The existence of the i-easonable person standard in dxe ordinance is a distinguishing factor in this case from Luna. The City cites the decisions of die other jurisdictions which have upheld the constitutionality of similar language in loud noise ordinances. Furdiermore, diis court has upheld the same ordinance as not void for vagueness. City of Wichita v. Martin, Case No. 79,832, unpublished opinion filed December 23, 1999.” 31 Kan. App. 2d at 845. At one end of the constitutional spectrum, we have cases like Luna and Bryan in which the courts found the ordinances constitutionally deficient because of the complete lack of an objective standard. At the other end of the spectrum lies Smith and its expressly stated-objective standard clarifying the ordinance’s application to “ ‘any person of reasonable sensibilities.’ ” Smith, 31 Kan. App. 2d at 840. This case falls somewhere in between Luna and Smith because of the Lincoln ordinance’s use of tire word “unreasonable” in describing one type of loud noise in what appears to be an attempt to create an objective standard. The district court held the inclusion of “unreasonable” in the Lincoln ordinance was not determinative of the issue because the ordinance still failed to provide an objective standard of reasonable grounds to complain of the noise. We agree. The City emphasizes our duty to uphold an ordinance “if there is any reasonable way to construe the ordinance as constitutionally valid.” City of Wichita v. Hughes, 12 Kan. App. 2d 621, 623, 752 P.2d 1086 (1988). Since this ordinance does not infringe upon explicit constitutional guarantees, the City cites Boyles v. City of Topeka, 271 Kan. 69, 72, 21 P.3d 974 (2001), where the court states that an ordinance should be upheld unless it “ ‘is impermissibly vague in all of its applications.’ ” The City argues the distinguishing words in the Lincoln ordinance that separate it from the Luna ordinance are “unreasonable . . . loud noise which . . . injures or endangers the . . . health ... or safety of others within the City.” The City argues that since these words provide the “reasonableness” standard, there is no need for additional “reasonable sensibilities” language as was the case in Smith. In State v. Fisher, 230 Kan. 192, 631 P.2d 239 (1981), as relied upon by the City, the court discussed the word “unreasonably” in the context of an endangering of a child statute and whether the defendant was guilty of “ ‘unreasonably causing or permitting a child ... to be placed in a situation in which its life, body or health may be injured or endangered.’ ” The Fisher court found the statute was not unconstitutionally vague because: “ ‘[U]nreasonably,’ as that word is used in K.S.A. 21-3608(1) (b), is tire doing or the omitting of some action contrary to reason, the doing of or omitting to do something that the average person, possessing ordinary mental faculties, would not have done or would not have omitted under all of the attendant and known circumstances.” 230 Kan. at 194. The Fisher court cited to other statutory provisions demonstrating “reasonableness,” namely driving “at a speed greater than is reasonable and prudent under the conditions” (K.S.A. 8-1557), a “reasonable belief ’ standard for compulsion, self-defense, and defense of property (K.S.A. 21-3209, K.S.A. 21-3211, K.S.A. 21-3212), and an officer’s use of force reasonably necessary to effect an arrest (K.S.A. 21-3215). 230 Kan. at 193. The City argues that contrary to Luna, the Lincoln ordinance clearly gives fair warning to both corporate and private citizens of the City that they are required to conform to noise limits that are not unreasonable and that do cause injury to or endanger the health, peace, or safety of others within the City. Amicus Briefs The Kansas Cooperative Council (KCC) filed an amicus brief on behalf of Farmway. The KCC serves as a leading trade organization for Kansas agricultural and farm supply cooperatives. The KCC argues there are many facilities similar to Farmway’s grain elevator in Kansas and most produce at least some dust and noise as a normal part of daily operations. If the ordinances in question are found to be constitutional, the KCC argues Kansas municipalities will have the power to criminally sanction these facilities upon the complaint of unusually sensitive individuals and make day-to-day operations very difficult for cooperative members. The KCC argues the ordinances do not protect against arbitrary and discriminatory enforcement. Just as in Luna, the KCC argues the ordinances do not contain a reasonable person standard for the complaining party and one is left wondering which action will be considered to have injured or endangered the public health or safety, and by which standards such decision will be made. The KCC contends that Smith controls these types of cases and establishes a reasonable person standard for all valid ordinances. The KCC argues that the word “unreasonable” in the ordinance does not make it constitutional under Smith and Luna. The KCC contends the City’s ordinance still shifts the test of reasonableness back to the activity in question and not to the complaining party as in Smith. The KCC argues that placing the question of reasonableness back on the regulated activity rather tiran on the sensibilities of the complaining party still leaves a situation in which an unreasonably sensitive party can create criminal liability for the defendant merely by complaining that they are offended by a given practice. The KCC argues the practical implications of the City’s ordinance are significant. Grain storage and processing facilities are important pieces of Kansas’ agricultural industry. Threatening the grain storage industry could cause the collapse of the agricultural economy. Fewer operational grain storage facilities would lead to increased transportation costs for farmers and grain handlers and a loss of agricultural jobs. If the ordinances are upheld, businesses and individuals run the risk of being cited and called into criminal court on the complaints of very small groups of people or even one hyper-sensitive individual. The Kansas Grain & Feed Association (KGFA) filed an amicus brief on behalf of Farmway. KGFA is a voluntary association whose members include businesses engaged in receiving, storing, and processing grain in Kansas. KGFA argues that if the City is successful on appeal, municipalities across the state will have license to punish grain storage facilities at the whim of anyone who com plains about noise or dust, even in spite of efforts made by the facilities to address any such concerns, regardless of whether such complaints are reasonable. KGFA states that Farmway had no way to know whether the noise or dust actually constituted a violation of the ordinances. As measured by the KDOL and the KDHE, the noise and dust related to Farmway’s operations were within acceptable limits. Yet tire City charged Farmway with violations of both noise and public nuisance ordinances. KGFA argues there is an industry impact for consideration in this case. Kansas has statutes declaring the policy of this state to conserve and protect and encourage the development and improvement of farmland for the production of food and other agricultural products. KGFA states that an unconstitutional ordinance that negatively impacts a vital agricultural industry does nothing to further this policy. KGFA recognizes that most Kansas cities have adopted the Uniform Public Offense Code. However, KGFA states there are hundreds of Kansas grain elevators located within city limits and noise and dust are an inherent part of handling, storing, and processing grain, and state and federal agencies currently regulate noise and air quality. KGFA insists that if the ordinances in this case are allowed to stand, die facilities engaged in these operations will potentially face criminal charges for violating public nuisance ordinances without any advance way to gauge whether the elevator s noise or dust exceeds the acceptable limits. Analysis of the Use of the Word “Unreasonable” To strike this ordinance, we would have to conclude that it clearly appears to be unconstitutional. Boyles, 271 Kan. at 72; Luna, 28 Kan. App. 2d at 414. However, we must strictly construe ordinances imposing criminal sanctions and any reasonable doubt is decided in favor of the accused. State v. Jackson, 291 Kan. 34, 40, 238 P.3d 246 (2010). We conclude the Lincoln noise ordinance does not give fair warning to those potentially subject to its reach because there are no objective standards imparted. Just as it was the case in Luna, the Lincoln ordinance contains “[ljoaded phrases and words.” 28 Kan. App. 2d at 416. The difference here is that the Lincoln ordinance contains more of these “[l]oaded phrases and words.” In substance, the Lincoln ordinance and the ordinance in Luna are really no different. The inclusion of the word “unreasonable” in the Lincoln ordinance does not cure its vagueness. The City cites cases from other jurisdictions that have prohibited “unreasonable noise” as disorderly conduct and found no unconstitutional infirmities. See People v. Fitzgerald, 194 Colo. 415, 573 P.2d 100 (1978) (disorderly conduct by making “ ‘unreasonable noise in a public place or near a private residence that he has no right to occupy ”); State v. McDermott, 135 Vt. 47, 373 A.2d 510 (1977) (reversing charges based on Vt. Stat. Ann. tit. 13, § 1026 [1971] which states: “A person who, with intent to cause public inconvenience, or annoyance or recklessly creating a risk thereof... [2] Makes unreasonable noise.”). Even if the City is correct that the Lincoln ordinance is distinguishable from the ordinance in Luna because of the inclusion of “unreasonable” in describing the quality of noise, the critical piece of the Lincoln ordinance is still the fact that it only applies where the noise “either annoys, disrupts, injures or endangers” the comfort, repose, health, peace or safety of others within the City. It is the ordinance’s application language that makes it vague. There is no objective standard by which to judge whether the complainants have reasonable grounds to complain about the noise either annoying, disrupting, injuring, or endangering them. We agree with the district court that this language fails to provide an objective standard. The absence of an objective standard subjects the defendant to the particular sensibilities of the complainant, not something that is geared toward a “reasonable sensibility” standard. Consequently, the ordinance does not adequately guard against arbitraiy and discriminatory enforcement. Was the Nuisance Ordinance a Valid Exercise of the City’s Police PowerP The City also argues the nuisance ordinances are a valid exercise of the City’s police power to legislate and govern such matters within its municipal borders. The City’s nuisance ordinance is the adoption of the provisions of sections 9.5 and 9.6 of the Uniform Public Offense Code published by the League of Kansas Municipalities (LKM). “9.5 MAINTAINING PUBLIC NUISANCE. Maintaining a public nuisance is by act, or by failure to perform a legal duty, intentionally causing or permitting a condition to exist which injures or endangers the public health, safety or welfare. (K.S.A. 21-4106) “Maintaining a public nuisance is a Class C violation. “9.6 PERMITTING PUBLIC NUISANCE. Permitting a public nuisance is knowingly permitting property under the control of the offender to be used to maintain a public nuisance, as defined in Section 9.5 of this article. (K.S.A. 21-4107) “Permitting a public nuisance is a Class C violation.” Our standard of review is the same as previously discussed in the context of the Lincoln noise ordinance. The constitutionality of an ordinance is a question of law with unlimited review. See City of Wichita v. Edwards, 23 Kan. App. 2d at 964. If an ordinary person exercising common sense can understand and comply with the statute, it is constitutional. Boatright, 251 Kan. 240, 243, 834 P.2d 368 (1992). In determining whether an ordinance is void for vagueness, two inquires are appropriate: (1) whether the ordinance gives fair warning to those persons potentially subject to it and (2) whether the ordinance adequately guards against arbitrary and discriminatory enforcement. Busby, Inc., 29 Kan. App. 2d at 562. The City argues the nuisance ordinances involve the City’s duty to exercise its inherent police powers to prevent conditions within the city that injure or endanger the public health, safety, or welfare. The City maintains the district court’s decision unnecessarily and unrealistically holds the City to unlimited requirements of foresight to predict precisely each and every activity or condition that would fall within the proscribed conduct before it could be abated or penalized as a nuisance by the City. The City states that the Home Rule Amendment to the Kansas Constitution provides that “Cities are hereby empowered to determine their local affairs and government.” Kan. Const, art. 12, sec. 5(b). The League of Kansas Municipalities Amicus Brief The League of Kansas Municipalities (LKM) filed an amicus brief on behalf of the City. The LKM argues that a number of Kansas cases have opined on the nature of a public nuisance, what it encompasses, and how it is defined. See Culwell v. Abbott Construction Co., Inc., 211 Kan. 359, 362, 506 P.2d 1191 (1973); Hofstetter v. Myers, Inc., 170 Kan. 564, 568, 228 P.2d 522 (1951). LKM contends that the term public nuisance is one capable of. determination, if not precise definition. LKM argues that it is clear that Farmway knew very well that the dust and noise created by its business operation was a problem. This was evidenced during the building process and also by Farmway’s request for evaluations by the KDOL and KDHE. LKM argues that for Farmway to claim that it did not have notice of the conduct that might constitute a nuisance is belied by its actions and statements. LKM states there is no constitutional vagueness because Farmway knew its conduct was creating a nuisance. Analysis on Public Nuisance Regulation In Hofstetter, 170 Kan. 564, the defendant appealed a judgment of the lower court granting a permanent injunction enjoining the defendant from operating a portable hot asphalt mixing plant because the plant’s operation constituted a nuisance on account of the dust and obnoxious odors resulting for its operation. The court held that the finding by the district court that under certain wind conditions plaintiffs were inconvenienced by the dust, did not, under all of the facts and circumstances, meet the test of constituting a legal nuisance. 170 Kan. at 569. The court said: “While the word nuisance is perhaps incapable of precise definition, yet in general it is held to be something which interferes with the rights of citizens, whether in person, property, or enjoyment of property, or comfort. It has also been held to mean an annoyance, and, in its broadest sense, that which annoys or causes trouble or vexation, that which is offensive or noxious, or anything that works hurt, inconvenience or damage. (See 66 C.J.S., Nuisances, § 1, p. 727). What may or may not constitute a nuisance in a particular case depends upon many things, such as the type of neighborhood, the nature of the tiling or wrong complained of, its proximity to those alleging injury or damage, its frequency or continuity, and the nature and extent of the injury, damage or annoyance resulting. Each case must of necessity depend upon its own particular facts and circumstances.” 170 Kan. at 568. The court in Hofstetter discussed the concept of whether the dust constituted a nuisance: “As a general proposition it may be said that dust which substantially interferes with the comfortable enjoyment of adjacent premises constitutes a nuisance, provided it is sufficient to cause perceptible injury to persons or property. On the other hand, a reasonable amount of dust in a manufacturing community or industrial district does not necessarily constitute a nuisance even though it may cause some annoyance, and this is particularly true where the dust caused by the operation of a business is only occasional and the resultant injury slight. In other words, a given amount of dust in one locality well might be considered and held to be a nuisance, and not so in others, all depending upon the particular facts and circumstances. (39 Am. Jur., Nuisances, § 57, pp. 339, 340; 66 C.J.S., Nuisances, § 23, p. 777. See annotations in 3 A.L.R. 312; 11 A.L.R. 1401; and 8 A.L.R.2d 419.)” 170 Kan. at 568-69. Except for Hofstetter, all the cases cited by the City involve specifically directed nuisance ordinances, not the general all-encompassing ordinance in this case. See Boyles, 271 Kan. 69 (public nuisance ordinance that prohibited the maintaining on private property of any garbage, rubbish, trash, refuse, junk, or other listed items which create an unsightly appearance); Hearn v. City of Overland Park, 244 Kan. 638, 772 P.2d 758, cert. denied 493 U.S. 976 (1989) (ordinance regulating the ownership of pit bulls within the city); City of Colby v. Hurtt, 212 Kan. 113, 117, 509 P.2d 1142 (1973) (involved a conviction under a zoning ordinance restricting the location of mobile homes); City of Lyons v. Suttle, 209 Kan. 735, 493 P.2d 9 (1972) (ordinance at issue, found to be within the police power of a municipality, prohibited consumption of cereal malt beverage in a vehicle, and prohibited transportation of open container of beverage); State v. Johnson, 196 Kan. 208, 410 P.2d 423 (1966) (nuisance statute concerning the maintenance of animal stables and sheds); Grigsby v. Mitchum, 191 Kan. 293, 380 P.2d 363 (1963), cert. denied 375 U.S. 966 (1964) (city ordinance prohibiting issuance of a pinball license); Martin v. Davis, 187 Kan. 473, 484, 357 P.2d 782 (1960) (exercise of valid police power by Supreme Court requiring a Kansas attorney who regularly practices in another state to associate local counsel before making appearances in Kansas). Farmway cites State of New Jersey v. Golin, 363 N.J. Super. 474, 480, 833 A.2d 660 (2003), where the court considered a general ordinance similar to the Lincoln ordinances as it applied to tree limbs blocking a sidewalk: “The following matters, things, conditions or acts and each of them are hereby declared to be a nuisance and injurious to the health of the inhabitants of this municipality: “(a) Any matter, thing, condition or act which is or may become detrimental or a menace to the health of the inhabitants of this municipality; “(b) Any matter, thing, condition or act which is or may become an annoyance, or interfere with the comfort or general well-being of the inhabitants of this municipality.” The court in Golin, in finding the ordinance was unconstitutionally vague, acknowledged that it would be impossible to draft an ordinance addressing all potential types of conduct posing a health hazard and observed that the United States Supreme Court requires municipalities to enact ordinances “directed with reasonable specificity toward the conduct to be prohibited.” 363 N.J. Super. at 483-84 (quoting Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S. Ct. 1686, 29 L. Ed. 2d 214 [1971]). The Golin court gave the following advice: “there is no reason that the municipality cannot enact a more specific ordinance to proscribe the objectionable conduct. Sidewalks and tree branches are at least as common in East Windsor as pigeons are in Atlantic City. If the obstruction of sidewalks by overhanging tree limbs presents a public nuisance, then it lies within the power of the local board of health to enact an ordinance specifically prohibiting such occurrences.” 363 N.J. Super. at 484. Farmway contends that even though the district court did not address whether the nuisance ordinances were facially invalid or invalid as applied, we can still address the matter within our unlimited review. Farmway states that the legislature has specified several criminal activities as common nuisances, including commercial gambling, promoting obscenity, and promoting prostitution for example. See K.S.A. 2010 Supp. 22-3901. Farmway argues that generating both noise and dust is common and affects the public health, safety, or welfare only when generated in excess and over extended periods of time, and they were entitled to advance notice of the objective standards to which it was required to conform. Farmway argues that state and federal governments have set specific limits for both noise and particulate emissions in the workplace. This is evident in both the inspections from the KDOL and KDHE. The record does not indicate, nor does the City argue, that the noise or dust levels measured by state officials have ever been out of compliance with acceptable standards. Farmway maintains that just like the disturbing the peace ordinance, the City’s nuisance ordinance placed Farmway and others in the impossible position of guessing about the levels of noise or dust that will offend residents or City officials resulting in a criminal prosecution. If an ordinaiy person exercising common sense can understand and comply with the ordinance, it is constitutional. Boatright, 251 Kan. at 243. In determining whether an ordinance is void for vagueness, two inquires are appropriate: (1) whether the ordinance gives fair warning to those persons potentially subject to it and (2) whether the ordinance adequately guards against arbitrary and discriminatory enforcement. Busby, Inc., 29 Kan. App. 2d at 562. The vagueness doctrine is premised on the notion that the law must “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). The prohibited conduct under the Lincoln nuisance ordinances criminalizes any conduct “which injures or endangers the public health, safety or welfare.” This ordinance does not give fair warning to those persons potentially subject to it as to what conduct is criminalized. The district court stated the ordinance is “so vague and indefinite that it fails to warn.” Further, the ordinance does not adequately guard against arbitrary and discriminatory enforcement. This appears to be apparent through the evidence, or lack thereof, that Farmway has ever been out of compliance with regulatory standards for dust and industrial noise under State and Federal standards. Applying the remedial language in Golin, we find there is no reason that the City cannot enact a more specific ordinance to proscribe the objectionable conduct involving dust and industrial noise and provide constitutionally acceptable objective standards for consideration of the conduct. We realize that small farm towns depend on the agricultural economy for its survival and vice versa — as seen by the many briefs filed by amicus curiae. However, “[sjidewalks and tree branches are at least as common in East Windsor as pigeons are in Atlantic City,” 363 N.J. Super. at 484, as dust and industrial noise are in small rural farm towns. If dust and industrial noise present a public nuisance, then it lies within the power of the City to enact an ordinance specifically prohibiting such nuisance and defining objective standards to give anyone subject to its criminal penalties fair warning for what conduct will be prosecuted. Affirmed. <* * # Greene, C.J., and Marquardt, J., concur in the result.
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Hill, J.: This is an interlocutory appeal of a district court’s certification of a class action lawsuit that seeks recovery for claims made under the Telephone Consumer Protection Act, 47 U.S.C. § 227 etseq. (2006). The technical questions raised by the appellant about the certification of the class, such as precertification discovery and commonality, are controlled by a recent Kansas Supreme Court decision concerning the Act and, thus, we affirm the rulings of the district court in accordance with that opinion. Besides the usual questions that concern the propriety of the class certification, this appellant also raises the issue of the applicable statute of limitations: either the federal 4-year limit or the state 1-year limit. Through the exercise of pendent jurisdiction, an appellate court may entertain additional questions in an interlocutoiy appeal as an act of judicial economy. Here, if the state statute applies, then there is no need for class certification. If the federal law controls, then the class action proceeds. Exercising pendent jurisdiction and being persuaded by the majority of other states that have addressed the issue, we hold that the federal 4-year statute of limitations applies to all actions in Kansas arising under the Telephone Consumer Protection Act. Applying the federal statute promotes the intent of Congress and avoids the problems that arise from limitation borrowing. The action begins after the transmission of unsolicited advertisements sent via facsimile. Jeffrey Drake owns Advanced Medical Associates, P.A., d/b/a Drake Chiropractic. Advanced Medical contracted with Business to Business Solutions to send fax advertisements to other businesses in the region close to Advanced Medical. Business to Business created an advertisement and, with Advanced Medical’s approval, successfully delivered it to more tiran 5,000 telephone fax numbers in December 2005. Advanced Medical paid $268 to Business To Business for this service. On November 2, 2009, Anderson Office Supply Inc. filed a class action petition against Advanced Medical in the Harvey County District Court. Anderson alleged that under the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., entities are prohibited from having an agent send unsolicited fax advertisements. Anderson claimed Advanced Medical violated the Act on December 13, 2005, when Business To Business (on Advanced Medical’s behalf) transmitted a fax advertisement to Anderson. Anderson therefore requested monetary relief and an injunction preventing further unlawful action by Advanced Medical. After that, Anderson asked the court for certification of the class under K.S.A. 2010 Supp. 60-223. Both parties agree this case was filed after Anderson’s counsel, while prosecuting another Telephone Consumer Protection Act case involving Business To Business, obtained Business To Business’ archived computer files containing fax numbers that ultimately identified tire class members in this case. Advanced Medical had concerns about the validity, authenticity, and accuracy of the electronic information obtained by Anderson’s counsel, so it filed a memorandum opposing the motion for class certification and requested the opportunity for discovery related to the electronic information before any class was certified. The district court denied Advanced Medical’s request, reasoning that further discoveiy regarding the class members did not prevent class certification at that time because this type of discovery could be conducted while preparing the case for a trial on the merits. The court then granted class certification after finding the proposed class met tire requirements of K.S.A. 2010 Supp. 60-223(a) and certified tire class under K.S.A. 2010 Supp. 60-223(b)(l)(A) and (b)(3). In doing so, the court rejected Advanced Medical’s basis for opposing class certification — that the proper proceeding for an action such as this is small claims court, not a class action. Then, Advanced Medical applied for permission to take an interlocutory appeal under K.S.A. 2010 Supp. 60-223, raising four issues: (1) whether the district court abused its discretion in certifying the class, (2) whether the district court abused its discretion in denying precertification discovery, (3) whether the class claims were barred by the Kansas statute of limitations, and (4) if certification was appropriate, whether it should have been limited to certification under K.S.A. 2010 Supp. 60-223(b)(1)(A). Resolution of the statute of limitations dispute is crucial to this litigation. When Anderson filed the class action petition in the district court, it alleged that the fax advertisement at issue was transmitted on December 13, 2005. Advanced Medical then moved for judgment on the pleadings, arguing that under the Kansas statute of limitations — K.S.A. 60-514(c) — actions upon a statutory penalty must be brought within 1 year. The petition was filed on November 2, 2009 — more than 1 year after the fax was transmitted. In response, Anderson argued the federal, 4-year statute of limitations applies in tírese actions — so its claims were timely made. The district court agreed that the federal statute of limitations applies and denied Advanced Medical’s motion. After noting Kansas had not determined which statute of limitations applies in Telephone Consumer Protection Act cases, and other states have ruled on both sides of tire issue, tire district court found that the majority of states apply the federal statute. The court believed that the rationale offered by the majority outweighed that offered by the minority. This court has pendent jurisdiction to decide which statute of limitation applies. Anderson argues this court lacks jurisdiction to consider the applicable statute of limitations because Advanced Medical took its appeal under K.S.A. 2010 Supp. 60-223(f) — which permits an appeal from an order granting or denying class action certification. Thus, in its view, this court may only consider arguments regarding the certification of the class in this case — and cannot consider any argument about tire applicable statute of limitations. Obviously, the question whether this court has subject matter jurisdiction is a question of law over which we exercise unlimited review. Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 414, 997 P.2d 681 (2000). The doctrine of pendent jurisdiction controls this issue. In explaining the concept of pendent jurisdiction, our Supreme Court in Williams v. Lawton, 288 Kan. 768, 784, 207 P.3d 1027 (2009), said: “[T]he permissible scope of an interlocutoiy appeal... is not necessarily limited to the precise questions that may have been certified by the district court and an appellate court may have supplemental interlocutoiy jurisdiction.” The Williams court elaborated: “Although there is little Kansas case law considering this concept, pendent or supplemental interlocutory jurisdiction was found to exist in Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 997 P.2d 681 (2000). In Cypress Media, this court recognized that in most circumstances an appellate court’s task in an interlocutoiy appeal is to answer certified questions rather than to rule on the propriety of all underlying orders made by tire district court. 286 Kan. at 414; see Adams v. St. Francis Regional Med. Center, 264 Kan. 144, 151, 955 P.2d 1169 (1998) (‘The purpose of an interlocutory appeal is to resolve a “controlling question of law” that would materially expedite a final determination in tire case.’). Nevertheless, an exception was recognized that applies where a certified issue in an interlocutory appeal is ‘inextricably intertwined’ with other issues that do not meet the criteria for an interlocutory appeal. Under the exception, the other issues may also be reviewed to allow meaningful review and promote judicial economy. Cypress Media, 268 Kan. 407, Syl. ¶ 2.” 288 Kan. at 785. The Williams court ultimately upheld this court’s exercise of pendent interlocutory jurisdiction over an issue not identified as a certified question for appeal, as a determination on the certified question could become “meaningless” depending on the outcome on the noncertified issue. 288 Kan. at 786-87. In this case, Advanced Medical raises the type of question that pendent jurisdiction is intended to answer. A determination of tire applicable statute of limitations could render class certification meaningless. If Anderson’s claims are all barred by the statute of limitations, there is no class of plaintiffs. Thus, under these facts, the certification issue is “inextricably intertwined” with the statute of limitations issue because a determination on the latter could dispose of the case entirely. Clearly then, resolving the statute of limitations issue in this case promotes judicial economy and prevents this court from rendering an advisory opinion regarding certification. In opposition to this view, Anderson argues that pendent jurisdiction may only apply where an appeal is brought under K.S.A. 60-2102(c) and there is “no authority extending the concept to appeals under K.S.A. 60-223(1).” That statute, of course authorizes appeals of orders granting class certification. On the other hand, K.S.A. 60-2102(c), which authorizes interlocutory appeals generally, permits a district court to indicate its order involves a controlling question of law and there is substantial ground for differences of opinion on the matter, so that an immediate appeal from the order may materially advance the ultimate termination of the litigation. Unfortunately, Anderson provides no authority or argument for the claim that pendent jurisdiction applies under the statute that deals generally with interlocutory appeals but does not apply under K.S.A. 60-223(f). Therefore, we are not so persuaded. Going further, Anderson also points to the recent case of Board of Sedgwick County Commrs v. City of Park City, 260 P.3d 387, and argues appellate courts have no authority to create equitable exceptions to jurisdictional requirements. In Park City, the Kansas Supreme Court abolished the “unique circumstances” doctrine as a means of saving untimely appeals. 293 Kan. at 120. Park City is distinguishable from the present case and does not apply here. First, Park City does not involve the application of pendent jurisdiction, but involves the “unique circumstances” doctrine. Park City makes no mention of pendent jurisdiction. Second, a cursory review of the caselaw indicates the “unique circumstances” doctrine was applied to save untimely appeals. We have not found any case where it has ever been applied to save a question not certified for interlocutory review. This court has pendent jurisdiction to consider the issue concerning the applicable statute of limitations. The 4-year statute of limitations applies. Advanced Medical maintains the district court erred in holding the federal statute of limitations applies to Telephone Consumer Protection Act actions brought in Kansas state courts. This court has unlimited review over the interpretation and application of a statute of limitations. Four Seasons Apts. v. AAA Glass Service, Inc., 37 Kan. App. 2d 248, 250, 152 P.3d 101 (2007). Also, this question has not been previously resolved in Kansas. We are persuaded that the federal statute applies in Kansas cases because the Telephone Consumer Protection Act was passed by Congress 1 year after it had established a uniform statute of limitations for civil acts arising under any Act of Congress, and the Act had no internal limitation period set out in its text. Application of the federal statute would not only be in accord with the intent of Congress but would eliminate the problems arising from the borrowing of state statutes of limitations in actions involving claims arising from federal law. A review of the statutes is important at this point. The general federal statute of limitations, set forth at 28 U.S.C. § 1658(a) (2006), states: “Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues.” This statute was enacted by Congress on December 1,1990. After that, the Telephone Consumer Protection Act was enacted the following year, in 1991. See 47 U.S.C. § 227. Section (b)(1) of the statute provides that it is unlawful for any person in the United States: “(C) to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless— (i) the unsolicited advertisement is from a sender with an established business relationship with the recipient; (ii) the sender obtained the number of the telephone facsimile machine through— (I) die voluntary communication of such number, within the context of such established business relationship, from the recipient of the unsolicited advertisement, or (II) a directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution, except that this clause shall not apply in the case of an unsolicited advertisement that is sent based on an established business relationship with the recipient that was in existence before July 9, 2005, if the sender possessed the facsimile machine number of the recipient before such date of enactment; and (iii) the unsolicited advertisement contains a notice meeting the requirements under paragraph (2)(D), except that the exception under clauses (i) and (ii) shall not apply with respect to an unsolicited advertisement sent to a telephone facsimile machine by a sender to whom a request has been made not to send future unsolicited advertisements to such telephone facsimile machine that complies with the requirements under paragraph (2)(E) The statute also provides: “A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State— (A) an action based on a violation of this subsection or the regulations prescribed under tins subsection to enjoin such violation, (B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or (C) both such actions. If tire court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.” 47 U.S.C. § 227(b)(3). The Act has no self-contained statute of limitations. After the Act’s passage, state courts began hearing these actions and were eventually forced to pick the applicable statute of limitations — the federal statute or their state’s rule. As the parties here have properly stated, other states have ruled on both sides of the issue. The States that apply state statutes of limitations rely upon the “except as otherwise provided by law” language found in the gen eral federal statute of limitations, 28 U.S.C. § 1658(a), as away of applying the local statute of limitations. These states have ruled their state statutes of limitations are law “providing otherwise.” Along the same line, other states rely upon language in the Act itself that states a party “may, if otherwise permitted by the laws or rules of court of a State,” bring the action in state court. 47 U.S.C. § 227(b)(3). These states reason this language permits states to allow or disallow the action depending on the application of a state law or rule such as the state statute of limitations. To the contrary, other states hold that the general federal statute of limitations applies to claims made in state court. A case from Maryland is instructive. In Worsham v. Fairfield, 188 Md. App. 42, 981 A.2d 24 (2009), the court made a thorough analysis of the legislative history of the Act, finding one Senator s statement regarding the “background” of the law illuminating. This Senator explained that the statute did not dictate which court in each state was the proper venue for such actions, as this was a matter for state legislation, but that the hope was that States would make it easy for consumers to bring the actions — such as by allowing them to bring actions in small claims courts. The Maryland Court of Appeals had previously construed this to mean that the “if otherwise permitted by the laws or rules of court of a State” language in the Act was intended to avoid dictating the proper venue for these lawsuits. 188 Md. App. at 50. Next, the Worsham court discussed the concerns about “limitations borrowing” that occurred prior to the enactment of 28 U.S.C. § 1658(a), which the United States Supreme Court had previously discussed in detail in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 377-80, 124 S. Ct. 1836, 158 L. Ed. 2d 645 (2004). 188 Md. App. at 52-53. In Jones, the Court had to decide what statute of limitations applied to a federal claim under 42 U.S.C. § 1981 — the federal statute of limitations set forth at issue in the present case or the state personal injury statute. The Jones Court ultimately concluded the federal statute applies, stating: “We conclude that a cause of action ‘aris[es] under an Act of Congress enacted’ after December 1, 1990 — and therefore is governed by § 1658’s 4-year statute of limitations — if the plaintiff’s claim against the defendant was made possible by a post-1990 enactment. That construction best serves Congress’ interest in alleviating the uncertainly inherent in the practice of borrowing state statutes of limitations while at the same time protecting settled interests. It spares federal judges and litigants the need to identify the appropriate state statute of limitations to apply to new claims but leaves in place the ‘borrowed’ limitations periods for preexisting causes of action, with respect to which the difficult work already has been done. (Emphasis added.)” 541 U.S. at 382. The Worsham court summarized Jones’ discussion about the problems associated with applying state statutes of limitations to federal claims when it was analyzing the Telephone Consumer Protection Act. Prior to the enactment of 28 U.S.C. § 1658(a), there was no uniform federal statute of limitations applicable to federal causes of action. So, when a federal claim was made in state court and the pertinent federal statute did not contain a statute of limitations, the state was forced to “borrow” a state statute of limitations. In doing so, the court was often forced to answer the difficult question of what state statute of limitations was most applicable to the federal claim at hand. 188 Md. App. at 52-54. Other problems associated with the practice of borrowing state statutes of limitations include conflict of law problems (i.e., which state law controls — the law of tire forum or that of the situs of injury?) and uncertainty for litigants (i.e., a plaintiff alleging a claim in State A could be barred by the state statute of limitations, while another plaintiff could be permitted to proceed under State B’s statute). Worsham, 188 Md. App. at 53. According to Jones, 28 U.S.C. § 1658(a) was enacted to eliminate the problems associated with borrowing state limitations periods. Worsham, 188 Md. App. at 54. The Worsham court ultimately concluded: “Clearly, the right to pursue a private cause of action for a violation of the [Act], as permitted by 47 U.S.C. § 227(b)(3), falls within the scope of coverage of 28 U.S.C. § 1658’s 4-year statute of limitations as enunciated by the Court in Jones. Given the Jones Court’s conclusion that 28 U.S.C. § 1658 applies ‘if the plaintiffs claim against the defendant was made possible by apost-1990 enactment,’ coupled with the fact that the [Act] was enacted in 1991, we are persuaded that 28 U.S.C. § 1658 applies to Worsham’s claim. “Although it is true that the first clause in 28 U.S.C. § 1658(a) provides an exception to the 4-year statute of limitations if ‘otherwise provided by law,’ we see nothing in the legislative history of either the [Act] or 28 U.S.C. § 1658 that supports a rational conclusion that Congress intended for a different statute of limitations to apply to private causes of action pursued under 47 U.S.C. § 227(b)(3). The [Act] was enacted just a few months after Congress adopted a provision that was supposed to provide a uniform statute of limitations for all subsequently enabled federal causes of action. It seems highly unlikely that, when Congress enacted the [Act] in 1991, it intended to engender more of the same problems that were caused by borrowing state limitations provisions prior to the 1990 enactment of 28 U.S.C. § 1658. And if Congress, in fact, had intended to exempt actions under the [Act] from tire uniform federal statute of limitations, Congress could have chosen language that made such an intent more evident, or better yet, explicit.” 188 Md. App. at 55-56. Like Worsham, the Superior Court of New Jersey also relied on Jones to hold the federal statute of limitations applies in actions arising from the Act. In Zelma v. Konikow, 379 N.J. Super. 480, 879 A.2d 1185 (2005), the court rejected the argument that language in the Act indicating a person may bring an action “if otherwise permitted by the laws or rules of court of a State” means state statutes of limitations apply. 379 N.J. Super, at 485. The court stated: “Absent a state limitation period specifically applicable to [the Act] claims, the use of state limitation periods based on analogous causes of action under state law would complicate not facilitate pursuit of the private [Act] remedy. We are mindful of the difficulties that confront state courts and litigants compelled to identify an analogous state cause of action in order to select a limitation period.” 379 N.J. Super. at 486-87. As the court noted, the case before it illustrated the difficulty of limitation borrowing — as several New Jersey statutes of limitations could apply in the case. 379 N.J. Super. at 487. The court stated: “In short, the effort to apply an existing limitation period would reintroduce complexify and uncertainty of the sort that 28 U.S.C. § 1658 was designed to eliminate without furthering any state interest Congress sought to protect by making the [Act] private cause of action available only ‘if otherwise permitted’ by state law.” 379 N.J. Super. at 488. See Sznyter v. Malone, 155 Cal. App. 4th 1152, 1168, 66 Cal. Rptr. 3d 633 (2007); Benedia v. Super Fair Cellular, Inc., 2007 WL 2903175 (N.D. Ill. 2007) (unpublished opinion). In opposition to the application of the 4-year statute of limitations, Advanced Medical cites Edwards v. Emperors Garden Rest., 122 Nev. 317, 130 P.3d 1280 (2006), and David L. Smith and Associates v. APT, 169 S.W.3d 816 (Tex. App. 2005). These cases are not persuasive. Neither the Nevada nor Texas state courts in Edioards and Smith set forth the extensive analysis found in the Maryland and New Jersey opinions cited above. In Edioards, the Nevada Supreme Court simply set forth the “[e]xcept as otherwise provided” language of die federal statute and the “if otherwise permitted by” language of the Act and concluded state law applies. 122 Nev. at 326-28. The Edioards court did not discuss the historical background of the federal statute of limitations or address the legislative histoiy of the Act. The Edioards court found Jones inapplicable in that Jones addressed the problems associated with federal courts borrowing state statutes of limitations and the work this created for federal judges — something the Edwards court did not believe applied to claims under the Act brought in state court. 122 Nev. at 328 n.30. Similarly, the Smith court based its holding on the statutory language of the competing law. And like Edwards, the Smith court did not discuss tire historical background and legislative history of the law. Smith relied upon Chair King, Inc. v. GTE Mobilnet of Houston, 135 S.W.3d 365 (Tex. App. 2004), a prior Texas case that held the state statute of limitations applies to actions arising under tire Act. The significance of Chair King is questionable, however, given the decision has since been overturned by the Texas Supreme Court — as the court ruled the plaintiffs in that case had no cause of action, since Texas did not recognize actions under the Act in state court when the claim was made. See The Chair King, Inc. v. GTE Mobilnet of Houston, 184 S.W.3d 707 (Tex. 2006). Furthermore, as Zelma pointed out, the 2004 Chair King opinion was decided only 3 days after Jones was decided — and did not mention or apply Jones. 379 N.J. Super. at 489. The other cases Advanced Medical relies upon do not address the applicable statute of limitations and are therefore unhelpful. See Consumer Crusade v. Affor. Health Care Sol., 121 P.3d 350 (Colo. App. 2005); Kruse v. McKenna, 178 P.3d 1198 (Colo. 2008). Sun Oil Co. v. Wortman, 486 U.S. 717, 108 S. Ct. 2117, 100 L. Ed. 2d 743 (1988), which Advanced Medical cites when arguing the United States Supreme Court has recognized the states’ rights to apply their own procedural rules, including statutes of limitations, was decided in 1988 — well before the enactment of the general federal statute of limitations and the Act. Those courts that have thoroughly analyzed the issue have found in favor of applying federal law. Their reasoning is persuasive. The logic is straightforward. The plain language of 28 U.S.C. § 1658(a) states that “a civil action arising under an Act of Congress enacted after the date of the enactment of [28 U.S.C. § 1658(a)] may not be commenced later than 4 years after the cause of action accrues.” Congress enacted 28 U.S.C. § 1658(a) in 1990. The Telephone Consumer Protection Act, which contains no statute of limitations of its own, was enacted in 1991. See 47 U.S.C. § 227 et seq. The statute of limitations set forth at 28 U.S.C. § 1658(a) therefore applies to claims made in Kansas state courts under the Act. We note that our Kansas Supreme Court has not been hesitant in other contexts to hold that a federal statute of limitations applies to federal claims made in state court. See Cadle Company II, Inc. v. Lewis, 254 Kan. 158, 864 P.2d 718 (1993). Also, because the federal statute of limitations applies, we need not determine which Kansas statute of limitations would apply to a claim under the Act. As Zelma pointed out, determining the applicable Kansas statute illustrates the very problem associated with limitations borrowing. 379 N.J. Super. at 487. For this reason, we need not address Advanced Medical’s discussion about Alexander, treble damages, and other remedies. On appeal, Advanced Medical relies upon Burnett v. Southwestern Bell Telephone, 283 Kan. 134, 151 P.3d 837 (2007), for the general rule that state statutes of limitations should be borrowed when federal statutes do not contain explicit limitations periods. In Burnett, the Kansas Supreme Court held tire 3-year statute of limitations set forth at K.S.A. 60-512(2) applies when a plaintiff brings a federal ERISA claim in state court. 283 Kan. at 134. In our view Burnett is inapplicable for two reasons. First, neither party in Burnett argued the federal statute of limitations applied in the case. The court noted: “[I]t is undisputed that Kansas law should apply...283 Kan. at 139. Second, ERISA was enacted in 1974. See 29 U.S.C. § 1140. The federal statute of limitations applies to civil actions arising under Acts of Congress enacted after December 1, 1990 — such as the Act here. See 28 U.S.C. § 1658(a). The federal statute does not apply to ERISA claims because ERISA was enacted well before December 1,1990. Advanced Medical also argues that the reasoning of courts applying the federal statute of limitations is flawed because of their reliance on Jones. In Advance Medical’s view, Jones addressed the problems associated with federal courts borrowing state statutes of limitations- — an analysis that does not apply when an action such as the present one is brought in state court. We are not persuaded. As the Worsham court explained, the federal statute of limitations was enacted to address the problems associated with limitations borrowing, such as forcing states to determine the applicable state statute when a federal claim is made. As noted above, other problems associated with limitations borrowing include conflict of law and litigant uncertainty issues. 188 Md. App. at 52-54. The potential for these problems to exist is present whether an action is brought in federal court or state court. The district court did not err in holding the federal statute of limitations applies to Telephone Consumer Protection Act claims brought in Kansas state courts. The district court did not err in denying Advanced Medical’s motion for judgment on the pleadings based on the state statute. The district court exercised proper discretion when it certified this class. Advanced Medical claims the district court abused its discretion in three ways when it granted class certification. First, it did not conduct a rigorous analysis when determining whether the class met tire legal requirements for class actions since it refused to permit discovery before the class was certified. Additionally, Advanced Medical argues the putative class does not meet some of the technical requirements for class certification. And finally, class actions are not contemplated under tire Act. We will examine those arguments in drat order. In our view, much of this controversy has been put to rest by the recent opinion of the Kansas Supreme Court in Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 263 P.3d 767 (2011). Some general points made in Critchfield bear repeating here. Generally, when a discretionary decision is made within tire proper legal standards and takes into account the proper factors, a decision will withstand review even if it appears unwise. Although the district court has substantial discretion in determining whether a class should be certified, the court’s decision must be rigorously analyzed in light of the provisions of K.S.A. 2010 Supp. 60-223. 293 Kan. at 292. Subsection (a) of that statute sets out four requirements for class certification: “One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) The class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” K.S.A. 2010 Supp. 60-223. These threshold requirements have been summarized as numerosity, commonality, typicality, and adequacy of representation. 293 Kan. at 289. K.S.A. 2010 Supp. 60-223 continues: “(b) Types of class actions. A class action may be maintained if the prerequisites of subsection (a) are satisfied and if: (1) Prosecuting separate actions by or against individual members would create a risk of: (A) Inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or (B) adjudications with respect to individual class members that as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests; or (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: (A) The class member’s interest in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action.” We turn now to the issues raised by Advanced Medical in light of the holding in Critchfield. Failure to permit discovery Advanced Medical wanted to conduct precertification discovery based on the belief that the Business To Business electronic data was unreliable and thus inadmissible. If the data is unreliable, then it follows that there would be no way of reliably identifying the putative class members and thus show any liability by Advanced Medical. Specifically, Advanced Medical contends Anderson identified die plaintiff class through fax numbers contained in Business To Business’ archived computer files. According to Advanced Medical, after Anderson’s expert reviewed Business To Business’ computer files, he prepared a list of 5,170 fax numbers to which Advanced Medical successfully transmitted a fax — -and that this list formed the basis for the plaintiff class in this case. According to Advanced Medical, the problem with this procedure is that Anderson’s counsel obtained these computer files through discovery in two Illinois cases in which Business To Business was involved. Advanced Medical contends that a Business To Business representative gave counsel its computer information in reliance on the attorney’s assurance that the information would be kept confidential and would only be used in connection with the Illinois lawsuits, and that Anderson’s counsel was not given permission to use the computer information in connection with any lawsuits other than the Illinois actions. Advanced Medical also notes there are “chain of custody” issues with the computer information — alleging that in an Illinois case, a Business To Business representative testified she was uncertain what computer the information came from or how often the in formation was compiled and backed up, and the computer files were not created and maintained in the ordinary course of business. Advanced Medical also claims the Business To Business representative may not be credible because she was previously involved in a business that sold fake pennits and degrees. On appeal, Advanced Medical says Anderson’s motion for class certification “relied completely upon its expert’s opinions” — which were based only on the computer information. Anderson does not dispute any of this. In reply, Anderson avers (1) Advanced Medical made no effort to conduct discovery regarding the electronic information during the 4 months between the motion for class certification and Advanced Medical’s objection to the motion, and (2) Advanced Medical’s alleged “evidence” that casts doubt on the reliability of the electronic information is merely hypothetical and goes to admissibility and the weight a trier of fact may give the evidence at trial. The district court agreed with the latter and held that further discovery regarding the class members did not prevent class certification. The court reasoned that the additional discovery suggested by Advanced Medical could be conducted while the parties prepared the case for a trial on the merits. Based on the ruling in Critchfield, we must agree. In Critchfield, Taranto Group, Inc. hired two vendors to send out unsolicited fax advertisements. In the action that followed, the district court granted class action certification despite “incomplete” discovery with regard to the number of fax recipients that may have consented to receiving the fax or had an ongoing business relationship with Taranto. As in this case, the defendants on appeal argued the district court failed to conduct a rigorous analysis when determining whether class certification was required. On appeal, the Supreme Court stated that the court is not required to conduct “a mini-trial with extensive fact-finding before certifying or denying certification to a class,” but that it must only “rigorously analyze the proffered evidence to determine whether the plaintiffs have met or are likely to meet tire statutory requirements for certification.” 293 Kan. at 293. The court noted that although a determination as to the identity of the fax recipients and whether those parties consented or had an established business relationship with Taranto were “major evidentiary stumbling blocks for the class,” they were not “inherent barriers to class certification.” 293 Kan. at 294. The court stated that it “was unnecessary for the district court to require the plaintiff to prove at the time of certification that all or most of the potential class were entitled to damages under the Act.” 293 Kan. at 294. The court determined the district court had engaged in a rigorous analysis of the certification factors “without conducting a trial within a trial to determine the relationship of each potential class member with the defendant.” 293 Kan. at 295. Like those in Critchfield, the defendants in this case cannot escape liability by simply claiming its vendor’s records are unreliable. See Critchfield, 293 Kan. at 295. It was not necessary for the district court to require that Anderson prove at the time of certification that Business To Business’s electronic information was admissible — a determination that would have required extensive fact-finding. The district court did not abuse its discretion in granting class certification without first conducting discovery and a determination of the merits regarding the reliability of the electronic information. This case does differ from Critchfield in one way. Here, a single determination (i.e., that the electronic information is inadmissible) could bar every plaintiff in the class from proceeding against Advanced Medical. In Critchfield, individual determinations regarding consent and relationship would have been more time and fact intensive and only barred certain plaintiffs from proceeding. Nevertheless, as the Critchfield court pointed out, the district court is not required to conduct “a mini-trial with extensive fact-finding before certifying or denying certification to a class.” 293 Kan. at 293. Advanced Medical’s opportunity to present further evidence will be available when the case proceeds to trial; if evidentiary problems arise, the district court may dismiss the case. See Critchfield, 293 Kan. at 310. We also note that Advanced Medical’s concerns about the electronic information (i.e., that Business To Business was not certain what computer the information came from or how often the information was compiled and backed up, the computer files were not created and maintained in the ordinary course of Business To Business’ business, and the Business To Business representative was not a credible witness) is based on testimony procured in an Illinois case and not this case. Failure to analyze putative class members Advanced Medical next complains that the district court did not determine how many of the putative class members successfully received a fax, did not determine whether any of the class members consented to receiving the fax or had a business relationship with Drake, and did not compel Anderson to identify the class members. Complaints similar to tírese were raised and rejected in Critchfield. First, in Critchfield, the court rejected the argument that plaintiffs must show that each member of the class received the fax at issue. 293 Kan. at 299. Noting the plain language of the Act specifically prohibits the use of electronic devices “to send” unsolicited advertisements (and includes no requirement that the transmission be received), the court concluded that the Act does not require a defendant to successfully complete a fax transmission — but only requires that he attempt to do so. 293 Kan. at 299; see 47 U.S.C. § 227(b)(1)(C). The Critchfield court also rejected the argument that there was no “commonality” among the plaintiffs because some may have consented to receiving the fax or had an established business relationship with the defendant. 293 Kan. at 297. Instead, the court agreed with other courts that hold affirmative defenses of some plaintiffs should not prevent class certification. The court stated: “Although Taranto may be able to show that some putative members of the plaintiff class fall within the statutory exceptions, this possibility does not defeat certification at this stage of the proceeding. It should be a relatively simple matter to separate those parties out of the class without requiring a series of mini-trials on the question of consent or an established business relationship. If Taranto demonstrates that so many parties fall within the exceptions that the integrity of the class is undermined, then the district court may consider decertifying the class.” 293 Kan. at 297. Likewise, it was unnecessary for the district court in this case to conduct a series of mini-trials to determine whether each class member had consented to receiving the fax or had a business relationship with Drake. If it is later discovered that many of the class members have no claim under the Act on these bases, the district court may consider decertifying the class. Based on Critchfield, we must also reject Advanced Medical’s argument about identification of the class members. In Critchfield, the court stated that although the class definition must be precise enough to allow courts and parties to determine in advance of adjudication whether parties belong to the class, the plaintiff is not required to allege the exact number or identity of the class members. 293 Kan. at 307. In rejecting Advanced Medical’s motion to compel, the district court explained that Advanced Medical had been provided with a disk containing all the local fax numbers Business To Business sent faxes to, and “the names, or potential names, of any class action members that were known” to Anderson were contained on the disk. Thus, the court concluded, Advanced Medical was “just as capable” as Anderson of “running down who these fax numbers belong[ed] to” in order to determine the potential members of the class. On appeal, Advanced Medical does not claim it was not provided this disk, for example, or that it was unable to tie the fax numbers to the class members. Advanced Medical simply says the identity of the prospective class members was “critically important,” the district court should not have placed the burden upon Advanced Medical of determining who the fax numbers belonged to, and the plaintiffs needed to show the faxes were unsolicited. Advanced Medical’s argument is not persuasive. Advanced Medical has not alleged or demonstrated it was unable to determine the identities of the plaintiffs based on the information it was given and has not articulated what information it was lacking. Failure to show the prerequisites for class certification Advanced Medical next argues Anderson cannot demonstrate “commonality” among the members of the class in this case because there is no proof all class members suffered the same injury. Advanced Medical reasons that the class representative testified he did not recall receiving the fax at issue, and says class members who cannot recall receiving the fax have no damages. The Critchfield court rejected this same argument, stating it is “unnecessary for plaintiffs to prove that they actually received the [fax] transmissions,” and this issue will not defeat commonality. 293 Kan. at 299. Advanced Medical also argues the Act is not intended for class action lawsuits. The Critchfield court explicitly rejected this argument as well. 293 Kan. at 300-01. The court reasoned: “We do not agree with the defendant’s contention that over 100,000 individual small claims actions would be superior to a single class action. While the defendant in such an action might benefit if only a small number of plaintiffs found it worth their while to bring suit or were aware of their rights under the [Act], this small turnout would serve only to frustrate the intent of the [Act] and to protect junk fax advertisers from liability. It would, accordingly, not provide a ‘superior’ method for individual plaintiffs. If, on the other hand, many thousands of plaintiffs elected to pursue their rights in small claims courts, tiróse courts would be overwhelmed, plaintiffs would have to invest time and money in prosecuting their claims, and the defendant would have to appear in thousands of actions around this state and other states.” 293 Kan. at 300-01. On this same note, Critchfield rejected the argument that Act class actions are inferior to small claims actions because of the threat of “ ‘annihilating’ ” judgments in favor of the class. 293 Kan. at 302. The court reasoned that if a defendant engaged in widespread violation of the law, class certification would actually fulfill the purpose of class action litigation, and “the threat of catastrophic judgments should not protect parties that violate the law on a large scale.” 293 Kan. at 302. This disposes of Advanced Medical’s argument that class certification is inappropriate because it will create horrendous statutory damages disproportionate to the injury suffered by tire class. Contrary to Advanced Medical’s claims, the record in this case reflects the district court conducted a thorough and rigorous analysis before certifying the class action. And as Anderson points out on appeal, many of the arguments made by Advanced Medical on appeal — such as those regarding commonality and typicality — were not raised below. In its decision granting class certification, the district court observed that Advanced Medical had raised no issue with respect to the requirements of K.S.A. 2010 Supp. 60-223(a) — although the district court found these requirements had been met. Indeed, in Advanced Medical’s memorandum in opposition to Anderson’s motion for class certification, Advanced Medical only argued that class actions were not the superior procedure for dealing with Act claims — and the small claims procedure was most appropriate. Issues not raised before the district court cannot be raised on appeal. ARY Jewelers v. Krigel, 277 Kan. 27, 36, 82 P.3d 460 (2003). In the absence of some indication the court is departing from its previous position, this court is duty bound to follow Supreme Court precedent. State v. Terry, 39 Kan. App. 2d 700, 701, 183 P.3d 12 (2008). Obviously, there is no indication the court is departing from its very recent opinion in Critchfield. Based on Critchfield, we must reject the arguments raised by Advanced Medical with regard to class certification. There is nothing to suggest the district court in this case abused its discretion in granting class certification. Statutory basis for granting class certification Advanced Medical’s final argument concerns the district court’s statutory basis for granting class certification. The district court granted class certification under K.S.A. 2010 Supp. 60-223(b)(l)(A) and (b)(3). On appeal, Advanced Medical argues certification should be limited to K.S.A. 2010 Supp. 60-223(b)(l)(A) — and the action should not have been certified under (b)(3). The only explanation Advanced Medical offers to support its claim is that (1) the class action petition seeks monetary and injunctive relief, and (2) if the action is certified under K.S.A. 2010 Supp. 60-223(b)(1)(A), Anderson must notify the putative class members of their right to “opt-in” — so precertification discovery is necessary, as class members must be identified for purposes of notification. A recent United States Supreme Court case is instructive here. In Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 361-62, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011), the United States Supreme Court stated that the (b)(1) and (b)(2) classes are “mandatory classes,” as there is no opportunity for those class members to “opt out” of the class and the district court is not required to give class members notice of the action. The Court explained that unlike (b)(1) and (b)(2) classes, the (b)(3) class is not mandatory, as class members are entitled to receive notice of the action and may choose to withdraw from the class. 564 U.S. at 362. The Kansas statute, which mirrors the Federal Rule construed in Dukes, provides that for classes certified under (b)(1) or (b)(2), tire district court “may direct appropriate notice to the class”; conversely, for classes certified under (b)(3), the court “must” give class members the best notice that is practicable under the circumstances. K.S.A. 2010 Supp. 60-223(c)(2)(A), (B). This notice to (b)(3) class members must indicate that the court will exclude from the class any member who requests exclusion. K.S.A. 2010 Supp. 60-223(c)(2)(B)(v). Advanced Medical’s argument about the appropriate statutory basis for certification is premised on the assertion that if the action is certified under (b)(1)(A), Anderson must notify the putative class members of their right to “opt-in.” However, the statute does not provide that putative class members must be notified and “opt-in” when a class action is certified under (b)(1)(A). We note that Advanced Medical fails to provide any other authority indicating this is so. To the contrary, Dukes indicated the (b)(1) class is a mandatory class and no notice to its members is required. We hold this view from Dukes controls the issue. In this case, Anderson requested both monetary and injunctive relief in its petition. In Critchfield, the court held that monetary damages are appropriate under K.S.A. 2010 Supp. 60-223(b)(l)(A). 293 Kan. at 305. Both the court and the parties in Critchfield seemed to assume that injunctive relief for “prospective conduct” is appropriate under K.S.A. 2010 Supp. 60-223(b)(l)(A) — and Advanced Medical does not argue that injunctive relief is inappropriate under that section. But the Critchfield court did not indicate that a class action would have been inappropriate under (b)(3). Therefore, Advanced Medical provides no real support for why this class action should not have been certified under (b)(3). Advanced Medical has provided no valid basis for concluding the district court erred or abused its discretion in certifying the class action under both K.S.A. 2010 Supp. 60-223(b)(l)(A) and (b)(3). Affirmed.
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Greene, C.J.: Cessna Employees Credit Union (CECU) appeals a summary judgment entered against it by the Kansas Court of Tax Appeals (COTA) on its refund claim for sales taxes paid on the travel reimbursement component of goods and services rendered by Jack Henry and Associates (JHA) in providing computer upgrade goods and services to CECU. COTA concluded that travel expenses billed by JHA to CECU were “part of the total amount of consideration given by CECU in the transaction- for which the taxable goods and goods and services were sold” and thus subject to Kansas retailers sales tax as part of the “gross receipts” of JHA in the transaction. Concluding there was no “sale” of the reimbursed travel expenses, we reverse and remand with directions to grant CECU’s refund claim. Factual and Procedural Background The parties stipulated to the material facts, which were set forth by COTA as follows: “In 2006, Jack Heniy and Associates (‘JHA’) sold taxable goods and services to Cessna Employees Credit Union (‘CECU’). JHA invoiced CECU for the services, hardware and software. JHA separately invoiced CECU for the Travel Purchases (JHA employees’ transportation, meals, and lodging). “CECU is seeldng a refund of Kansas sales tax in the amount of $3,333.05 it paid to JHA on tire costs of the Travel Purchases. JHA Travel Purchases were necessary to complete JHA’s taxable contractual obligations to CECU. “CECU reimbursed JHA for the cost of its Travel Purchases including the in and out of state taxes JHA paid on the Travel Purchases. The cost of each of JHA’s Travel Purchases (and supporting documentation) was separately stated on tire invoices JHA submitted to CECU for payment. Department Exhibits Nos. 9.1 through 9.106 are documents relating to JHA’s Travel Purchases and Reimbursements from CECU. The documents were provided to the Department by CECU. “JHA was the ultimate consumer of the Travel Purchases JHA separately invoiced to CECU. CECU was not the ultimate consumer of the goods and services included in the cost of the separately invoiced Travel Purchases. “On June 30, 2008, CECU filed its request for a refund of the $3,333.05 retailers’ sale tax it paid to JHA on JHA’s Travel Purchase costs. On October 31, 2008, tire Department denied the CECU refund claim stating that the Travel Purchases and applicable retailers’ sales tax paid by JHA are included in the taxable measure of the gross selling price of the goods and services JHA sold to the CECU. “On November 11, 2008, CECU appealed the Department’s denial of the refund claim to the Secretary claiming the decisions in In re [Tax Appeal of] Bernie’s Excavating Co, Inc., 13 Kan. App. 2d 476, 772 P.2d 822 [, rev. denied 245 Kan. 784] (1989) and Southwestern Bell Tel. Co. v. State Commission of Revenue and Taxation, et al., 168 Kan. 227, 212 P.2d 363 (1950) exclude the Travel Purchases from the taxable measure of the gross selling price. CECU claims that the reimbursed Travel Purchases are non-taxable to the CECU because the JHA paid the tax on the purchases, the Travel Purchase are not for the sales of taxable tangible personal property or statutorily enumerated services, some of the Travel Purchases were incurred outside the state of Kansas, and taxation on the Travel Purchases is barred by the federal and Kansas state constitutions. “On July 17, 2009, the Secretary upheld the Department’s denial of the refund claim. On August 17, 2009, CECU timely appealed the Secretary’s denial to the Court of Tax Appeals.” In order to clarify precisely what is at issue, the record on appeal reflects that each of the transactions in question consisted of the individual travel expenses of a JHA employee, together with the sales tax on those expenses as paid by JHA to the vendor, but then separately invoiced to CECU for reimbursement with sales taxes computed again on the total. The amount invoiced was the original travel expenses plus sales tax paid, but with sales tax then computed on that total and billed for reimbursement to CECU. For example, an employee’s hotel expense of $527.43 already included sales taxes of $35.92, but that total expense was then again subjected to Kansas retailers’ sales tax before being billed to CECU for reimbursement. COTA denied CECU’s refund claim, reasoning in material part: “The retailers’ sales tax act imposes a sales tax upon the gross receipts from sales of goods and services taxable under the act. K.S.A. 2009 Supp. 79-3603. The tax is paid by the consumer and collected by the retailer (seller). K.S.A. 2009 Supp. 79-3604. ‘Gross receipts’ is defined by the statute as the total selling price. K.S.A. 2009 Supp. 79-3602(o). Sales or selling price means the total amount of consideration, including cash, credit, property and services, for which personal property or services are sold valued in money, whether received in money or otherwise, without any deduction for the cost of materials used, labor or service cost, interest, losses, all costs of transportation to the seller, all taxes imposed on the seller, and any other expense of the seller. K.S.A. 2009 Supp. 79-3602(ll)(l)(B). Enumerated in the act are specific exclusions from the definition of‘selling price’: (See K.S.A. 2009 Supp. 79-3602(ll)(3)), as well as various sales tax exemptions. No statutory provision specifically excludes or exempts the expenses at issue in this case. Thus, under the maxim expressio unius est esclusio alterius, we must conclude that it was the intent of the legislature not to exclude or exempt these expenses. See In re Application of Lietz Construction Co., 273 Kan. 890, 911, 47 P.3d 1275, 1290 (2002). “We agree that the ultimate consumer of the travel was JHA and JHA paid sales tax on tire travel services. In the present case, however, the travel services are not being resold to CECU. A flaw in CECU’s theory is that CECU is not being taxed on travel services as the consumer of the travel. The sales tax at issue here has been levied upon the total amount of consideration given by CECU in the transaction with JHA for providing die upgrades. In diis sale transaction between JHA and CECU, we find drat the travel is properly considered an expense incurred by the seller. Instead of contracting for a definite total selling price, die parties made the selling price, or total amount of consideration given by the purchaser, dependent in part on the expenses of die seller by requiring die reimbursement of the expenses. “Upon review of the uncontroverted facts presented, we find that die reimbursement of die seller’s travel expenses was part of the total amount of consideration given by CECU in the transaction for which die taxable goods and services were sold by JHA. Although the expense reimbursement was separately itemized on die invoices, the selling price must include ‘die total cost to the consumer without any deduction or exclusion for die cost of die property or service sold, labor or service used or expended, materials used, losses, overhead or any other costs or expenses, or profit, regardless of how any contract, invoice or odier evidence of the transaction is stated or computed, and whether separately billed or segregated on the same bill.’ K.A.R. 92-19-46. See also K.S.A. 2009 Supp. 793602(H)(1). In the light of the inclusive character of the statute and regulation, die expense reimbursement was properly included in die gross receipts for purposes of the retailers’s sales tax. The reimbursement clearly falls within the taxing statutes. The language of die statute is not ambiguous and squarely includes the expense reimbursement in gross receipts.” After COTA denied CECU’s motion for reconsideration, CECU timely perfected its petition for judicial review to this court. Standards of Review COTA orders are subject to appellate review under the Kansas Judicial Review Act, K.S.A. 77-601 et seq. Recause the facts are not in dispute, the scope of review here is limited to whether COTA erroneously interpreted or applied applicable statutes. K.S.A. 2010 Supp. 77-621(c)(4). “This court’s review of statutory interpretation in tax appeal matters is unlimited, and an appellate court applies the same general rules that are applied in other contexts.” In re Tax Appeals of Genesis Health Clubs, 42 Kan. App. 2d 239, 242, 210 P.3d 663 (2009), rev. denied 290 Kan. 1094 (2010). Interpretation of a statute is a question of law over which appellate courts have unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009). Kansas appellate courts no longer give deference to an agency’s interpretation of a statute and, therefore, have unlimited review. Saylor v. Westar Energy, Inc., 292 Kan. 610, 614, 256 P.3d 828 (2011); In re Tax Exemption Application of Kouri Place, 44 Kan. App. 2d 467, 471, 239 P.3d 96 (2010). In this case, the parties disagree as to whether the tax statutes in this case are to be construed in favor of or against CECU. The taxpayer argues that the issue presented in this appeal is the imposition of Kansas retailers’ sales tax, not an exemption, and therefore the statutes should be construed in the taxpayer’s favor, citing In re Tax Appeal of Harbour Brothers Constr. Co., 256 Kan. 216, 223, 883 P.2d 1194 (1994). The Kansas Department of Revenue (the Division of Taxation or Division) argues that CECU seeks a refund, citing our Supreme Court, which has stated that “[i]n construing tax statutes, refund provisions are construed strictly against the entity seeking a refund. The burden of proof is on the person asserting a claim for refund to bring himself or herself within the refund statute.” In re Tax Appeal of Ford Motor Credit Co., 275 Kan. 857, 861, 69 P.3d 612 (2003). Here, however, while CECU seeks a refund, it does not do so under a statutorily enumerated refund provision. See Ford Motor Credit, 275 Kan. at 862-63. Rather, CECU’s claim is that JHA’s travel expenses are not taxable to it as part of JHA’s gross receipts. Therefore, this court is “interpreting a statute imposing a tax,” not one of exemption or refund, and must follow the rules of strict construction. See In re Tax Appeal of Atchison Cablevision, 262 Kan. 223, 227-28, 936 P.2d 721 (1997). “This rule is, of course, subservient to the fundamental rule of statutory construction which requires that the purpose and intent of the legislature govern.” In re Tax Appeal of Collingwood Grain, Inc., 257 Kan. 237, 246, 891 P.2d 422 (1995). When courts are called upon to interpret statutes, we begin with the fundamental rale that we must give effect to the intent that the legislature expressed through the plain language of the statutes, when that language is plain and unambiguous. See State v. Valladarez, 288 Kan. 671, 675-76, 206 P.3d 879 (2009). An appellate court’s first task is to ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning. State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009). Only if the statutory language is not plain and unambiguous are the courts called upon to resort to canons of statutory construction or consult legislative history. See Valladarez, 288 Kan. at 675-76; In re Tax Exemption Application of Mental Health Ass’n of the Heartland, 289 Kan. 1209, 1211, 221 P.3d 580 (2009). Did COTA Err in Granting Summary Judgment Against CECU on Its Refund Claim? At first blush, COTA’s approach to the issue framed is quite seductive. If we turn to the statutory framework to determine whether JHA’s travel expenses when reimbursed were a part of gross receipts from CECU, it appears they are part of a taxable transaction. After all, the phrase “gross receipts” is defined as “the total selling price” (K.S.A. 2010 Supp. 79-3602[o]), and “total selling price” is defined as “total amount of consideration . . . without any deduction for ... all taxes imposed on the seller.” K.S.A. 2010 Supp. 79-3602(ll)(l)(B). Thus, die Division of Taxation suggests that taxes paid by a retail seller are not and cannot be deducted when there has been a sale at retail. The Division urges our consideration of this hypothetical: If a retailer of clothes has paid sales tax when purchasing the racks for display of its clothes, that tax paid certainly is not subject to deduction before application of Kansas sales tax when the clothes are sold at retail. But that is not what we have here. Although JHA sold computer upgrade goods and services to CECU, the travel expenses were not “sold” but rather reimbursed by CECU. The tax imposition provisions in question are K.S.A. 2010 Supp. 79-3603(a) and (q), which provide, respectively, that there is levied and to be paid retail sales tax on: “(a) The gross receipts received from the sale of tangible personal property at retail within this state; “(q) the gross receipts received for the service of repairing, servicing, altering or maintaining tangible personal property which when such services are rendered is not being held for sale in the regular course of business, and whether or not any tangible personal property is transferred in connection therewith.” So, again we examine the “gross receipts” definition and find that “ ‘gross receipts’ means the total selling price or the amount received as defined in this act, in money, credits, properly or other consideration valued in money from the sales at retail within this state.” (Emphasis added.) K.S.A. 2010 Supp. 79-3602(o). And total “selling price” means “the total amount of consideration, including cash, credit, property and services, for which personal property or services are sold.” (Emphasis added.) K.S.A. 2010 Supp. 79-3602(h)(1). Thus, the real question before us is whether the reimbursement of travel expenses of JHA was part of the consideration “from [JHA’s] sale at retail” of computer upgrade goods and services or part of the consideration “for which [such] property or services [were] sold.” We conclude they were not because they were not in any way sold at retail, nor were they a part of the sale of goods and services, nor were they part of the selling price of the goods and services. They were, in fact, merely a reimbursement of an associated cost incurred by the seller. The Division stipulated that these costs were “reimbursed” rather than sold, were invoiced separately, and were consumed by JHA, not by CECU. Fundamental to Kansas sales taxation is the principle that sales tax is to be paid by the ultimate consumer or user. See K.S.A. 2010 Supp. 79-3604. Our appellate courts have consistently held that no article of taxable goods or services should have to cany more than one sales tax. “The basic principle [is] that a sales or use tax is to be paid only once on any particular item and that payment is to be made by the ultimate consumer. . . . “ ‘There is one basic principle about our sales tax act. It is that the ultimate consumer should pay the tax and no article should have to carry more than one sales tax. . . . When the baker buys a new oven or the shoemaker a new machine or the shirtmaker a new sewing machine, he pays a sales tax on these purchases because they are the ultimate consumers, the title has come to rest, no further transfer of title is contemplated.’ ” In re Appeal of K-Mart Corp., 238 Kan. 393, 397, 710 P.2d 1304 (1985) (quoting Southwestern Bell Telephone Co. v. State Comm’n of Revenue, 168 Kan. 227, 233, 212 P.2d 363 [1949]). See also Consumers Co-operative Ass’n v. State Comm. of Rev. & Taxation, 174 Kan. 461, 256 P.2d 850 (1953) (ultimate consumer should pay the tax and no article should carry more than one sales tax); R.L. Polk & Co. v. Arnold, 215 Kan. 653, 657, 527 P.2d 973 (1974); In re Tax Appeal of Derby Refining Co., 17 Kan. App. 2d 377, 385, 838 P.2d 354 (1992), rev. denied 252 Kan. 1092 (1993); Kansas Power & Light Co. v. Aarens, 16 Kan. App. 2d 620, 622, 827 P.2d 74 (1992). And just as the baker, shoemaker, and shirtmaker do not seek reimbursement of these costs and cannot directly collect from the purchasers of bread, shoes, or shirts such sales taxes paid, JHA cannot be expected to collect sales tax from CECU when its travel expenses are invoiced for reimbursement. If JHA had chosen to increase the price of its goods and services so as to recover these costs rather than seek mere reimbursement, this would be a different transaction for sales tax purposes. As we perceive the apparent contract between JHA and CECU, the transaction was constructed to be a sale of goods and services and a reimbursement of necessary travel expenses. The Division argues that its regulations make the transaction construction a distinction without a difference, citing K.A.R. 92-19-46(a), which includes as a part of the definition of selling price: “(2) the total cost to the consumer without any deduction or exclusion for the cost of the property or service sold, labor or service ... expended, materials used, losses, overhead or any other costs or expenses, or profit, regardless of how any contract, invoice or other evidence of the transaction is stated or computed, and whether separately billed or segregated on the same bill.” We are unimpressed by this argument, however, for several reasons. First, we note that the statute expressly excludes from taxation “any taxes legally imposed directly on the consumer that are separately stated on die invoice ... given to the purchaser.” K.S.A. 2010 Supp. 79-3602(ll)(3)(C). Second, the mere definition of selling price within the Department’s regulation cannot change the fact that the imposition statute makes taxable only the gross receipts for the service rendered, not for reimbursed travel expenses where the seller is the ultímate consumer of the travel. And, finally, the statutory definition of “selling price” means die consideration “for which the . . . services are sold,” K.S.A. 2010 Supp. 79-3602(11)(1), and cannot fairly be interpreted to include travel costs subject only to reimbursement but not sold. To the extent the regulation attempts to expand imposition authority beyond statutory authority, it has no operative effect. See Wagner v. State, 46 Kan. App. 2d 858, Syl. ¶ 4, 265 P.3d 577 (2011), rev. denied 294 Kan. 948 (2012). Although authority from other jurisdictions in this context has limited value, we note that other jurisdictions have applied similar reasoning to reach similar conclusions. See, e.g., Dining Management Services, Inc. v. Commissioner of Revenue, 404 Mass. 335, 534 N.E.2d 1178 (1989) (expense reimbursement of meals to clients’ employees were not retail sales of meals); M & M/Mars, Inc. v. Com., 162 Pa. Commw. 375, 639 A.2d 848 (1994) (fee paid for operation of cafeteria for use by employees does not involve transfer of ownership of tangible personality. The Division expressed its concern at oral argument that if we embrace CECU’s position here, there would be untold impact beyond this case potentially affecting all transactions subject to Kansas retailers’ sales tax. We respectfully disagree. Our opinion is limited to those circumstances where a goods or services contract makes provision for reimbursement of travel expenses consumed by, taxable to, and taxes paid by the seller, with those expenses separately invoiced to the party reimbursing same. We do not perceive this transaction construction to be employed or employable in the majority of sales transactions subject to sales taxation in Kansas. Moreover, to the extent our conclusion may be applicable to other transactions, the Division’s argument is irrelevant here and more aptly made to the legislature. We have simply construed and applied the applicable statutory provisions. In summary, we have found no ambiguity in the statutoiy language as it applies to this case. Quite simply, there were no retail sales involving the travel expenses, so no retail sales tax may be applied to them — those taxes already having been fully paid by the end consumer of those expenses as stipulated by the parties. But even if the statutes were ambiguous and somehow capable of being construed as argued by the Division, the rule of strict construction of tax imposition statutes must favor the taxpayer. See Harbour Brothers Constr. Co., 256 Kan. at 223. Based upon the lack of unequivocal imposition authority for retail sales tax to be collectable on travel expenses and associated sales tax already paid by the vendor and separately invoiced to a purchaser of taxable goods and services for mere reimbursement, any sales tax paid is subject to refund. Accordingly, we must reverse the Court of Tax Appeals and remand with directions to grant the refund application of Cessna Employees Credit Union. Reversed and remanded with directions.
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Marquardt, J.: In 2000, the law firm of Turner and Turner and its principals, Dan and Phillip Turner (Turners), obtained a default judgment in Shawnee County District Court in a contract action against former clients who are members of the Steele family and various Steele family businesses (Steeles). The Turners had their judgment transcribed in the Greeley County District Court in June 2000. After filing several affidavits of renewal, in 2010 the Turners filed a praecipe in Shawnee County District Court for a writ of special execution seeking to enforce their 2000 judgment. The writ directed the Greeley County Sheriff to attach several parcels of real property located in Greeley County and to commence a sheriff s sale of the attached real property. Following issuance of this writ, First Tribune Insurance Agency, Inc. and Western Plains Funds, Inc. (Landowners), who had redeemed and/or purchased the real property following a mortgage foreclosure sale in 2002, filed motions to set aside (stay) tire scheduled sheriff s sale and to intervene until their Greeley County quiet title action against the Turners was resolved. The Landowners appeal the district court’s Order dismissing their motions for lack of standing and from the order confirming the sheriffs sale. The Landowners also appeal from tire Shawnee County District Court’s refusal to extend the post-sale redemption period until the merits of the Greeley County quiet title action was resolved. The Turners cross-appeal, contending the Landowners are prohibited from challenging the denial of the Landowners’ motion to intervene in the Shawnee County case under the doctrine of invited error. The Steeles have been the subject of litigation in state and federal district courts in Kansas since at least the late 1980’s. See, e.g., In re Steele Cattle, Inc., Nos. 94-1250 through 1253-PFK, 1996 WL 42073 (D. Kan. 1996) (unpublished opinion); Steele v. Guardianship & Conservatorship of Crist, 251 Kan. 712, 714-16, 840 P.2d 1107 (1992). This appeal concerns the title to Greeley County real estate that once belonged to the Steeles. Facts In October 1999, John Hancock Mutual Life Insurance Company filed a mortgage foreclosure action in the United States District Court of Kansas in a case captioned John Hancock Mutual Life Ins. Co. v. Steele, Case No. 99-1406-JTM. The defendants in the lawsuit were various members of the Steeles. John Hancock sought to foreclose mortgages on property the Steeles owned in Greeley County, Kansas. See also John Hancock Life Ins. Co. v. Steele, No. 90,943, 2004 WL 794532 (Kan. App. 2004) (unpublished opinion) (discussing federal foreclosure case in a different dispute), rev. denied 278 Kan. 845 (2004). At the time the federal foreclosure action was filed in 1999, John Hancock filed a notice of its pending action in Greeley County as a lis pendens notice under 28 U.S.C. § 1964 (1994) and Kansas law. In April 1999, the Turners filed a civil lawsuit in Shawnee County, Case No. 99-CV-544 against the Steeles and their businesses. The Turners claimed die Steeles hired them to provide legal services in various civil and bankruptcy matters between 1988 and 1998. Under the terms of their employment contract, the Turners alleged the Steeles still owed them approximately $560,000. After the Steeles failed to respond to the lawsuit, the Turners obtained a default judgment in excess of $632,000. The court filed its journal entry on May 17, 2000. The Turners assert that their judgment was transcribed in Greeley County, Case No. 00-C-09, on or about June 26, 2000. Meanwhile, John Hancock’s federal foreclosure action proceeded to a default judgment in that case on May 31, 2001. John Hancock filed a notice of the final judgment in Greeley County in Case No. 01-C-10 within 2 weeks. On July 13, 2001, the United States District Court for Kansas issued a praecipe for an order of sale of the real property identified in the John Hancock foreclosure proceeding and directed the Greeley County Sheriff to conduct a sale of four separate parcels of real estate. Notice of the praecipe for tire sale was mailed to various attorneys, members of the Steele family, and various other individuals and businesses. One of the attorneys who was sent the notice was Jim Miles of Garden City, Kansas. A sheriff s sale of the real estate was held in January 2002. Of relevance here, the property identified as Count I property was described as: “Southeast Quarter (SE/4) of Section Seventeen (17), Township Sixteen (16) South, Range Forty (40) West of the 6th p.m., except a tract containing 2.68 acres, more or less, described as follows: Commencing at a point 50 ft. west and 30 ft. north of the southeast comer thereof, thence West 395 ft., thence North 295 ft., thence East 395 ft., thence South 295 Ft. to the point of beginning; “West Half (W/2) of .Section Ten (10), Township Seventeen (17) South, Range Forty-one (41); “Southwest Quarter (SW/4) of Section Two (2), Township Seventeen (17) South, Range Forty-two (42); “Northeast Quarter (NE/4) of Section Six (6), Township Nineteen (19) South, Range Forty-two (42); and ‘West Half (W/2) of Section Twenty-four (24), Township Nineteen (19) South, Range Forty-three (43), all West of the 6th P.M.” The real estate identified as Count II property was described as: “The North Half (N/2) of Section Thirty-five (35), the West Half (W/2) of Section Twenty-five (25), and the Southeast Quarter (SE/4) of Section Twenty-five (25), all in Township Sixteen (16) South, Range Forty-two (42) West of the Sixth Principal Meridian.” At the 2002 sheriff s sale, John Hancock purchased the real properties identified as Count III and IV property. Two other parties purchased the real estate identified as Count I and II. In April 2002, the Greeley County District Court issued an order confirming the sheriff s sale in the John Hancock case. The court set a redemption period for the Count I property of 3 months and a redemption period for Count II property of 12 months. In May 2002, the rights to redeem the Count I property were assigned to Schulte Farms, Inc., Dennis L. Schulte, Charles H. Schulte, and Darvin Meurisse; the assignment was recorded in Greeley County. Shortly thereafter, these parties redeemed the Count I property and a sheriff s deed was issued to them. Several months later, Western Plains Funds, Inc. purchased the Count II property from the Schultes and Meurisse. In October 2002, the redemption rights to the Count II property were assigned to First Tribune Insurance Agency, Inc. The assignment was filed in Greeley County, and ultimately, First Tribune redeemed the Count II property. A sheriff s deed for the Count II property was issued to First Tribune in January 2003. In June 2004, the Turners, through attorney Jim Miles, obtained a writ of special execution from the Shawnee County District Court directing the Greeley County Sheriff to execute upon unrelated real estate in Greeley County, Kansas. At the Turners’ request, this writ was dissolved before the sheriff took action. On May 2, 2005, the Turners filed an Affidavit of Renewal of Judgment in Shawnee County Case No. 99-CV-544. In the affidavit, the Turners averred that except for approximately $2,300, their original judgment remained uncollected. In October 2005, the Turners, again through attorney Jim Miles, filed a writ of special execution from the Shawnee County District Court directing the Greeley County Sheriff to execute upon and sell specific real estate in Greeley County. Larry Steele was the owner of that real property. The real property was sold in a sheriff s sale to the Turners for $160,000. The Shawnee County District Court confirmed the sale, and a redemption period of approximately 11 months was set. Lance Steele timely redeemed this property, and his payment to the court later was paid out to the Turners. The Turners apparently took no further action to enforce their judgment against the Steeles until April 2010. At this time, the Turners filed an Affidavit of Renewal of Judgment in Shawnee County reflecting a judgment in excess of $1 million. Two days later, the Turners (no longer represented by Miles) filed a praecipe for writ of special execution in Shawnee County District Court. The Shawnee County District Court issued the writ, stating that the Turners’ judgment against the Steeles remained unsatisfied and “is a lien on [the Steeles’] real property.” The writ directed the Greeley County Sheriff to attach specified real estate in Greeley County. The order included the properties identified in the John Hancock foreclosure lawsuit as Count I and Count II properties; as noted above, these pieces of real estate had been redeemed and/or ultimately purchased by the Landowners. Although not included in the record on appeal, the district court’s appearance docket reflects that the writ was served on Steele family members, various Steele businesses, and Western Plains Funds, Inc. Shortly thereafter, the Landowners filed a motion in the Shawnee County case to set aside the writ of special execution, asserting they were the record owners of the real property and that they acquired title during prior foreclosure proceedings. The Landowners denied the Turners had an enforceable lien on the property. The Landowners also stated that they had filed a petition to quiet title in the real estate in Greeley County District Court, case No. 2010-C-3, under K.S.A. 60-601. Accordingly, the Landowners asserted that no sheriff s sale of the property should be conducted prior to the resolution of their quiet title action where the validity of the Turners’ hen would be determined. The Turners responded to the Landowner’s motion and objected to staying the sheriff s sale. The Turners attached copies of letters they sent to the Landowners for payment of the Steele’s judgment prior to seeking the writ. The Turners also contended their lien against the properties had never been extinguished. After filing their response to the Landowners’ motion to stay, the Turners filed a motion to strike the Landowners’ pleadings. The Turners asserted that the Landowners had not filed a motion to intervene under K.S.A. 60-224 and, therefore, they had no standing to file pleadings in the case. In an order filed May 19, 2010, the Shawnee County District Court denied the motion to stay the sheriff s sale. The court concluded the Landowners failed to “carry their burden” to justify a stay. The order was devoid of any factual findings or conclusions of law. A sheriff s sale was held in Shawnee County on May 20, 2010, where third parties purchased the Landowners’ property. The next day, the Landowners filed a motion objecting to the confirmation of the sheriff s sale. After describing the results of tire sale, the Landowners reiterated that they had filed a petition to quiet title against the Turners in Greeley County. The Landowners discussed the priority of the John Hancock foreclosure proceeding and cited K.S.A. 60-2414(k) claiming it bars a second sheriffs sale of the property. The Landowners argued that confirmation of the sheriff s sale of the property should not take place before resolution of the quiet title lawsuit, especially since they were not made parties to the Turners’ Shawnee County lawsuit prior to the execution order. In an amended pleading, the Landowners claimed that they have a reasonable basis to contest the Turners’ claims. The Landowners stated that Greeley County is the only county in which the disputed title to real property could be resolved. Several weeks later, the Turners filed a motion for an order to confirm the sheriff s sale and to pay out funds obtained from the sale. The motion requested that a sheriff s certificate of purchase be issued to the various buyers from the sale. In a subsequent trial brief, the Turners reiterated the basis for the attachment of their judgment lien and asserted that as purchasers at a foreclosure sale, the Landowners took the property with notice of the Turners’ unforeclosed lien. In further support of their position that the sheriff s sale should be stayed, the Landowners filed a motion asserting that proper venue for the resolution of the title claims was in Greeley County. Attached to tire motion were various documents from the federal foreclosure action and the 2002 sheriff s sale of the property. The Turner's again filed a motion to strike the Landowners’ pleading by asserting they had no standing to assert claims in the Shawnee County case. The Turners asserted that the Landowners never filed a motion to intervene under K.S.A. 60-224, and a motion to intervene was required in order for the Landowners to request any relief in the collection proceeding. The Landowners responded, arguing that their claim to title to the real estate gave them standing to seek a stay of the sheriff s sale and confirmation of tire sale. They asserted the fundamental issue to be resolved involved whether the Turner’s 2000 judgment lien — which was the basis for the execution and sheriff s sale — could be executed on the Landowners’ property; that issue could only be resolved in the Greeley County quiet title action. In a memorandum decision filed September 28,2010, the Shawnee County District Court granted the Turners’ motion to strike the Landowners’ pleadings, concluding they had no standing in the case unless and until they filed a motion to intervene under K.S.A. 60-224. Because the Landowners had no standing, tire court confirmed the sheriff s sale and found the Turners were “entitled to execution of their judgment lien.” Thereafter, the Landowners filed a timely motion to alter or amend the judgment, citing their right to be heard in the action and advising the court they had contemporaneously filed a motion to intervene. They asserted that it was erroneous for a court in Shawnee County to determine title to real estate in Greeley County. On the same date, the Landowners filed a motion to intervene in the Shawnee County lawsuit. The Landowners noted that the Turners never questioned their right to file motions in the collection proceeding until late in the proceedings. The Landowners noted that it would be illogical to hold that titled landowners would have no standing in a subsequent proceeding seeking to execute a judgment on their real estate. After additional briefing about standing and the Landowners’ right to intervene, the Shawnee County District Court issued its final memorandum and order denying the Landowners’ motion to intervene. The court reasoned that the Landowners did not satisfy the requirements of K.S.A. 60-224 because they did not claim an interest in the underlying claim in the case — the breach of contract claims of the Turners against the Steeles. The court then rejected the Landowners’ arguments that they had standing as a nonparty under First Nat’l Bank & Trust Co. v. Wetzel, 42 Kan. App. 2d 924, 219 P.3d 819 (2009), because Wetzel involved factually different claims and issues. The court did hold, however, that its order did not determine title to the real property in Greeley County; instead, the order only determined that the Turners properly followed the procedures to execute on their judgment lien. Because the court held that the Landowners did not have standing, it declined to rule on their motion to extend the period of redemption until the Greeley County quiet title action was resolved. The Landowners filed a timely notice of appeal from the Shawnee County District Court’s various rulings. Two timely amended notices of appeal were also filed. Standing On appeal, the Landowners contend that the Shawnee County District Court erred in finding they lacked standing to seek a stay of the sheriff s sale and/or confirmation of the same in a collection proceeding against property that they undisputedly have a colorable claim to ownership. The Turners, in response, contend that court was correct in finding tire Landowners lacked standing, as- setting they could only possess standing by timely intervening in the Shawnee County action. Standing is a jurisdictional question whereby a court determines whether a person has alleged such a personal stake in the outcome of the controversy as to warrant invocation of jurisdiction and to justify exercise of the court’s remedial powers on his or her behalf. Board of Sumner County Comm'rs v. Bremby, 286 Kan. 745, 750-51, 189 P.3d 494 (2008). Standing implicates the court’s jurisdiction to hear a case, and therefore, the existence of standing is a question of law over which an appellate court has unlimited review. Bremby, 286 Kan. at 751. As noted by the Kansas Supreme Court, the concept of standing is one of the “ ‘most amorphous concepts’ ” in the law. 312 Education Ass'n v. U.S.D. No. 312, 273 Kan. 875, 882, 47 P.3d 383 (2002) (quoting Harrison v. Long, 241 Kan. 174, 176, 734 P.2d 1155 [1987]). The concept of standing often is raised in constitutional challenges to statutes and ordinances. See, e.g., State v. Coman, 294 Kan. 84, Syl. ¶ 3, 273 P.3d 701 (2012) (an appellant does not have standing to argue that a statute is unconstitutional as applied to third parties in hypothetical situations); State v. Thompson, 221 Kan. 165, 172, 558 P.2d 1079 (1976) (stating rule drat unconstitutional governmental action can only be challenged by a person directly affected and such a challenge cannot be made by invoking tire rights of others). Similarly, standing issues have frequently arisen when a nonparty seeks to challenge the decision of an administrative agency that affects its property interests. See, e.g., Cochran v. Kansas Dept. of Agriculture, 291 Kan. 898, 908-10, 249 P.3d 434 (2011) (water rights owners have standing to challenge agency’s award of water permits to city that may impact their permits); Bremby, 286 Kan. at 763 (adjacent landowners possessed standing to challenge issuance of landfill permit to third party by agency). In this particular case, the context of standing involves the question of whether a nonparty may seek relief in the proceeding to which it was not made a party. This particular variation of standing tends to arise in just this type of proceeding — attempts to collect judgments. Below, the Landowners relied on Wetzel to establish that purchasers in a foreclosure proceeding had standing to assert claims when a sheriff s sale was challenged. In that case, First National Bank (FNB) filed a foreclosure against a mortgagor and others to foreclose on various mortgaged parcels that served as collateral for loans. The court granted judgment to FNB and a sheriff s sale was held. One of the parcels of real estate was purchased at the sheriff s sale by the Wetzels, who tendered the purchase price to the court. Sometime thereafter, the judgment debtor filed a motion to set aside the sheriff s sale and return the purchase money to the bidders; the court granted the motion. Thereafter, the Wetzels filed a motion for interest on their purchase money from FNB because of the unconfirmed sale. The issue became whether the Wetzels, as nonparties to the foreclosure proceeding, had standing to seek relief. The trial court concluded the Wetzels had standing and awarded them interest expenses from FNB. On appeal, FNB raised several challenges, including whether the Wetzels had standing to pursue any form of relief as nonparties to the foreclosure action. This court relied on numerous authorities holding that a purchaser at a sheriffs sale has “standing to raise issues in court concerning the subject matter of the sale. ” (Emphasis added.) Wetzel, 42 Kan. App. 2d at 927. In those cases, the Kansas appellate courts have held that purchasers at a sheriff s sale become parties and are entitled to file motions related to the sale, the confirmation of the sale, or other matters relating to the property. The courts recognize that purchasers have a right to be heard before any order is made affecting their rights. See, e.g., Sumner County Comm'rs v. Avis, 163 Kan. 388, 391, 183 P.2d 462 (1947) (purchaser at a sheriff s sale became a party and could appeal an order setting aside the sale); Cowdin v. Cowdin, 31 Kan. 528, 529, 3 P. 369 (1884) (same). Although recognizing the factual differences of the Wetzels’ claims for interest, this court found they had become parties as a result of their bid and had an interest in being heard on issues relating to the subject matter of the sheriff s sale. Based upon their bid and purchase, this court held the Wetzels had sufficient stake in tire outcome of the controversy to pursue their claim for interest expenses. Wetzel, 42 Kan. App. 2d at 928. The Supreme Court also has recognized that there could be statutory grounds for standing, but that there were also traditional grounds for standing. Cochran, 291 Kan. at 908-09. Here, the Landowners meet the traditional definition of persons with standing because they have “ ‘suffered a cognizable injury and that there is a causal connection between the injury and the challenged conduct.’ [Citations omitted.]” Cochran, 291 Kan. at 908. In the present case, the district court was correct that the facts of this particular case are distinguishable from Wetzel and the cases it relied upon. Here, the Landowners are not challenging proceedings directly involved in the 2002 sheriff s sale in which they purchased the Greeley County property. Instead, they are attempting to seek limited relief — a stay of proceedings — involving a different judgment creditor who is attempting to execute on the property they purchased. However, the reasoning still applies that as a title owner of real estate, they have a protectable interest in being heard before a judicial ruling, including a confirmation of a sheriff s sale, should be permitted to cloud their title to the land. Older Kansas cases have permitted nondebtors claiming an interest in property executed upon to seek relief prior to a sheriff s sale of their property. For example, in Yount v. Hoover, 95 Kan. 752, 755, 149 P. 408 (1915), the court held that the title owner of real property could file an action to enjoin sheriff s sale of his properly that had been executed upon for debt of another. Moreover, the tide owner was not required to name the judgment creditor as a party to the action. The Yount court also noted that the availability of an action to quiet tide did not bar the right to seek injunctive relief. Yount, 95 Kan. at 755-56. In Yount, the court held that even if the execution was invalid on its face, the owner’s right to advantageously sell or mortgage the property was impacted. Thus, the owner should not be required to wait for confirmation of the sheriff s sale and an action for ejectment before seeking relief. “This is not good sense. It is not good reason.” Yount, 95 Kan. at 760-61. If the Landowners would be entitled to seek injunctive relief against the Greeley County Sheriff, why would they lack standing to simply seek a stay of the sheriff s sale or confirmation in the county that issued the writ of execution? In this case, the Turners have never disputed that the Landowners have some claim to title to the real estate in dispute; they do not deny that an action to quiet title — where tire validity of the Turners’ judgment can be resolved — is pending. The Turners simply claim the Landowners have no standing to delay the sheriff s sale and confirmation in the case before the court. Holders of property rights are entitled to due process of law before their property is taken. See Hillhouse v. City of Kansas City, 221 Kan. 369, 374-75, 559 P.2d 1148 (1977) (finding prejudgment attachment statutes unconstitutional due to lack of adequate notice procedures and failure to grant party an opportunity to be heard “ "at a meaningful time and in a meaningful manner’ ”). A sheriff s deed is sufficient evidence of the legality of the sheriff s sale and vests title to the property in the purchaser under K.S.A. 60-2416. A party challenging the validity of a sheriff s deed has the burden of proving its invalidity. Thus, we find that the district court’s conclusion that its order confirming the sheriff s sale did not establish title missed the mark — the confirmation clearly affected the Landowners’ title in a significant manner. Title owners of real property have standing to request a delay of the sheriff s sale or a subsequent confirmation of the sale because such actions could result in a cloud on their title or otherwise negatively affect their title to the real property. See Cochran, 291 Kan. at 908. Intervention Under K.S.A. 60-224 The Landowners do not directly appeal from the district court’s holding that they do not qualify to intervene under K.S.A. 60-224. In fact, the Landowners seem to concede they do not meet the statutory standards because they cannot file a “pleading” as defined in K.S.A. 60-207. The Turners contend the only method by which the Landowners could have standing in the case was to intervene and they could have intervened but their motion to intervene was untimely. Because the Landowners do not appeal the district court’s denial of their motion to intervene, this issue (and the Turners’ cross-appeal regarding intervention) is not properly before the court. Moreover, as the cases discussed above hold, standing is not necessarily predicated upon statutory authority alone. K.S.A. 60-224(a) provides, in relevant part: “On timely application anyone shall be permitted to intervene in an action: “(2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and [the applicant] is so situated that disposition of the action may as a practical matter substantially impair or impede [the applicant’s] ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” (Emphasis added.) Intervention as a matter of right is subject to the same mixed determination of law and fact. K.S.A. 60-224(a). Landmark Nat’l Bank v. Kesler, 289 Kan. 528, 533, 216 P.3d 158 (2009). In such circumstances, this court reviews the factual findings made by the district court under a substantial competent evidence standard and reviews de novo whether those findings are sufficient to support its legal rulings. Lewis v. R & K Ranch, 41 Kan. App. 2d 588, 592, 204 P.3d 642 (2009). Substantial competent evidence possesses both relevance and substance and provides a substantial basis of fact from which the issues can be reasonably determined. Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 709, 216 P.3d 170 (2009). As noted by the Landowners, they had no “interest relating to the property or transaction that is the subject of the action” because the action was a breach of contract claim for payment of legal services. The real property was not the subject of the underlying action. Assuming this issue is properly before this court, the district court did not err in finding the standards of K.S.A. 60-224 were not met. However, the lack of the Landowners’ formal intervention did not deprive them of standing to seek the relief they were requesting. The Landowners were not challenging the Turners’ judgment against the Steeles; they were simply seeking a stay of execution of the judgment against their real property until a decision was made whether the judgment was valid against the real property. Stay of the Sheriff’s Sale and Confirmation of the Sale Because the Landowners have standing to participate in the execution proceeding, the final issue is whether the district court abused its discretion in denying their motion to stay: (1) the sheriff s sale; (2) the confirmation of the sheriff s sale; and (3) the expiration of the period of redemption. The Landowners claim the Shawnee County District Court had no jurisdiction to determine the validity of the Turners’ lien on their real property. They claim that decision could only be made by the district court in the county where the real estate is located. The Turners, on the other hand, assert that under K.S.A. 60-2202, only Shawnee County could issue tire writ of execution. Because of Kansas’ anachronistic statutory system, both parties are correct. However, the concepts of execution of liens and the validity of liens are legally distinct, and the jurisdiction (or more appropriately, authority) of the two district courts involved in tire dispute do not conflict. K.S.A. 60-2202(a) specifically provides that a judgment in a civil action becomes a lien on the debtor’s property located within the county where the judgment is “rendered.” The statute then provides a vehicle for the judgment creditor to “register” its judgment in the district court of another county, at which time the judgment becomes a lien on the debtor’s real property in tire registering county. However, the statute concludes that “[executions shall be issued only from the court in which the judgment is rendered.” (Emphasis added.) K.S.A. 60-2202(a). The Kansas Supreme Court has interpreted this final language literally. In Needham v. Young, 205 Kan. 603, 470 P.2d 762 (1970), the judgment creditor obtained a judgment in Edwards County and then registered it with Hodgeman County. The latter court then issued a writ of execution to the sheriff to seize the judgment debtor’s real estate in Hodgeman County. The property was sold at a sheriff s sale. The owners subsequently challenged the sale because tire sale price was inadequate and because the execution was wrongfully issued. The Kansas Supreme Court agreed the sale should be set aside, in part, because it was made in violation of the express provisions of the statute requiring the execution be issued from the court where the judgment was rendered. Needham, 205 Kan. at 606. Although Needham did not address the issue asserted by the Landowners here — that K.S.A. 60-601(b) requires that actions for the sale of real property must be filed in the county where the real property is located — the opinion explicitly interprets the authority of the “rendering court” to issue writs of execution. Still, the Landowners’ focus is not the issuance of the writ itself but the need to stay the execution process in order to determine the validity of the Turners’ lien against the property. Thus, the Landowners are correct that such an action must be pursued in Greeley County. See K.S.A. 60-601. Therefore, the question is whether, as a matter of comity and judicial economy, the district court abused its discretion in denying the Landowners’ motion to stay the sheriff s sale and confirmation of the sale. “The staying of proceedings in a state court pending determination of an action in a federal court is not a matter of right but rests on the rule of comity and involves the exercise of discretion, which will not be interfered with unless clearly abused. [Citations omitted.]” Henry v. Stewart, 203 Kan. 289, 293, 454 P.2d 7 (1969). We find that the comity principle applies when there are cases pending in different county courts within the state. A stay order does not terminate the action but merely postpones its disposition. Like a continuance, the question of staying an action is largely discretionary with the court. Henry, 203 Kan. at 293. Courts in other jurisdictions have recognized that disputes over priority or validity of liens or claims to property executed upon in a collection proceeding can be grounds for staying a sheriff s sale or confirmation of the same. See City of Easton v. Marra, 862 A.2d 170, 172-73 (Pa. Commw. 2004) (court in which an execution proceeding is pending has an inherent right to stay execution when it is necessary to protect the rights of a party); see also Wilmington Trust Co. v. Lucks, No. 98C-02-001 HDR, 1999 WL 743255, at *7 (Del. Super. 1999) (unpublished opinion) (stay of sheriff s sale issued until resolution of action asserting property in dispute was fraudulently conveyed); Courts have recognized that the ultimate control of the execution process, and the responsibility to see that the process is not abused, rests with the trial court. Unity Sav. Ass’n v. Am. Urban Sciences, 337 Pa. Super. 470, 477, 487 A.2d 356 (1984). The lawsuit to foreclose the mortgage on the Steeles’ real property was filed on October 6, 1999, in the United States District Court of Kansas. The Turners received default judgment against the Steeles on May 17, 2000; they transcribed their judgment against the Steeles in Greeley County on June 26, 2000. The judgment of foreclosure in the federal court case on the Steeles’ real property was entered on April 30, 2001. That judgment was filed in Greeley County on June 12, 2001. During oral argument, appellees’ counsel argued that the federal court foreclosure action that was the basis for the Greeley County quiet title action is not a foreign judgment. Under K.S.A. 60-3001, a foreign judgment “means any judgment decree or order of a court of the United States or of any other court which is entitled to full faith and credit in this state.” We hold that a judgment from a federal foreclosure lawsuit that is filed in a Kansas state court is a foreign judgment under K.S.A. 60-3001. On May 4, 2012, the Greeley County District Court entered an order finding: “8. Under K.S.A. 2011 Supp. 60-2414(k), real estate once sold upon order of sale shall not again be liable for sale for any balance due upon the judgment or decree under which it is sold, or any judgment or lien inferior thereto, including unadjudicated junior liens filed after the petition is filed to foreclose the senior lien against the real estate. “9. . . . [Wjhen the property was sold at the Greeley County Sheriff s sale and Defendant Turners failed to purchase or to exercise the redemption rights given to them under K.S.A. 2011 Supp. 60-2414(b) and (c), the property could not again be liable for sale for any balance due upon the inferior judgment lien they held. Why? Because the Turner Defendants’ judgment lien did not come into being until after the John Hancock foreclosure had been filed.” The Greeley County District Court granted judgment in favor of the Landowners and quieted their “title in and to the subject real estate.” However, these issues were not properly before the Shawnee County District Court and are only relevant to weighing whether staying the execution proceedings was appropriate. Here, the Landowners established legitimate grounds to stay the sheriff s sale and the confirmation of the sale pending resolution of the quiet title action. The Turners do not dispute the Landowners’ interest in the real property, only whether their judgment lien remained attached to the real estate. The Turners waited over 10 years, for reasons unexplained in the record, to execute on this real estate after obtaining their judgment. In addition, the Turners have not alleged that delaying the sale or confirmation thereof would have damaged their interests in any measurable fashion. Therefore, we find the Shawnee County District Court abused its discretion and erred in refusing to stay the sheriffs sale and refusing to rule on the subsequent requests to stay the confirmation and to extend the redemption period. The district court’s order striking the Landowners’ motions for lack of standing is reversed. Likewise, the court’s confirmation of the sheriff s sale is vacated. Reversed and vacated.
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McAnany, J.; Midwest Manufacturing, Inc., challenges the district court’s dismissal on jurisdictional grounds of their malicious prosecution suit against Wayne and Eileen Ausland and their attorney, Charles Oaldey. The district court dismissed the action, holding that the defendants lacked the necessary minimum contacts with Kansas to satisfy constitutional due process requirements for Kansas to exercise personal jurisdiction over them. We agree. Midwest will have to go to California to pursue the Auslands and their lawyer for malicious prosecution. Midwest makes two arguments to support its claim of minimum contacts with Kansas: (1) the Auslands and Oaldey submitted to personal jurisdiction by “intentionally filing a lawsuit in California that was calculated to cause injury to Midwest in Kansas,” and (2) the Auslands submitted to personal jurisdiction because they transacted business in Kansas. Midwest is a Kansas corporation that manufactures and sells animal feed supplements. Wayne and Eileen Ausland are residents of California. Charles Oaldey is an attorney who resides and practices in California. The Auslands own a ranch in California where they raise llamas and alpacas. Beginning in 1993 and continuing periodically through 2004, the Auslands placed telephone orders with Midwest for the purchase of feed supplements used to feed their animals. The product was shipped from Kansas to the Auslands in California. Presumably the Auslands sent Midwest a check for the product, but there is no indication that the Auslands had any other contact with Kansas in the course of purchasing product from Midwest. In 2008, the Auslands, represented by attorney Oakley, sued Midwest in California, claiming Midwest’s feed supplements caused the death of a number of their animals. They claimed Midwest engaged in unlawful and deceptive business practices, committed deceit by concealment, violated the California Business and Professions Code, breached express and implied warranties, was liable for negligence and negligent misrepresentation, and was strictly liable. They sought compensatory and punitive damages, attorney fees, interest, and costs. Midwest was served with California process in Kansas. It hired Kansas counsel to defend the California action. Midwest answered and in due time moved for summary judgment. The California court granted the motion; entered judgment against the Auslands; and assessed costs, but no attorney fees, against them. Midwest was required to pay its own Kansas counsel for defending the action. In 2010, Midwest sued the Auslands and Oakley in Johnson County, Kansas, for malicious prosecution in instituting and pursuing the California action. The Auslands and Oakley moved to dismiss, claiming that the district court lacked personal jurisdiction over them. The district court sustained their motion and dismissed the case. Following an unproductive motion to alter or amend, Midwest appealed. Whether the Kansas court had personal jurisdiction over the Auslands and Oakley is a question of law over which our review is unlimited. See Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 165, 210 P.3d 105 (2009). In considering the issue we resolve all fact disputes in Midwest’s favor. Merriman v. Crompton Corp., 282 Kan. 433, 439, 146 P.3d 162 (2006). First, we must decide if the Kansas statutes or caselaw provide a basis for exercising jurisdiction over the defendants. If so, we then must decide whether a Kansas court exercising personal jurisdiction over the Auslands and Oakley complies with the due process require ments of the Fourteenth Amendment to the United States Constitution. See 282 Kan. at 440. Kansas Long-arm Statute Midwest asserts that the Kansas court had personal jurisdiction over the defendants pursuant to subsections (1)(A), (1)(B), and (1)(E) of the Kansas long-arm statute, K.S.A. 2010 Supp. 60-308(b). The relevant provisions are as follows: “(b) Submitting to jurisdiction. (1) Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the following acts, thereby submits the person and, if an individual, the individual’s representative, to the jurisdiction of the courts of this state for any claim for relief arising from the act: (A) Transacting any business in this state; (B) committing a tortious act in this state; (E) entering into an express or implied contract, by mail or otherwise, with a resident of this state to be performed in whole or in part by either party in this state.” The Kansas long-arm statute is intended to be broadly construed to reach the full extent permitted by the Due Process Clause. Kluin v. American Suzuki Motor Corp., 274 Kan. 888, 894, 56 P.3d 829 (2002). The Kansas long-arm statute specifically requires that the transaction of business or the commission of the tortious act must be connected to the cause of action in question. 274 Kan. at 897-99. Midwest claims that the Auslands and Oakley are subject to the jurisdiction of the courts of Kansas under K.S.A. 2010 Supp. 60-308(b)(1)(B) because they committed a tortious act in Kansas by filing a lawsuit in California that caused damages to Midwest in Kansas. Under Kansas law, “committing a tortious act in this state” is broadly construed under the long-arm statute to include tortious acts performed outside the state which cause injury in Kansas to a Kansas resident. Taylor v. Phelan, 912 F.2d 429, 432 (10th Cir. 1990); Volt Delta Resources, Inc. v. Devine, 241 Kan. 775, 778, 740 P.2d 1089 (1987); Ling v. Jan's Liquors, 237 Kan. 629, 633, 703 P.2d 731 (1985); see Wegerer v. First Commodity Corp. of Boston, 744 F.2d 719, 727-28 (10th Cir. 1984). It makes no difference whether the injury was physical or economic. Merriman, 282 Kan. at 461. Here, íhe Auslands’ and Oakley’s actions caused Midwest to sustain damages in Kansas in the form of attorney fees incurred in defending the California action. Accepting Midwest’s allegations as true, and liberally construing the Kansas long-arm statute as we are required to do, Midwest has presented a prima facie case of personal jurisdiction under K.S.A. 2010 Supp. 60-308(b)(l). Therefore, we turn to the second step in the analysis, the due process requirements of the Fourteenth Amendment. Due Process In accordance with KLuin our due process analysis is made based on the unique facts of the case. In doing so, we apply the “minimum contacts” standard from Internat. Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), as follows: “When specific jurisdiction is asserted under the Kansas long arm statute, K.S.A. 60-308(b), due process requires that the nonresident defendant have certain minimum contacts with the forum in order for the exercise of jurisdiction to be constitutional. In considering whether the corporation’s riiinimum contacts meet this standard, courts should consider tire quality and nature of the defendant’s activity in determining whether it is reasoháble and fair to require defense in the forum, rendering jurisdiction consistent with traditional notions of fair play and substantial justice. Due process requires a demonstration that the nonresident defendant purposefully established minimum contacts with the forum state, thereby invoking the benefits and protections of its laws.” Merriman, 282 Kan. 433, Syl. ¶ 15. Here, Midwest contends that the Kansas court has jurisdiction over the Auslands and Oakley because they purposefully directed their activities against Midwest, a Kansas corporation, when they sued Midwest in California and caused Áíidwest to sustain damages in Kansas. The Due Process Clause of the Fourteenth Amendment to the United States Constitution sets tire outer boundaries of a state’s authority to proceed against a defendant. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 923, 131 S. Ct. 2846, 180 L. Ed. 2d 796 (2011). Due process requires that a defendant must have minimum contacts with the forum state such that the maintenance of the lawsuit does not offend traditional notions of fair play and substantial justice. Internat. Shoe Co., 326 U.S. at 316. This notion protects the liberty interest of not being subject to the binding judgment of a court in a forum with which the defendant has established no meaningful contacts, ties, or relations. 326 U.S. at 319. Individuals must have “fair warning” that a particular activity may subject them to the jurisdiction of a foreign sovereign. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985). The key question in our due process analysis is whether the defendants’ conduct and connections with Kansas were such that they should have reasonably anticipated being haled into court here. The fact that an actor can foresee causing injury in another state is not the standard. “Instead, The foreseeability that is critical to due process analysis ... is that tire defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.’ [Citation omitted.]” 471 U.S. at 474. The purposeful availment requirement ensures that a defendant will not be haled into court in a foreign jurisdiction solely as a result of random, fortuitous, or attenuated contacts. Merriman, 282 Kan. 433, Syl. ¶ 18. The mere allegation of injury to a resident caused by an out-of-state defendant does not necessarily establish minimum contacts. Rather, the court must undertake a case-by-case analysis regarding the extent to which the defendant purposefully sought to obtain the benefits of the forum state’s laws. Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1079 (10th Cir. 1995). A. Intentional Tort Midwest asserts that the facts now before us satisfy the standard for specific personal jurisdiction in cases involving intentional torts as set forth in Calder v. Jones, 465 U.S. 783, 104 S. Ct. 1482, 79 L. Ed. 2d 804 (1984). In Calder, the Hollywood actor Shirley Jones filed suit in California against the National Enquirer and its writer and editor for an allegedly libelous newspaper article. All the defendants were residents of Florida, and the article was written in Florida. The Court found that California had specific personal ju risdiction over the defendants because their actions were “expressly aimed at California.” 465 U.S. at 789. The Court reasoned that the defendants had worked on an article “that they knew would have a potentially devastating impact upon [Jones]. And they knew that the brunt of that injury would be felt by [Jones] in the State in which she lives and works and in which tbe National Enquirer has its largest circulation.” 465 U.S. at 789-90. The Court reasoned: “An individual injured in California need not to go to Florida to seek redress from persons who, though remaining in Florida, knowingly cause the injury in California.” 465 U.S. at 790. Midwest argues that under Colder, the Kansas court had specific personal jurisdiction over the defendants in this action for malicious prosecution once Midwest showed: (1) an intentional action expressly aimed at the forum state, and (2) knowledge that the injury would be felt in the forum state. See Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1072 (10th Cir. 2008). Midwest also relies on the fact that in the California suit the Auslands and Oakley perfected service of process over Midwest here in Kansas. It claims this is enough of a contact to justify now asserting jurisdiction over the Auslands and Oakley in Kansas. They rely on a number of federal district court cases for support. See 3H Enterprises, Inc. v. Dwyre, 182 F. Supp. 2d 249, 257 (N.D.N.Y. 2001); Schleit v. Warren, 693 F. Supp. 416, 422-23 (E.D. Va. 1988); Hamilton, Miller, Hudson & Fayne Travel v. Hori, 520 F. Supp. 67, 70 (E.D. Mich. 1981). To the contrary, the United States District Court for the District of Kansas has held that a law firm from another state does not submit to the jurisdiction of Kansas courts when a cause of action arises out of the firm’s representation of a Kansas resident in litigation taking place in other forums. Biederman v. Schnader, Harrison, Siegal & Lewis, 765 F. Supp. 1057, 1061 (D. Kan. 1991) (contact with Kansas during discovery phase of suit was not enough to confer jurisdiction even though the out-of-state attorneys made three trips to Kansas); see Paul v. Carroll, No. 00-4187-DES, 2001 WL 98602, at *6 (D. Kan. 2001) (unpublished opinion) (attorney’s limited contacts with Kansas did not give rise to personal jurisdiction when litigation was in an out-of-state forum). In Miner v. Rubin & Fiorella, LLC, 242 F. Supp. 2d 1043, 1044-46 (D. Utah 2003), employees of a Utah corporation brought suit in Utah against a New York law firm for malicious prosecution, intentional infliction of emotional distress, and abuse of process for having sued them in New York and serving them with process in Utah. The Miner court found that neither service of process in Utah in the prior suit nor the law firm’s business-related contacts with the Utah corporation established that the law firm had purposefully directed its activities at Utah. 242 F. Supp. 2d at 1047, 1050. Thus, the court granted the firm’s motion to dismiss for lack of personal jurisdiction. In Wallace v. Herron, 778 F.2d 391 (7th Cir. 1985), cert. denied 475 U.S. 1122 (1986), an Indiana resident sued three California lawyers in Indiana for malicious prosecution. The California lawyers had previously sued Wallace in Indiana. In the prior lawsuit, the California lawyers had conducted discovery and caused Wallace to respond to five complaints in Indiana. The court found that Indiana did not have personal jurisdiction over the California lawyers. The Wallace court stated that “it would be unreasonable to require the defendants to appear in Indiana to defend this suit on the basis of such attenuated contacts.” 778 F.2d at 394. The Wallace court also rejected a broad construction of Colder. The court concluded that the holding in Colder did not stand for the proposition that any plaintiff may hale any defendant into court in the plaintiff s home state as long as the defendant has committed an intentional tort against die plaintiff. 778 F.2d at 394. The Wallace court pointed out that in Calder, both the allegedly libelous stoiy and the resulting harm were tied to California. The Wallace court noted that its situation was distinguishable because the California attorneys’ only contact with Indiana was through service of process and other attenuated actions. Accordingly, the Seventh Circuit held that tire California attorneys took no actions that would create the necessary connection with Indiana for them to reasonably anticipate being haled into court there. 778 F.2d at 394-95! The Fifth Circuit has also held that allegations of malicious prosecution and abuse of process did not create personal jurisdiction over a defendant whose sole tie to the jurisdiction was through the service of process on the plaintiff in the earlier lawsuit. Allred v. Moore & Peterson, 117 F.3d 278 (5th Cir. 1997). The Allred court reasoned that even if there were damages and injuiy from these particular torts felt in the forum state, Mississippi, the requirements of due process prevent a Mississippi court from exercising jurisdiction. 117 F.3d at 285-87. Filing the California lawsuit created no meaningful contact with Kansas. To find personal jurisdiction over the defendants, the court must find that the defendants purposefully availed themselves to the laws of Kansas, the forum state. See Trujillo v. Williams, 465 F.3d 1210, 1219-20 (10th Cir. 2006); Far West Capital, Inc., 46 F.3d at 1079. Simply obtaining service of process over Midwest in Kansas is not enough to create specific personal jurisdiction over the defendants. In Calder, the defendants’ conduct was purposefully directed to defaming Shirley Jones and causing damage to her professional reputation while boosting the National Enquirers circulation in its major consumer market. Here, Midwest concedes in its brief: “Midwest’s damages are the expenses it suffered in defending that lawsuit.” The damages sustained by Midwest are expenditures incurred by eveiy defendant who resists a plaintiff s claim. Under Midwest’s theory, every plaintiff and every plaintiff s counsel bringing an action of any type against a nonresident defendant in the plaintiff s home forum is subject to being haled into court in a malicious prosecution action in the nonresident’s home forum if the nonresident defendant ultimately prevails in the original action. We find no support for so sweeping an application of the Kansas long-arm statute. B. Transacting Business in Kansas Midwest also claims the Auslands submitted to personal jurisdiction in Kansas by transacting business in Kansas: purchasing feed supplements from Midwest from 1993 to 2004. To establish specific jurisdiction based upon transacting business in the forum state, three factors must exist: (1) the nonresident must purposefully do some act or consummate some transaction in the forum state; (2) the claim for relief must arise from, or be connected with, the act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend the traditional notions of fair play and substantial justice. Kluin, 274 Kan. at 895. Midwest relies heavily on the decision in Burger King to support the claim that the Auslands transacted business in Kansas. Midwest does not explain how this theory extends jurisdiction to the California lawyer who sought to assert California causes of action for a California client in a California court. And with respect to the Auslands, Midwest does not explain how these consumers, who apparently are the end-users of Midwest’s products, have the same status as the Michigan Burger King business franchisees engaged in a commercial retail enterprise in Burger King. In any event, to exercise long-arm jurisdiction in Kansas over the California defendants based upon them having transacted business in Kansas, there must be evidence that the Auslands and their California lawyer availed themselves of the privilege of conducting business in Kansas to the extent that they, having enjoyed the benefits and protections of Kansas law, should have reasonably anticipated that they might have to submit to the burden of being sued in Kansas as well. We find no such evidence to justify extending the jurisdiction of the Kansas courts to these defendants. In making this determination, we consider “ ‘the quality, nature and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.’ ” Anderson v. Heartland Oil & Gas, Inc., 249 Kan. 458, 467, 819 P.2d 1192 (1991) (quoting White v. Goldthwaite, 204 Kan. 83, 460 P.2d 578 [1969]). Factors to be considered include: the burden on the defendant, the forum state’s interest in adjudicating the dispute, the plaintiff s interest in obtaining convenient and effective relief, the interest of the judicial system in securing the most efficient resolution of the controversy, and the shared interest of several states in furthering fundamental social policies. Loeffelbein v. Milberg Weiss Bershad Hynes & Lerach, 33 Kan. App. 2d 593, 605-06, 106 P.3d 74 (2005). Kansas’ exercise of jurisdiction over the Auslands on the basis of their position as consumers of Midwest’s feed supplements offends traditional notions of fair play and substantial justice. Although Kansas has an interest in protecting its resident corporations, Midwest assumed the risk of being subjected to suits in California when it chose to sell its products to California residents. The Auslands’ lawsuit was based on California law. Once service was obtained over Midwest in Kansas, all proceedings and discovery in the California suit apparently took place in California. That California evidence will be the basis for Midwest’s claim that the suit was maliciously prosecuted. In its Kansas petition Midwest cites extensively from the court’s findings in tire California case. Other than as a matter of convenience to Midwest, we find no other Anderson factor that supports Kansas exercising personal jurisdiction over these defendants. Traditional notions of fair play and substantial justice prevent Kansas from exercising jurisdiction over the Auslands and Oakley. Oakley did not engage in any activities in Kansas that would subject him to the jurisdiction of the State of Kansas based solely on his representation of the Auslands in the California lawsuit. And even though the Auslands’ contacts with Kansas were more extensive, at no time did the Auslands, as consumers of Midwest’s products, engage in any activities in Kansas that reveal an intent to invoke or benefit from the protection of Kansas law. Their products liability lawsuit against Midwest was filed and prosecuted entirely in California. Kansas’ interest in protecting its residents from tortfeasors is balanced by traditional notions of fair play and substantial justice. The Auslands had insufficient personal contacts with the State of Kansas to expose them to the jurisdiction of the Kansas courts. Accordingly, the district court correctly granted the Auslands and Oakley’s motion to dismiss. Affirmed.
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Buser, J.: The State of Kansas appeals the district court’s order suppressing a large quantity of marijuana seized by law enforcement officers after a traffic stop of a recreational vehicle (RV) driven by Trever Rhodes Wendler. We conclude that under the totality of the circumstances, the duration of the traffic stop was measurably extended after the purpose of the traffic stop — to investigate Wendler’s commission of a traffic violation — was concluded. Moreover, during tire investigation into the traffic violation, the officer did not gain reasonable suspicion of illegal drug activity necessary to lawfully extend the scope and duration of the detention. Finally, we conclude the unlawful detention of Wendler infected or tainted his consent to answer questions and to search the RV. Accordingly, we affirm the ruling of the district court suppressing the marijuana seized from the RV and the dismissal of charges against Wendler. Factual and Procedural Background As a result of the traffic stop, on November 10, 2009, the State charged Wendler with possession of marijuana with intent to sell (K.S.A. 2009 Supp. 21-36a05[a][4]) and failure to affix a drug tax stamp (K.S.A. 79-5201). Prior to trial, Wendler filed a motion to suppress the marijuana found hidden in the RV. During hearings on the motion, the State presented testimony from the arresting officer, Robert Youse of the Topeka Police Department, and a DVD of the vehicle stop taken from a camera mounted on Officer Youse’s patrol vehicle. At the conclusion of the hearings, the district court made numerous and detailed findings of fact and conclusions of law. The district court found Officer Youse stopped the RV for following another vehicle too closely on Interstate 70, in violation of K.S.A. 8-1523. Wendler was the driver, and the passengers were his girlfriend/fiancée and their infant son. During the stop, the officer noticed a “strong odor of air freshener” coming from the interior of the RV. The district court found that Officer Youse asked Wendler “some general investigatory questions regarding his travel mode plans, and asked for license and registration.” Wendler told the officer “he was driving a rented [RV], [and he] displayed a driver s license that had been issued from the State of Florida.” Wendler said he was driving from San Diego, California, to Florida. The district court surmised that “the minute [Officer Youse] heard rental, California, [and] Florida, ... he was going to . . . keep [the RV] as long as he possibly could.” Officer Youse took Wendler’s license and registration to his police vehicle “to run it.” According to the district court, tire officer sat “there for a good three, three and-a-half minutes not doing anything.” He then called “the information into dispatch.” The DVD shows this occurred about 6 minutes after the stop began. According to the district court, the dispatcher took “three minutes to come back negative,” so 9 minutes had elapsed since tire vehicle stop. Officer Youse then “just [sat] there and [did] nothing with the information, but wait[ed] another five minutes” before returning to the RV. From these facts, the district court inferred tire officer was “stretching tire stop out as long as he possibly [could],” even though the information was “all negative.” Upon approaching Wendler again, Officer Youse “initiate[d] another conversation . . . asking now about the rental papers” and about Wendler s employment. Wendler told Youse that he worked on boats. The district court concluded that Officer Youse “was obviously just trying to get additional information, which he got, but which . . . nonetheless . . . didn’t relate back to the reason for tire initial stop [and] didn’t really elicit any more information to support his reasonable suspicion.” The rental papers “were all in order,” with Wendler listed as “an authorized operator,” although “somebody else” had rented the RV for Wendler. When Officer Youse returned to his patrol vehicle, he learned from dispatch that Wendler “did have criminal convictions — or criminal activity of some sort in Florida and Colorado.” The DVD shows Officer Youse discussed Wendler s criminal histoiy with the dispatcher about 18 minutes after the stop. The district court found that Officer Youse then waited for another officer, who arrived in about “four to five minutes.” While waiting, Officer Youse “was not pursuing any information. He was not actually working on trying to verify anything or clear up anything.” The district court opined, “There was nothing inconsistent with [Wendler s] information,... it’s all believable,” and it “may be true.” Even after the other officer arrived, he and Officer Youse were not “engaged in any activities that were designed to dispel or confirm any sort of information relating to the traffic stop.” The total length of the stop at this point was “at least 25 minutes.” The district court made no findings regarding Officer Youse’s next actions, but the DVD shows the officer approached the driver’s door of the RV while the assisting officer approached the passenger’s side. The officers were both in uniform and armed. The emergency lights on Officer Youse’s patrol vehicle were illuminated. Officer Youse asked Wendler to leave the vehicle. The officer then accompanied Wendler to the back of the RV, where the assisting officer joined them. The district court found that Officer Youse made “the very standard attempt to effectuate a release from custody.” The officer advised Wendler that he was giving him a warning. Officer Youse then said, “[Tjhat’s all, or something to drat effect,” and Wendler turned towards the front of the RV to walk away. Then, according to the district court, “because ... it’s a highway and all that, Officer Youse has to call out pretty loudly, hey, Trev[e]r, would you come — and Mr. Wendler turns around, and he has to come back to Officer Youse to talk to him.” This exchange is audible on the DVD. The district court found that Officer Youse started “into the typical . . . questions. Do you have anything else, do you — you know, what’s up, all that.” The district judge characterized these as a “shotgun of questions, . . . you don’t have this, you don’t have that, you don’t have this, you don’t have that, well, can I search your [RV]?” Answering “hesitantly and reluctantly,” Wendler said, “[S]ure, but will this take very long?” Officer Youse said, “[N]o, just a few minutes.” The district court found that Officer Youse “direct[ed] Mr. Wendler back” to the patrol vehicle and “directed the removal of Mr. Wendler’s girlfriend and baby from the RV.” The three were then “secured” in the patrol vehicle. The district court found the search “did not take just a few minutes” and that Officer Youse was inside tire RV “for more than 15 minutes,” yet “couldn’t find anything.” Wendler approached the RV while Officer Youse was searching it. The conversation between the two men is audible on the DVD. Wendler first asked to retrieve a jacket. Officer Youse agreed to die request and then asked Wendler about his criminal history. Based on the DVD, this was the first time Officer Youse made such an inquiry — about 39 minutes into the stop. Wendler admitted to drug-related convictions in New Orleans, Colorado, and Florida. After about 4 minutes of questioning about his criminal histoiy and the circumstances surrounding the rental, Wendler returned to the patrol vehicle. Next, Officer Youse used an electric screwdriver to remove some panels from the inside of the RV. The district court made no findings on the actual discovery of the marijuana, but Officer Youse testified, “I took my screwdriver and took off the frame around the microwave and pulled the microwave out so you could see behind it.” He found 20 bundles of marijuana packed around the microwave. The DVD shows this discovery occurred about 46 minutes after the stop, and Wendler was arrested shortly thereafter. Based on these factual findings, the district court made several legal conclusions. First, tire district court determined that Officer Youse had probable cause to stop the RV for violation of K.S.A. 8-1523, following another vehicle too closely. This holding is not contested on appeal. Second, the district court found Officer Youse’s initial questioning of Wendler, the request for his driver’s license and registration, and the check for “wants and warrants” were lawful. This ruling is also not an issue on appeal. The district court rejected the State’s argument that Wendler’s travel route to Florida by way of Kansas was suspicious. “I do not find it is that odd to drive a northerly route,” tire district judge stated, adding, “[Tjhis case does not exhibit nearly the deviance in travel plans that other cases have upheld.” The district court reached a similar conclusion with respect to the rental status of the RV and the strong odor of air freshener inside the vehicle. According to the district court, these three circumstances, even in combination, did not “rise to the level that objectively would support reasonable suspicion, and [the district court was] quite cognizant that reasonable suspicion does not have to be much.” The district court also held that Wendler remained in custody after Officer Youse returned his driver’s license and documents along with a warning citation. It held at that time no “person . . . similarly situated objectively would have felt free to go, or was free to go.” The district court held diat Wendler remained in custody, along with his girlfriend and son, while Officer Youse was searching the RV. “They are not free to go. They — it is obvious from their conversations with tire officers then that they do not feel, nor do they have the ability to leave. They have been removed from the [RV and], secured in the [patrol vehicle].” Finally, the district court held Officer Youse’s search “exceeded the scope of the consent.” Pertinent to this finding, the district court focused on the length of time required to conduct the search and stated, “Wendler did say . . . well, will this take very long, I’m land of in a hurry, and [Officer] Youse clearly says, no, it will just take a few minutes.” The district judge then summarized her ruling: “So I find tiiat the length of die time that Mr. Wendler was detained was longer dran was necessary to . . . effectuate die purpose of die stop; that [Officer Youse] did not have reasonable suspicion to continue die detention for as long as he did after die rental papers had been presented showing that he was clearly an authorized person to possess and operate the [RV]; and last, that the search exceeded die scope of the consent — or that there was not a valid consent to the search.” The district court suppressed the marijuana and dismissed the case. The State filed a timely appeal. Was the Length and Scope of the Detention Reasonably Related to the Investigation of a Violation of K.S.A. 8-1523? On appeal, the State contends the district court erred in concluding drat Officer Youse measurably extended tire duration of the traffic stop beyond what was necessary to investigate the violation of K.S.A. 8-1523, following another vehicle too closely. In particular, the State asserts “the record does not contain substantial evidence to support a conclusion that [Officer] Youse measurably extended the stop.” Wendler counters: “The district court properly found that Officer Youse’s detention of [Wendler] for over 26 minutes, nearly 17 of which occurred after Officer Youse knew that [Wendler] had no wants or warrants/ exceeded the reasonable scope of a traffic stop . . . , thus violating his rights under the Fourth Amendment and § 15 of the Bill of Rights to the Kansas Constitution.” Our standard of review provides: '“When reviewing a motion to suppress evidence, an appellate court reviews the factual underpinnings of a district court’s decision for substantial competent evidence and the ultimate legal conclusion drawn from those facts de novo. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review. The State bears the burden to demonstrate that a challenged search or seizure is lawful.” State v. Morlock, 289 Kan. 980, Syl. ¶ 1, 218 P.3d 801 (2009). “A traffic stop may not exceed the scope or duration necessary to carry out the purpose of the stop. When conducting a routine traffic stop, a law enforcement officer may request a driver’s license and vehicle registration, conduct a computer check, and issue a citation.” State v. Thompson, 284 Kan. 763, Syl. ¶ 7, 166 P.3d 1015 (2007). Our Supreme Court clarified in Morlock that “ ‘[a]n officer’s inquiries into matters unrelated to tire justification for the stop do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.’ ” (Emphasis added.) 289 Kan. at 987 (quoting Arizona v. Johnson, 555 U.S. 323, 333, 129 S. Ct. 781, 172 L. Ed. 2d 694 [2009]). However, “[i]f no information raising a reasonable and articulable suspicion of illegal activity is found during the time period necessary to perform the computer check and other tasks incident to a traffic stop, the motorist must be allowed to leave without further delay or questioning unless (1) the encounter between a law enforcement officer and the driver ceases to be a detention, it becomes consensual, and the driver voluntarily consents to additional questioning or (2) during the traffic stop the officer gains a reasonable and articulable suspicion that the driver is engaged in illegal activity.” Thompson, 284 Kan. 763, Syl. ¶ 8. The State and Wendler agree that about 26 minutes elapsed from the beginning of the traffic stop until Officer Youse returned Wendler’s driver’s license and documents, gave him a warning citation, and shook his hand — presumably ending Wendler’s detention for the traffic violation. In reviewing this traffic stop we first consider whether Officer Youse “ ‘diligently pursued’ ” his investigation and the tasks associated with die traffic stop. See State v. Smith, 286 Kan. 402, 410, 184 P.3d 890, cert. denied 555 U.S. 1062 (2008). In this regard, “courts examine ‘whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.’ ” 286 Kan. at 410 (quoting United States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct. 1568, 84 L. Ed. 2d 605 [1985]). Whether a law enforcement officer was “deliberately stalling” is “a quintessential question of fact.” State v. Ofori, 170 Md. App. 211, 243, 906 A.2d 1089 (2006). The district court unquestionably found that Officer Youse was stalling from the veiy outset of the traffic stop. While different conclusions could be drawn, the district court’s factual finding is supported by the evidence. The DVD shows about 3 minutes elapsed after Officer Youse’s initial return to his patrol vehicle with Wendler’s driver’s license and registration papers until he contacted the dispatcher. During that time, the district court observed the officer sat in his patrol vehicle “not doing anything.” Three minutes later, the dispatcher returned with a “negative” report on Officer Youse’s request for any outstanding warrants or wants on Wendler. As the district court observed, once again, Officer Youse “just [sat] there and [did] nothing with the information, but wait[ed] another five minutes” before returning to the RV to ask Wendler for the vehicle’s rental papers. At this point, the traffic stop had lasted about 15 minutes, and the district court concluded Officer Youse was “stretching the stop out as long as he possibly can, even though the information that he has is all negative.” During Officer Youse’s second contact with Wendler there was a discussion about the rental documents and Wendler’s employment, but as the district court observed, the additional information “didn’t relate back to the reason for the initial stop.” In fact, the rental papers “were all in order,” with Wendler listed as “an authorized operator,” although “somebody else” had rented the RV for Wendler. Upon his return to the patrol vehicle, Officer Youse learned from the dispatcher that Wendler had criminal convictions or criminal activity in Florida and Colorado. This information was received about 18 minutes after the stop. Officer Youse tiren waited for another officer, who arrived in about 4 or 5 minutes. During this time it appears, as the district court concluded, that Officer Youse “was not pursuing any information. He was not actually working on trying to verify anything or clear up anything.” Moreover, upon the assisting officer’s arrival, it is apparent the officers were intent on searching the RV for drugs. Towards this end, a drug sniffing dog was requested about 21 minutes into the traffic stop. The State asserts “[n]othing in the record remotely suggests that [Officer] Youse was dilatory in his initial investigation.” But, as detailed earlier, there were several periods of time when Officer Youse was not diligently pursuing his work but appeared to be purposely extending Wendler’s detention. Importantly, the State elicited no substantive testimony from Officer Youse to justify any of these particular delays. On appeal, the State suggests a rationale for the delays, focusing on the 18 minutes which elapsed before Officer Youse received information from the dispatcher regarding Wendler’s out-of-state criminal history. Yet, it is unknown when Officer Youse made the request for Wendler’s out-of-state criminal history. And the State did not question Officer Youse about the criminal history check or establish its importance for an ordinary traffic violation case. Moreover, during his testimony, Officer Youse did not mention, let alone discuss the significance of, Wendler’s criminal history, even when asked to summarize the reasons “that you needed to search the RV?” On the other hand, Wendler’s counsel had a revealing exchange with Officer Youse during his cross-examination, “[Question:] . . . [At] the time you got the wants and warrants check back . . . and his driver’s license came clear, you had no further reason to detain [Wendler] on the traffic violation? [Answer:] That’s correct.” Officer Youse’s candid testimony on this point is important. It establishes that, from the officer’s viewpoint, the puqpose of the traffic stop — to stop, investigate, and prepare a warning citation to Wendler for violating K.S.A. 8-1523 — was fulfilled about 9 minutes after the traffic stop. With regard to this particular traffic stop then, any appreciable time in excess of 9 minutes may be considered an improper, measurable extension of the detention. See Thompson, 284 Kan. at 774. Of course, this presumes the officer did not obtain reasonable suspicion of unrelated illegal activity in the meantime or the driver did not voluntarily consent to continuation of the encounter. See Thompson, 284 Kan. 763, Syl. ¶ 5. These issues are discussed later in the opinion. We are persuaded that, under the totality of these circumstances, detaining Wendler significantly longer than the approximately 9 minutes necessary to fulfill the purpose of the traffic stop — to investigate Wendler’s violation of K.S.A. 8-1523 — was an impermissible violation of the Fourth Amendment to the United States Constitution. See United States v. Chaney, 584 F.3d 20, 26 (1st Cir. 2009) (a minute or two did not measurably extend a stop); Morlock, 289 Kan. at 999 (stop was not measurably extended by a handful of questions when “the entire stop took only 12 minutes”). The State admonishes us: “This court should resist imposing a bright-line time limitation that arbitrarily marks a stop of approximately 26 minutes outside the outer bounds of a permissible Terry stop. See Terry v. Ohio, 392 U.S. 1, 18, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The State’s advice is well taken, and our holding should not be misconstrued as establishing any one-size-fits-all, bright-line time limitation. Rather, our holding is based on the district court’s detailed factual findings in this unique case, the explicit testimony of Officer Youse regarding the length of time it took him to fulfill the initial purpose of the traffic stop, and the total time which elapsed until Officer Youse returned Wendler’s driver’s license, documents, and gave him the warning citation. Did Officer Youse Develop Reasonable Suspicion of Unrelated Criminal Activity During His Investigation of the Traffic Violation? The next question presented is whether the measurable extension of the traffic stop beyond the 9 minutes it took to fulfill the purpose of the traffic stop — to investigate the violation of K.S.A. 8-1523 — was justified by Officer Youse developing a reasonable suspicion of criminal activity unrelated to the traffic violation. In this regard, tire State relies on the following syllabus from Morlock: “An officer is not required to disregard information which may lead him or her to suspect independent criminal activity during a traffic stop. When the responses of the detainee and the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden the inquiry and satisfy those suspicions, graduating his or her responses to the demands of the situation.” 289 Kan. 980, Syl. ¶5. This syllabus refers to “suspicions,” not “reasonable suspicion.” It was based on text in Morlock where our Supreme Court cited two cases from the United States Court of Appeals for the Eighth Circuit, United States v. Barahona, 990 F.2d 412, 416 (8th Cir.1993), disapproved by United States v. Olivera-Mendez, 484 F.3d 505, 510 (8th Cir. 2007), and United States v. Pereira-Munoz, 59 F.3d 788, 791 (8th Cir. 1995). 289 Kan. at 996. An examination of these cases clarifies the syllabus. The “broaden the inquiry” language in Morlock came from Barahona. See 289 Kan. at 996. The Eighth Circuit eventually disapproved Barahona because it “appearfed] to say that merely asking an off-topic question during an otherwise lawful traffic stop violates the Fourth Amendment.” Olivera-Mendez, 484 F.3d at 510 (citing Muehler v. Mena, 544 U.S. 93, 125 S. Ct. 1465, 161 L. Ed. 2d 299 [2005]). An officer may, therefore, broaden the inquiry by asking off-topic questions during an otherwise lawful traffic stop. See Smith, 286 Kan. at 411-14 (discussing Mena and several Tenth Circuit Court of Appeals decisions). The length of the traffic stop comes into play with the second case cited in Morlock, Pereira-Munoz, for which our Supreme Court provided the following parenthetical summaiy: “When officers develop reasonable, articulable suspicion of criminal activity during a traffic stop, they have ‘ “ justification for a greater intrusion unrelated to the traffic offense’ ” ’ and are permitted “to graduate their responses to the demands of their particular situation.” ’ ” 289 Kan. at 996. Pereira-Munoz took the “graduate their responses” phrase from United States v. Place, 462 U.S. 696, 709 n.10, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983), where the United States Supreme Court rejected “a rigid time limitation” for Terry stops: “Such a limit would undermine the equally important need to allow authorities to graduate their responses to the demands of any particular situation.” See Pereira-Munoz, 59 F.3d at 791. Thus, under Morlock, officers may broaden the inquiry during a traffic stop to investigate their suspicions provided the traffic stop is not measurably extended. If that investigation produces reasonable suspicion of unrelated criminal activity, the traffic stop may be measurably extended commensurate with the particular circumstances. As the Eighth Circuit has recently stated: “ ‘A constitutionally permissible traffic stop can become unlawful . . . “if it is prolonged beyond the time reasonably required to complete” its purpose.’ [Citations omitted.] “ ‘To continue to detain a vehicle’s occupants after the initial stop is completed, the officer must have been aware of particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrant suspicion that a crime is being committed.’ [Citation omitted.]” United States v. Bracamontes, 614 F.3d 813, 816 (8th Cir. 2010). Turning now to the substance of the argument, the State maintains “there was enough to raise a reasonable suspicion while [Officer] Youse assessed the circumstances after stopping Wendler.” “Whether reasonable suspicion exists is a question of law and is reviewed de novo.” State v. Coleman, 292 Kan. 813, Syl. ¶ 4, 257 P.3d 320 (2011). Our Supreme Court has provided considerable guidance with regard to the analysis of reasonable suspicion: “Reasonable suspicion is a less demanding standard than probable cause and requires a showing of considerably less than a preponderance of the evidence, but the Fourth Amendment to the United States Constitution requires at least a minimal level of objective justification. The officer must be able to articulate more than an ‘inchoate and unparticularized suspicion or ‘hunch’ of possible criminal activity. Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000); [citation omitted], “The reviewing court does not ‘pigeonhole’ each factor as to innocent or suspicious appearances, but instead determines whether the totality of the circumstances justifies the detention. State v. DeMarco, 263 Kan. 727, 734-35, 952 P.2d 1276 (1998). The relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but whether a sufficient degree of suspicion attaches to particular types of noncriminal acts. United States v. Sokolow, 490 U.S. 1, 10, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989). The totality of the circumstances standard precludes a ‘divide-and-conquer analysis’ under which factors that are ‘readily susceptible to an innocent explanation [are] entitled to “no weight.” ’ United States v. Arvizu, 534 U.S. 266, 274,122 S. Ct. 744, 151 L. Ed. 2d 740 (2002). In considering the totality of tire circumstances, a reviewing court should employ common sense and the ordinary human experience and should accord reasonable deference to a law enforcement officer’s ability to distinguish between innocent and suspicious actions. United States v. Wood, 106 F. 3d 942, 946 (10th Cir. 1997); [citation omitted].” Coleman, 292 Kan. at 817-18. The State does not identify the critical point at which the investigation into the traffic violation ended and any meásurable extension of the detention began based on Officer Youse developing a reasonable suspicion of criminal activity. On the other hand, Wendler persuasively argues: “The reasonable suspicion in this case must be analyzed at the point where the stop should have terminated — 9:00 [minutes] on the video.” As discussed earlier, Officer Youse testified that some 9 minutes into the traffic stop there was no reason to further detain Wendler to enforce the traffic violation. In essence, the purpose of the traffic stop was fulfilled about 9 minutes after it began. Under the law, Officer Youse must have obtained or developed a reasonable suspicion of criminal activity unrelated to the traffic violation at about that point in time in order to measurably extend the traffic stop. As a result, we will consider only tiróse facts known to Officer Youse at about the 9-minute mark to determine if, at that time, he had reasonable suspicion to believe that Wendler was engaged in unrelated criminal activity. See Joshua v. DeWitt, 341 F.3d 430, 446 (6th Cir. 2003) (discounting criminal history information obtained after law enforcement officer had “already been detaining Petitioner without reasonable suspicion for quite some time”). The district court found that about 9 minutes into the traffic stop, Officer Youse knew (1) Wendler’s trip originated in California and would terminate in Florida, (2) the RV was a rental, and (3) there was a very strong odor of air freshener coming from the passenger compartment of the vehicle. These factual findings, which were supported by the officer’s testimony and the DVD, will be considered separately. With regard to Wendler’s route of travel, Officer Youse testified he was suspicious “they would be this far [north] if they were headed for Florida. It would be easier to take Interstate 40 across the lower states.” Both parties cite State v. DeMarco, 263 Kan. 727, 952 P.2d 1276 (1998) which involved a trip from Los Angeles to Florida, but in that case the defendant told the officer “they had stopped in Salt Lake City to visit relatives.” 263 Kan. at 729. Wendler apparently did not mention why he was on 1-70, and Officer Youse testified he did not ask Wendler about his reasons for traveling this particular route. Of course, “implausible or contradictory travel plans can contribute to a reasonable suspicion of illegal activity.” United States v. Zubia-Melendez, 263 F.3d 1155, 1162 (10th Cir. 2001). But Kansas is centrally located, and the United States Court of Appeals for the Tenth Circuit “has been reluctant to deem travel plans implausible — and hence a factor supporting reasonable suspicion-— where the plan is simply unusual or strange because it indicates a choice that the typical person, or the officer, would not make.” United States v. Simpson, 609 F.3d 1140, 1149 (10th Cir. 2010). Significantly, Officer Youse did not explain the basis for his suspicion regarding Wendler’s travel on 1-70 apart from the fact it was not the most direct route between the two states. On this limited record, the simple fact that Wendler could have travelled a more southerly interstate highway did not make his travel plans implausible and, therefore, suspicious. With regard to Wendler s use of a rental vehicle, Officer Youse did not explain why the use of a rental vehicle was suspicious. In Morlock, our Supreme Court cited United States v. Contreras, 506 F.3d 1031, 1036 (10th Cir. 2007), for the proposition that “[t]he mere use of rental vehicles, one-way or otherwise, has been considered as contributing to reasonable suspicion because they are ‘often used by narcotics traffickers.’ ” 289 Kan. at 995. But in Morlock, an officer testified “based upon his training and education” that drug couriers fly to a destination and rent a vehicle to carry the drugs. 289 Kan. at 995. The portion of Contreras quoted by our Supreme Court in Morlock also was based on the explicit testimony of an officer: “[The defendant] was driving a rental car— which [the officer] knew to be ‘often used by narcotics traffickers . . . [because] it can’t be seized.’ ” 506 F.3d at 1036. In the present case, however, the State did not provide any testimony regarding how the use of a rental vehicle under these circumstances was necessarily indicative of criminal activity — drug-related or otherwise. The State bore the burden of proof. See Morlock, 289 Kan. 980, Syl. ¶ 1. We will consider only those facts developed in the district court. “[B]ecause whether reasonable suspicion exists depends on the totality of the circumstances, a case-by-case evaluation is required.” State v. Moore, 283 Kan. 344, 359, 154 P.3d 1 (2007). For example, in United States v. Wood, 106 F.3d 942, 946 (10th Cir. 1997), another case cited by our Supreme Court in Morlock, 289 Kan. at 994, the Tenth Circuit held it was not suspicious for an unemployed painter to fly one way to California, rent a car, and drive back to Kansas. Of note, Wood does not mention any testimony from a law enforcement officer explaining why such travel would be suspicious. This kind of testimony is critical for a court in order to evaluate an officer’s observations “in terms as understood by those versed in the field of law enforcement.” State v. Thomas, 291 Kan. 676, Syl. ¶ 10, 246 P.3d 678 (2011). Finally, with regard to the odor of air freshener, the State elicited testimony from Officer Youse based on his “training and experience” why the “very, very strong” odor of air freshener was suspicious. The officer explained “it’s just common for people smuggling drugs to use air fresheners and different things to tiy to cover the odor of the drugs.” In this particular circumstance, the State provided a solid nexus between the officer’s observations and his suspicion of illegal drug activity based upon his knowledge, training, and experience. Our Supreme Court has acknowledged this particular nexus before, observing “a ‘masking agent,’ despite having legitimate retail purposes, may also be used to conceal drugs and certainly may be considered in the reasonable suspicion calculus.” Moore, 283 Kan. at 358. Yet, the Supreme Court also cautioned the “weight assigned to the odor . . . varies with the circumstances.” 283 Kan. at 358. On appeal, Wendler speculates that “it is highly likely that a family traveling in an RV with an infant who is not toilet trained would use, in fact need, air freshener.” We conclude that absent other suspicious facts, the strong scent of air freshener in the RV was of limited weight and insufficient by itself to establish reasonable suspicion of drug-related activity. See United States v. Villa-Chaparro, 115 F.3d 797, 802 (10th Cir. 1997). For its part, the State identifies other facts in support of its contention that Officer Youse had reasonable suspicion of Wendler’s criminal activity. For example, during or after the officer’s second conversation with Wendler (about 15 minutes into the traffic stop), he learned the RV was a third-party rental. It appears, therefore, that Officer Youse learned of this fact only after the purpose of the traffic stop had been fulfilled. Moreover, once again, the State did not elicit testimony from Officer Youse explaining why third-party rentals are suspicious. Thus, in the present case as in DeMarco, there was “no explanation in the record why existence of an absentee renter would suggest involvement in criminal activity.” See 263 Kan. at 741. Other suspicious factors noted by the State were also developed appreciably after the purpose of the traffic stop was fulfilled. Wendler’s criminal histoiy was reported some 18 minutes into the traffic stop. The State mentions the “expensive one-way rental,” but this was presumably shown on the rental agreement obtained at the 15-minute mark and Officer Youse mentioned it about 20 minutes into the detention. Similarly, a conversation about “Wendlers apparent lack of financial resources to repay” the rental (which is audible after Wendler entered the RV during Officer Youse’s search) occurred some 39 minutes after the start of the traffic stop. Given the totality of the circumstances known to Officer Youse about 9 minutes into the traffic stop — the route of travel, the use of a rental vehicle, and the strong odor of air freshener inside the RV — there was insufficient reasonable suspicion to materially extend the traffic stop to investigate drug-related criminal activity. Kansas Supreme Court precedent provides support for our legal conclusion. DeMarco, for example, featured not only a rental vehicle and travel from Los Angeles to Florida, but also inconsistent stories regarding travel plans, a nervous driver, evidence that 1-70 “is a major drug courier highway,” and “criminal record of some type on one or both of the defendants.” 263 Kan. at 730. Our Supreme Court affirmed suppression in a “close” case based on deference to the district court, which “heard the witnesses and observed their demeanor.” 263 Kan. at 741. In the present case, the evidence was weaker than DeMarco, and the district court came to a similar conclusion after considering Officer Youse’s testimony. Moore featured the odor of a masking agent, a fact not present in DeMarco, along with a vehicle registered to a third party and a driver who exhibited “severe nervousness” while carrying “little clothing” on a purported return trip to Maryland from Las Vegas for an army airborne reunion. 283 Kan. at 355. The district court denied suppression, specifically crediting the officer’s expertise in drug interdiction. Our Supreme Court affirmed in another “close” case, partially in “appropriate deference to the opinions of a particular law enforcement officer on the scene . . . .” 283 Kan. at 360. Once again, the evidence was weaker here, and the district court did not specifically credit Officer Youse’s expertise in drug interdiction. We are persuaded that Officer Youse only had an inchoate and unparticularized suspicion or hunch of drug-related criminal activity at the time the purpose of the traffic stop was fulfilled. At that time, however, the officer did not have reasonable suspicion to further detain Wendler to investigate drug-related criminal activity. Wendler s continued detention was, therefore, illegal. The district court’s factual findings provided substantial competent evidence to support its legal conclusion that, at the time the purpose of the traffic stop was fulfilled, Officer Youse did not possess reasonable suspicion to materially extend Wendler’s detention to investigate drug-related criminal activity. Did Wendler’s Consents to Additional Questioning and the Search of the RV Purge the Taint of the Illegal Detention? The State contends that if this court concludes there was an illegal detention, Wendler still consented to the search of the RV. The State also asserts “the voluntariness-of Wendler’s consent to search the RV and the factors establishing the reasonable suspicion to search the RV purged the taint of the illegal stop.” As a result, we next consider whether Wendler’s presumed consents to additional questioning and the search of the RV purged the taint of his illegal detention. “An unconstitutional seizure may infect or taint the consent to search as well as any fruits of tire encounter if the nature of the seizure renders the consent to search involuntary. [Citations omitted.] Conversely, a voluntary consent to search can purge the primary taint of an illegal seizure where the connection between the lawless conduct of law enforcement officers and the discovery of the challenged evidence has become so attenuated as to dissipate the taint. [Citations omitted.]” Smith, 286 Kan. at 419. The State bears the burden to prove “there was a break in the causal connection between the illegality and the evidence obtained as a result of it.” State v. Parker, 282 Kan. 584, 596, 147 P.3d 115 (2006). The existence of a causal break is a question of fact. See Smith, 286 Kan. at 420. Where the district court does not conduct the “taint analysis,” this court may do so “given a sufficient record on appeal.” State v. Martin, 285 Kan. 994, 1003, 179 P.3d 457, cert. denied 555 U.S. 880 (2008). Although the district court did not conduct a taint analysis, the record on appeal is sufficient because the DVD memorialized the relevant events. “Factors to be considered in determining whether consent purged the taint of an illegal detention are the proximity in time of the Fourth Amendment violation and the consent, intervening circumstances, and particularly the purpose and flagrancy of the officer s misconduct.” State v. Hayes, 35 Kan. App. 2d 616, Syl. ¶ 11, 133 P.3d 146 (2006). “No single factor is necessarily dispositive.” Martin, 285 Kan. 994, Syl. ¶ 4. There were two putative consents. The first was Wendler s consent to further questioning, and the second was his consent to allow the officers to search the RV. See State v. Diaz-Ruiz, 42 Kan. App. 2d 325, 341-42, 211 P.3d 836 (2009) (Malone, J., concurring). Wendler s consent to further questioning clearly was given in immediate temporal proximity to the illegal detention. Wendler’s detention continued as Officer Youse asked him to exit the RV and placed him between that vehicle and tire patrol vehicles. Officer Youse began asking Wendler numerous questions, such as if he had rented the RV, who paid for it, the name of the party who paid for it, how he knew that party, and whether his girlfriend was his wife or fiancée. While asking these questions Officer Youse slowly returned Wendler’s driver’s license and other papers. Only at the very end of this colloquy did Officer Youse advise Wendler that he was receiving a warning citation, explain it briefly, say, “Thanks a lot," and shake Wendler’s hand. Wendler then turned towards the RV and took a few steps. At the same time, Officer Youse pivoted back towards his patrol vehicle, but tire DVD shows this was not visible to Wendler, who was walking the other way. Officer Youse then called out, “Hey Trever.” Wendler stopped and started walking back towards the officers. Officer Youse asked, “Can I talk to you for a minute more?” Wendler said, “Yeah,” and Officer Youse stepped towards him as he continued the questioning. Only 2 seconds elapsed between Officer Youse’s parting comment, “Thanks a lot,” and his call, “Hey Trever.” This momentary pause in Officer Youse’s battery of questions “heavily favors” a finding that there was no attenuation of the illegal detention. See Diaz-Ruiz, 42 Kan. App. 2d at 339. We also do not perceive any intervening circumstances. “Examples of circumstances sufficient to create a discontinuity between the illegal stop and search include the presence of counsel, appearance before a magistrate, the issuance of Miranda warnings, telling the driver he is free to leave, and advising him of his right to refuse consent. [Citation omitted.]” United States v. Ramstad, 120 F. Supp. 2d 973, 980 (D. Kan. 2000). None of these intervening circumstances was present in this case. Officer Youse’s comment, “Thanks a lot,” was not as informative or definitive as advising Wendler he was free to leave or that he had a right to refuse consent to answer further questions or to permit the search of the RV. See State v. Thompson, 284 Kan. 763, 809, 166 P.3d 1015 (2007) (telling driver to have a nice day “was no unequivocal signal that he was free to go”). With regard to the third factor in the determination of whether Wendler’s consent purged the taint of an illegal detention, we could “certainly imagine worse abuses of police authority.” See State v. Grace, 28 Kan. App. 2d 452, 460, 17 P.3d 951, rev. denied 271 Kan. 1039 (2001). Yet, Officer Youse detained Wendler considerably longer than necessary for a simple traffic stop, as the officer forthrightly admitted below. The additional time spent detaining Wendler was clearly in preparation to obtain his consent in order to ask more direct, accusatory questions and search the RV for drugs. When the district court’s finding of stalling tactics is added, we are persuaded Officer Youse exploited “the unlawful conduct to get to the contraband.” See Martin, 285 Kan. at 1004. After obtaining consent to further questioning, Officer Youse began a “shotgun of questions,” as the district court described it. The officer asked Wendler if he had anything illegal in the RV, if he had been driving, if anyone else had been driving, and if he had anything illegal such as guns, marijuana, cocaine, or methamphetamine. Wendler denied possessing any illegal items. Officer Youse then immediately asked to search the RV. As the district court found and the DVD confirms, Wendler answered “hesitantly and reluctantly.” When Wendler indicated an unwillingness to wait, Officer Youse told him it would only take “a few minutes.” After Wendler agreed, Officer Youse twice directed him to step back towards the patrol vehicles. Notably, these events occurred only seconds after Wendler had agreed to answer further questions. The tone of Officer Youse’s questioning was more authoritative than it had been before. There were also no intervening circumstances, such as the officer advising Wendler of his constitutional right to refuse consent to the vehicle search. Similar to Wendlers consent to additional questioning, his putative consent to search was temporally proximate to the prior illegal detention, there were no intervening circumstances, and, as discussed earlier, the search of the RV was an exploitation of the illegality. Because the State has not shown a causal break between Wendlers illegal detention and his consent to additional questioning and to a search of the RV, the taint of the illegal detention was not purged. Accordingly, the district court did not err in granting the motion to suppress. See Smith, 286 Kan. at 420; Parker, 282 Kan. at 596. The State also argues that Officer Youse did not exceed the scope of Wendlers consent to search. This issue is moot, however, because the consent was tainted by the prior illegal detention. We decline to consider it. See Smith v. Martens, 279 Kan. 242, 244, 106 P.3d 28 (2005). Finally, the State briefly suggests that Officer Youse had probable cause to search the RV. The State does not cite any arguments below regarding probable cause, our review of the record did not locate any, and the district court made no findings of fact or conclusions of law regarding probable cause. As a result, we decline to consider the issue of probable cause for tire first time on appeal. See State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). Affirmed.
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Malone, J.: Georgia L. Howie appeals the district court’s decision granting summary judgment in favor of U.S. Bank, N.A. (U.S. Bank) on U.S. Bank’s mortgage foi'eclosure petition. Georgia claims that U.S. Bank is barred from foreclosing on the mortgage for two reasons. First, Georgia argues that the mortgage debt was extinguished because U.S. Bank had failed to demand payment on the promissory note, signed solely by her late husband, within the time prescribed under K.S.A. 59-2239(1) after her husband’s death. Second, Georgia argues that the promissoiy note and associated underlying debt were irreparably severed from the mortgage because the promissoiy note and the mortgage were held by separate entities. We reject each of Georgia’s arguments and affirm the district court’s judgment in favor of U.S. Bank. On September 20,2005, James W. Howie executed a promissory note (Note) to U.S. Bank in the amount of $151,600 plus interest. The Note was signed solely by James. That same day, James and his wife, Georgia Howie, executed a mortgage (Mortgage) granting a security interest in certain real property (Property) located in Ottawa, Kansas, to secure payment of the Note. Under the terms of the Mortgage, the Howies were named as “Borrower,” U.S. Bank was named as “Lender,” and Mortgage Electronic Registration Systems, Inc. (MERS) was named as the mortgagee “acting solely as a nominee for Lender and Lender’s successors and assigns.” The Mortgage stated: “Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this [Mortgage], but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this [Mortgage.]” James died on February 23, 2008, leaving Georgia as the surviving joint tenant with right of survivorship in the Property. At some point, Georgia stopped making payments on the underlying debt and by May 1, 2009, the Note was in default, a fact which Georgia candidly admits. On October 28, 2009, MERS assigned the Mortgage to U.S. Bank, and on November 10, 2009, U.S. Bank filed a petition to foreclose the mortgage. U.S. Bank later clarified that it was pursuing only its in rem remedy to foreclose the Mortgage against the Property and that it was not seeking a personal judgment against Georgia under the Note. On June 2, 2010, Georgia filed a motion for summary judgment. She argued that she was not personally hable for the debt because she never signed the Note and further that her husband’s estate was not liable under the Note because U.S. Bank had failed to demand payment within the time prescribed under K.S.A. 59-2239(1) after her husband’s death. She also argued that U.S. Bank could not foreclose against the Property under the Mortgage because the Note, held by U.S. Bank, and the Mortgage, initially held by MERS and later assigned to U.S. Bank, had been irreparably severed. U.S. Bank filed a response to Georgia’s motion as well as its own cross-motion for summary judgment. U.S. Bank argued that K.S.A. 59-2239(1) was inapplicable because the statute expressly excludes claims made in relation to liens existing at the time of the decedent’s death. U.S. Bank also argued that the Note and the Mortgage were never severed because MERS held the Mortgage solely as “nominee” or agent of U.S. Bank. Following a hearing, the district court denied Georgia’s motion for summary judgment in a memorandum decision filed on February 23, 2011. The district court did not address Georgia’s argument that U.S. Bank failed to timely demand payment on the Note under K.S.A. 59-2239(1). As to Georgia’s argument that the Noté and Mortgage were severed, the district court found that even if there were no agency relationship between U.S. Bank and MERS such that the Note and Mortgage were severed, any severance was “cured” by MERS’s subsequent assignment of the Mortgage to U.S. Bank, thereby permitting U.S. Bank to foreclose on the Mortgage. On June 21, 2011, the district court filed an order granting summary judgment in favor of U.S. Bank on the mortgage foreclosure petition. Georgia timely appealed the district court’s judgment. The standards for granting summary judgment are well known. When the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. The district court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, the same rules apply; summary judgment must be denied if reasonable minds could differ as to the conclusions drawn from the evidence. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011). Demand for Payment Under K.S.A. 59-2239(1) Although the district court did not address the issue in ruling on the summary judgment motions, Georgia renews on appeal her contention that the Mortgage cannot be foreclosed because the underlying debt was extinguished when U.S. Bank failed to demand payment on the Note within the time prescribed under K.S.A. 59-2239(1) after her husband’s death. The parties disagree whether the statute is applicable to the facts herein. Interpretation of a statute is a question of law over which appellate courts have unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009). K.S.A. 59-2239(1) states: “All demands, including demands of the state, against a decedent’s estate . . . shall be forever barred from payment unless the demand is presented within the later of: (a) four months from the date of first publication of notice under K.S.A. 59-2236, and amendments thereto; or (b) if the identity of the creditor is known or reasonably ascertainable, 30 days after actual notice was given, except that the provisions of the testator’s will requiring the payment of a demand exhibited later shall control. No creditor shall have any claim against or lien upon the property of a decedent other than liens existing at the date of the decedent’s death, unless a petition is filed for the probate of the decedent’s will pursuant to K.S.A. 59-2220 and amendments thereto or for the administration of the decedent’s estate pursuant to K.S.A. 59-2219 and amendments thereto within six months after the death of the decedent and such creditor has exhibited the creditor’s demand in the manner and within the time prescribed by this section, except as otherwise provided by this section.” (Emphasis added.)' Georgia contends that U.S. Bank cannot foreclose its mortgage on the properly because the underlying debt was extinguished when U.S. Bank failed to demand payment on the Note within the time prescribed under K.S.A. 59-2239(1.) after her husband’s death. But K.S.A. 59-2239(1) is inapplicable under the present facts. U.S. Bank has expressly stated that it is not seeking a money judgment against either James or Georgia Howie under the Note, but it is only proceeding against tire Property. Moreover, the record reflects that the Note was not in default when James died on February 23, 2008, so U.S. Bank had no reason to pursue a claim against James’ estate at the time of his death. As to U.S. Bank’s attempt to foreclose the Mortgage, K.S.A. 59-2239(1) provides that no creditor shall have any claim against or lien upon the property of a decedent “other than liens existing at the date of the decedent’s death,” unless a petition is filed for the probate of the decedent’s will or for the administration of die decedent’s estate within 6 months after the death of tire decedent. The plain language of the statute expressly exempts liens existing at die date of the decedent’s death. The clear purpose of this exemption is to relieve secured creditors from additional filing obligations where their claims are already secured by preexisting liens. This purpose would be completely nullified by requiring secured creditors to petition a probate court for enforcement of liens within the time prescribed by K.S.A. 59-2239(1). We agree with U.S. Bank that K.S.A. 59-2239(1) is inapplicable to the facts herein and the provisions of that statute do not bar U.S, Bank from foreclosing its Mortgage against the Property. Were the Note and Mortgage Severed? Georgia next argues that the Mortgage cannot be foreclosed because the Note and associated underlying debt were irreparably severed from the Mortgage where the Note was held by U.S. Bank and the Mortgage initially was held by MERS. She contends that the severance could not be cured by MERS’s subsequent assignment of the Mortgage to U.S. Bank prior to U.S. Bank filing the foreclosure petition. U.S Bank argues that, because MERS held the Mortgage solely as “nominee” or agent of U.S. Bank, the Note and Mortgage were never severed and thus U.S. Bank, as present holder of both the Note and the Mortgage, may foreclose on the Mortgage. The district court did not expressly decide whether MERS held the Mortgage solely as a nominee or agent for U.S. Bank. Instead the district court found that even if there were no agency relationship between U.S. Bank and MERS such that the Note and Mortgage were severed, any severance was “cured” by MERS’s subsequent assignment of the Mortgage to U.S. Bank prior to U.S. Bank filing the mortgage foreclosure petition. The parties agree that the facts relevant to this issue are not in dispute. Where there is no factual dispute, appellate review of an order granting summary judgment is de novo. Kuxhausen v. Tillman Partners, 291 Kan. 314, 318, 241 P.3d 75 (2010). Generally, a mortgage is unenforceable when it is not held by tire same entity that holds the promissory note. However, an exception exists where there is an agency relationship between the holder of the mortgage and the holder of the promissory note. In Landmark Nat'l Bank v. Kesler, 289 Kan. 528, 216 P.3d 158 (2009), the Kansas Supreme Court discussed the effect of “splitting” a mortgage from the promissory note: “ ‘Tlie practical effect of splitting the deed of trust [or mortgage] from the promissory note is to make it impossible for the holder of the note to foreclose, unless the holder of the deed of trust is the agent of the holder of the note. [Citation omitted.] Without the agency relationship, the person holding only the note lacks die power to foreclose in the event of default. The person holding only the deed of trust will never experience default because only the holder of the note is entitled to payment of the underlying obligation. [Citation omitted.] The mortgage loan becomes ineffectual when the note holder did not also hold the deed of trust.’ [Citation omitted.]” (Emphasis added.) Landmark, 289 Kan. at 540. Because the parties agree that MERS and U.S. Bank are separate entities, the dispositive issue in this case is whether MERS, the initial holder of the Mortgage, was acting as an agent of U.S. Bank, the holder of the Note. If so, then the Mortgage and the Note were never severed and U.S Bank, as the present holder of both, may foreclose on the Mortgage. Whether an agency relationship exists is normally a question for the finder of fact. But here, the only evidence before the district court regarding the existence of an agency relationship between MERS and U.S. Bank was the language of the Mortgage itself, which the parties do not dispute. Because there is no factual dispute, our review of this issue is unlimited. Kuxhausen, 291 Kan. at 318. Before turning to the question of the existence of an agency relationship between MERS and U.S. Bank, a general overview of the MERS mortgage registration system is in order. In Jackson v. Mortgage Electronic, 770 N.W.2d 487, 490 (Minn. 2009), the Minnesota Supreme Court described the MERS mortgage registration system as follows: “MERS is an electronic registration system that was created in the aftermath of the 1993 savings and loan crisis. MERS does not originate, lend, service, or invest in home mortgage loans. Instead, MERS acts as the nominal mortgagee for the loans owned by its members. The MERS system is designed to allow its members, which include originators, lenders, servicers, and investors, to assign home mortgage loans without having to record each transfer in tire local land recording offices where the real estate securing the mortgage is located. . . . “MERS was designed to improve the efficiency and profitability of the primary and secondary mortgage markets. The primary market in the home mortgage industry largely consists of mortgage loans made to consumers. The loans are evidenced by a promissory note and secured by a security instrument — typically a mortgage deed or deed of trust. The originating lender routinely sells tire mortgage loans on the secondary market to investors ... Once on the secondary market, the loans may be sold several times or bundled into mortgage-backed securities. “Traditionally, each mortgage loan transfer on the primary and secondary market included an assignment of the security instrument that could be recorded in the local land recording office where the real estate securing the mortgage loan is located. According to MERS, multiple assignments of tire security instrument commonly caused confusion, delays, and chain-of-title problems. In an effort to streamline the assignment process, MERS essentially privatized part of the mortgage recording system. Participants in tire mortgage industry can subscribe as members on the MERS system. A loan held by a member is registered in the MERS database. Once registered, MERS serves as tire mortgagee of record for all loans in its system. More specifically, MERS is the nominal mortgagee for the lender and any successors and assigns. When the security instrument is recorded, the local land records list MERS as the mortgagee. “The benefit of naming MERS as the nominal mortgagee of record is that when the member transfers an interest in a mortgage loan to another MERS member, MERS privately tracks the assignment within its system but remains the mortgagee of record. According to MERS, this system ‘saves lenders time and money, and reduces paperwork, by eliminating the need to prepare and record assignments when trading loans.’ ” We now turn to the dispositive issue of whether MERS, the initial holder of the Mortgage, was acting as an agent of U.S. Bank, the holder of the Note. In Kansas, an agency relationship may be created expressly or by implication. In an express agency, the principal has delegated authority to the agent bywords winch expressly authorize the agent to perform a delegable act. An implied agency exists where the principal and the agent intend to create a relationship whereby when the agent acts on this authority, others will believe in and rely on the agent’s acts. In re Tax Appeal of Scholastic Book Clubs, Inc., 260 Kan. 528, 535, 920 P.2d 947 (1996). Here, the language of the Mortgage evidences an express agency between MERS and U.S. Bank because it explicitly authorizes MERS to act on behalf of U.S. Bank in all situations related to the enforcement of the Mortgage: “Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this [Mortgage], but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lenders successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this [Mortgage.]” Although the Mortgage uses the term “nominee” rather than “agent,” this terminology does not alter the character of the relationship between MERS and U.S. Bank. This is especially true given that the legal definitions of “nominee” and “agent” overlap. Black’s Law Dictionary defines a nominee as “[a] person designated to act in place of another, [usually] in a very limited way,” or “[a] party who holds bare legal title for the benefit of others . . .” and an agent as “[o]ne who is authorized to act for or in the place of another; a representative.” Black’s Law Dictionary 1149, 72 (9th ed. 2009). Moreover, our Supreme Court has explicitly stated that “[t]he legal status of a nominee . . . depends on the context of the relationship of the nominee to its principal,” implying that a nominee is a type of agent. (Emphasis added.) Landmark, 289 Kan. at 539. Georgia acknowledges the language contained in the Mortgage, but she relies on caselaw to support die proposition that there was no agency relationship between MERS and U.S. Bank. The primary case on which Georgia relies is Landmark. In Landmark, the debtor obtained a loan from Landmark National Bank (Landmark), secured by a mortgage in certain real property. The mortgage was duly recorded in the land records of Ford County, Kansas. About a year later, the debtor took out a second loan from Millenia Mortgage Corp. (Millenia), secured by a mortgage in the same real property. The second mortgage named Millenia as the lender and MERS as the mortgagee acting “solely as nominee for Lender . . . and Lender’s successors and assigns.” 289 Kan. at 536. The second mortgage was also recorded in Ford County. At some subsequent time, the second mortgage may have been assigned to Sovereign Bank (Sovereign) and Sovereign may have taken physical possession of the associated promissory note, but the assignment of the second mortgage was not recorded. Landmark later filed a petition to foreclose its mortgage. Landmark named the debtor and Millenia as defendants but did not serve notice of the petition on either MERS or Sovereign. Since neither of the named defendants answered the petition, default judgment was entered against them, and the secured property was sold at a sheriff s sale. Soon after the sheriff s sale, Sovereign filed an answer to the foreclosure petition, claiming an interest in the property as Millenia’s successor in interest. Sovereign also filed a motion to set aside the default judgment on the basis that MERS was a contingently necessary party under K.S.A. 60-219(a). Sovereign maintained that because Landmark failed to name MERS as a defendant, Sovereign did not receive notice of the litigation. The district court denied the motion, finding that MERS was not a real party in interest because MERS served only as an agent for Millenia. The district court further found that Sovereign was precluded from asseiting its rights after the judgment had been entered because Sovereign had not recorded its interest in the property. 289 Kan. at 532. On appeal, this court affirmed the district court’s judgment in Landmark National Bank v. Kesler, 40 Kan. App. 2d 325, 192 P.3d 177 (2008), aff'd 289 Kan. 528, 216 P.3d 158 (2009). First, this court agreed with the district court that although the mortgage used the word “nominee,” it was clear that MERS was an agent for Millenia. 40 Kan. App. 2d at 327-28. Next, this court found that MERS was not a contingently necessary party under K.S.A. 60-219(a) because MERS did not have a separate interest, apart from its principal’s interest in securing the loan, that would be substantially impaired or impeded absent its participation in the foreclosure litigation. 40 Kan. App. 2d at 328. This court specifically noted that MERS did not receive payments on behalf of Millenia or Sovereign and that under the terms of the mortgage, notices of default on superior liens were to go to Millenia, not MERS. 40 Kan. App. 2d at 329-30. Our Supreme Court granted review and considered the same question — whether the district court abused its discretion in denying the motion to set aside the default judgment on the basis that MERS was a contingently necessaiy party. 289 Kan. at 533. In the context of its discussion concerning whether MERS had an interest that would be substantially impaired or impeded by its absence from the litigation, the court stated: “The relationship that MERS has to Sovereign is more akin to that of a straw man than to a party possessing all the rights given a buyer .... Although MERS asserts that, under some situations, the mortgage document purports to give it tire same rights as the lender, the document consistently refers only to the rights of the lender, including rights to receive notice of litigation, to collect payments, and to enforce the debt obligation. The document consistently limits MERS to acting ‘solely’ as the nominee of the lender.” 289 Kan. at 539-40. Georgia relies on this language to support her contention that MERS is acting “solely as a nominee” and not as an agent of U.S. Bank. But it is clear that under this language, our Supreme Court was discussing the scope of MERS’s rights and duties as an agent to its principal in the context of determining whether MERS was a contingently necessary party to the foreclosure action. See 289 Kan. at 538-42. Our Supreme Court ultimately determined that the record failed to show that MERS had a tangible and independent interest that was prejudiced by its absence from the initial foreclosure action. 289 Kan. at 542. In this unique procedural posture, Landmark does not support Georgia’s contention that MERS is not an agent for lenders such as U.S. Bank. Indeed, Landmark supports the converse proposition: the fact that MERS has few, if any, rights other than acting on behalf of the lender to secure the lender’s rights where necessary indicates that MERS is an agent of the lender. Georgia also cites Mortgage Electronic Registration Systems v. Graham, 44 Kan. App. 2d 547, 229 P.3d 420 (2010). In Graham, the debtor executed a promissory note in favor of Countrywide Home Loans, Inc. (Countrywide) secured by a mortgage held by MERS, “acting solely as nominee for Countrywide.” 44 Kan. App. 2d at 549. The debtor defaulted on the note and MERS, not Countrywide, brought a mortgage foreclosure action. The district court granted summary judgment to MERS on the foreclosure petition, and the debtor appealed to this court. On appeal, after all parties had submitted their briefs, the debtor filed a letter of additional authority pursuant to Supreme Court Rule 6.09(b) arguing that under Landmark, MERS did not have a sufficient interest in the outcome of the mortgage foreclosure petition, and thus did not have standing to bring the action, because it was not the holder of the promissory note. 44 Kan. App. 2d at 552-53. MERS responded that Landmark narrowly stands for the proposition that MERS is not a necessary party following an entry of default judgment in a mortgage foreclosure action. MERS also asserted that because the debtor had admitted in the pleadings that MERS acted as an agent of Countrywide, MERS had standing to bring the foreclosure action. 44 Kan. App. 2d at 553. This court found that, as in Landmark, MERS was acting “solely as nominee” for the lender and held no interest in the promissory note. 44 Kan. App. 2d at 554. Because there was no evidence that MERS had suffered any injury by the debtor’s failure to malee payments on the promissory note and there was no evidence that MERS had received permission to act as an agent for the lender, this court held that MERS lacked standing to bring a foreclosure action. 44 Kan. App. 2d at 554. A careful reading of Graham suggests that the case is not helpful to Georgia’s position. First, the Graham court primarily relied on Landmark in the context of determining whether MERS had any interest in the promissory note such that MERS suffered an injury due to tire debtor’s default, and not in the context of determining the exact nature of the relationship between MERS and the lender. Second, to the extent that the Graham court relied on Landmark’s “straw man” characterization of the relationship between MERS and its lenders, the court stated that “there is no evidence that MERS received permission to act as an agent for Countrywide”— indicating that if there were such evidence, the result would have been different. 44 Kan. App. 2d at 554. The Graham case was not the end of the parties’ litigation on the foreclosure of that particular mortgage. The debtor in Graham filed bankruptcy in the United States Bankruptcy Court for the District of Kansas. In the bankruptcy proceeding, the debtor brought an adversary proceeding for determination of the secured status of the claims of Countrywide and MERS. See In re Martinez, 444 B.R. 192 (Bankr. D. Kan. 2011). For the first time in the course of the litigation, the debtor made the argument that the mortgage was unenforceable because it had been “split” from the promissory note where MERS held the mortgage and Countrywide held the note — precisely the issue before this court herein. 444 B.R. at 197. In rejecting the debtor’s argument, the Martinez court thoroughly examined both Landmark and Graham. While it found the general principles set forth in Landmark to be correct — i.e., that a “split” between a mortgage and a note renders the mortgage unenforceable absent an agency relationship between the holder of the mortgage and the holder of the note — it noted that the Landmark court did not specifically address whether an agency relationship existed between MERS and the lender. 444 B.R. at 204. The Martinez court also noted that the Graham court merely held that there was no evidence in the record that MERS was acting as an agent for Countrywide. 444 B.R. at 204-05. The Martinez court noted that the lack of evidence in Graham of an agency relationship was hardly surprising given that the standing issue was first, raised after the close of appellate briefing and given that the debtor had previously insisted that MERS was acting as an agent of Countrywide. 444 B.R. at 205. Finally, the Martinez court held that there was sufficient evidence in the record to establish that MERS was acting as an agent of Countrywide and therefore the mortgage and note were never split such that the mortgage became unenforceable. The Martinez court relied primarily on the language of the mortgage — language virtually identical to the Mortgage clause herein — to find that the debtor was aware of and understood tire relationship between MERS and Countrywide. 444 B.R. at 205. The Martinez court noted that MERS also provided a copy of its terms and conditions with its lenders as further evidence of the agency relationship. 444 B.R. at 205-06. As the Martinez court concluded, based on the legal definitions of the terms it would be difficult to imagine a situation in which a party acting as a “nominee” would not also clearly fit within the definition of an “agent.” 444 B.R. at 206 n.51. We find the reasoning of the Martinez court to be persuasive. Georgia attempts to distinguish Martinez by arguing there was “considerable evidence” of the agency relationship between MERS and Countrywide presented in Martinez, whereas here there was “no evidence” of any agency relationship between MERS and U.S. Bank. While it is true that there was more evidence of the agency relationship in Martinez, the bankruptcy court relied primarily on the language of the mortgage — -language virtually identical to the Mortgage clause herein — to find that the debtor was aware of and understood the relationship between the lender and the mortgagee. We conclude that the plain language of the Mortgage herein provided sufficient and undisputed evidence that MERS was acting as an agent of U.S. Bank at all relevant times. Because MERS was acting as an agent of U.S. Bank, the Mortgage and the Note were never severed and U.S. Bank, as present holder of both the Note and the Mortgage, was entitled to foreclose on the Mortgage. Although the district court relied on different grounds in deciding the case, it reached the correct result and its decision will be upheld even if it relied upon the wrong ground or assigned erroneous reasons for its decision. Robbins v. City of Wichita, 285 Kan. 455, 472, 172 P.3d 1187 (2007). Affirmed.
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Marquardt, J.: A mortgage foreclosure action was filed by CoreFirst Bank & Trust against JHawker Capital, LLC (JHawker) on property in a Junction City subdivision development commonly referred to as Mann’s Ranch. CoreFirst named Linda and James David Alexander (the Alexanders) as defendants in the foreclosure action because of their interests claimed in the Affidavit of Equitable Interest (affidavit) in the real estate recorded with the register of deeds in Geary County on April 2,2007. The journal entry granting the mortgage foreclosure was entered on November 4, 2009. That judgment is not at issue here, except to the extent that CoreFirst was granted a first priority lien against the real estate. While the foreclosure action was pending, on August 13, 2009, the Alexanders .and Outwest Investments, LLC (Outwest) filed a third-party petition against Junction City Abstract & Title Co., Inc. (JCAT). In the third-party petition, the Alexanders and Outwest alleged that JCAT was liable for failing to include a restriction on the warranty deeds. The warranty deeds had the Affidavit of Equitable Interest attached. We note that David signed the deed on behalf of Outwest on March 13, 2007. Both Alexanders signed the Affidavit of Equitable Interest on March 28, 2007; the signatures on both of these documents were notarized. The deed and affidavit were filed with the register of deeds in Geary County on April 2, 2007. There was no restriction listed on the warranty deeds. The Alexanders and Outwest filed their third-party petition, alleging that JCAT had a duty to include their restrictive covenant on the deeds it prepared. David signed the warranty deed JCAT prepared on behalf of Outwest. The Affidavit of Equitable Interest attached to the warranty deed was signed by David and Linda Alexander. It is obvious from these transactions that all the parties involved were sophisticated business people. Did the Alexanders read the deed and affidavit before signing them? It is obvious that there was no restriction recited on the deed. At'the time, did the Alexanders deem the Affidavit of Equitable Interest was sufficient to protect their interests? If the Alexanders and Outwest wanted a restriction on the deed to protect their interests, why did David sign the deed without the restriction? On March 21, 2011 the Geary County District Court filed a journal entry granting summary judgment to JCAT and denying the claims of the Alexanders and Outwest. The court held that the retained interests the third-party plaintiffs claim were transfer fee covenants, and our legislature has statutorily deemed that these covenants are void, unenforceable, and against public policy under K.S.A. 2011 Supp. 58-3821 and K.S.A. 2011 Supp. 58-3822. The court also rejected arguments that the transfer fees fit within the exceptions to the rule for real estate commissions or additional consideration. Thus, JCAT could not be liable for failing to adequately protect an unenforceable interest. Second, the court denied the claims for damages for future lost profits, finding them too speculative and remote. David Alexander and Outwest challenge both decisions on appeal. This appeal involves the claims of tire Alexanders and Outwest, a real estate business in which David is the managing member. The Alexanders’ and Outwest’s second amended third-party petition against JCAT claimed: (1) professional malpractice and breach of fiduciary duty; (2) breach of contract; and (3) negligence in preparing real estate documents. The Alexanders and Outwest claim that JCAT failed to adequately protect the Alexanders’ and Out-west’s retained interests in the property as reflected in the contracts between Outwest (and other sellers) and the buyers, JHawker and Southboro, LLC. The Alexanders and Outwest claimed that their contracts provided that when each of the 174 lots in Mann’s Ranch was fully developed with a home and was sold, the buyers would either (1) ensure that the Alexanders were the exclusive listing agents with a 5.5% commission or (2) pay Outwest a commission or fee of $2,500 regardless of whether the buyers still owned the lots at such time. The Alexanders and Outwest claim that JCAT, who prepared tire deed for the transfer of the real property, is responsible for the district court’s finding that their security interests were inferior to CoreFirst’s mortgage lien and that their interests were extinguished in the foreclosure action. Contract Terms There were two contracts for the sale of the 174 lots that were essentially identical in their terms except for the names of the buyers, legal descriptions, number of lots to be platted, and calculation of the sale price. Each included the following provisions that are key to arguments raised in this appeal: • The parties were identified as: “Seller” (of both tracts): Alexander Land Investments, LLC; Thomas-Locke Development, LLC; Outwest Investments, LLC; and SBSL, LLC; “Buyer” of Tract 1 (Phase I): Southboro, LLC; “Buyer” of Tract 2 (Phase II): JHawker Capital, LLC. • “1.0 RECITALS. . . . Seller acquired for development purposes a tract of land in Geary County, Kansas, commonly known as the ‘Mann’s Ranch’ with the intent of subdividing and developing it into a total of [92 and 82] residential lots to be sold at a wholesale price of $15,000 per lot and give David Alexander and Linda Alexander an exclusive listing agreement respecting the sale of completed structures for a commission o£5Vz% of the gross sale price.” • “3.0 PURCHASE PRICE. . . . “3.2 The purchase price for Tract One is $1,380,000 [and for Tract Two is $1,230,000] at $15,000 per lot based upon the final plat on file at the time of closing.” • “6.0 RETAINED INTEREST TO REAL ESTATE PROTECTED BY AFFIDAVIT OF EQUITABLE INTEREST. “If Buyer should elect not to use David Alexander or Linda Alexander as a real estate agent as described above, then the Buyer shall pay to Outwest Investments, LLC, a commission/fee of $2,500.00 at the time of the closing of each First Conveyance of each lot. For the purpose of this Agreement, ‘First Conveyance’ shall be defined as the first sale and conveyance of the lot or lots on which an improved house/residence has been constructed, regardless of who may own the lot or who might have constructed the dwelling at the time of such closing. The mere transfer of a vacant lot shall not obligate Buyer to pay the commission of $2,500.00, but such obligation to pay Outwest Investments, LLC, $2,500.00 shall arise upon the sale of a constructed dwell ing or when a mortgage is filed securing the permanent financing of a dwelling, whichever first shall occur. “6.1 Real Estate Commission Fees. It is disclosed by the Seller that David Alexander is a duly licensed real estate agent in the State of Kansas. As part of the consideration for this transaction, Buyer agrees that he/it will list all properties for sale through David Alexander and Linda Alexander as listing agents for tire real estate brokerage firm for which they are associated. That David Alexander and Linda Alexander will cause said properties to be listed for a five and one-half percent (51/2) fee based upon tire selling price of the property with improvements that will be constructed, be the same a single family residence or a duplex. That David Alexander and Linda Alexander will cause said properties to be listed using MLS. This provision wherein David Alexander and Linda Alexander will be the exclusive listing agents for tire foregoing lots being developed by the Buyer or his successors, heirs or assigns, shall run with tire land and shall be released on a lot by lot basis by David Alexander and Linda Alexander after closing the first sale to a third party. The provisions of this paragraph shall survive the closing of this transaction. “In the event the buyer should elect not to used David and/or Linda Alexander as tire real estate agents as described above, then the Buyer agrees to pay to the Seller a commission/fee of Two Thousand Five Hundred Dollars ($2,500.00) ‘sales price’ at the time [of] the first sale or conveyance of said property after improvements have been constructed. It is contemplated by the parties hereto that the first transaction shall be defined as the sale and conveyance of said property that contains an improved house/residence/duplex and not the mere transfer of the vacant lot. “The parties agree and understand that said agreement will be recited on a deed restriction that will be filed of record at the time of closing that will seme as a restriction on said property. [Emphasis added.] “6.2 Further, Buyer shall obligate any future purchaser or transferee of any of the unimproved lots in Tract One to honor the Buyer’s obligations under any listing agreement which Buyer may choose to sign with David Alexander and Linda Alexander as set forth herein respecting new homes which may be constructed on the lots. The parties acknowledge and agree that they intend that David Alexander and Linda Alexander be a third-party beneficiaries [sic] of this real estate contract; and accordingly, David Alexander and Linda Alexander shall be entitled to enforce the performance of Buyer’s obligations the listing provision hereof directly against Buyer. “6.3 Buyer will execute and deliver to David Alexander and Linda Alexander an exclusive Right-To-Sell Listing Agreement as designated or mutually acceptable real estate broker whom Alexander may select, a copy of which is appended to this contract as Exhibit ‘A’, which shall expire on the first day of the sixth month after Junction City has issued its certificate of occupancy respecting any residential structure which may be constructed on the lot.” • “15.0 PRIOR AGREEMENTS. This Contract represents the entire agreement between tire parties as to the real estate, and any and all other agreements previously entered into by the parties regarding the sale of the real estate are superseded by this Contract and of no furdrer force or effect.” Summary Judgment JCAT moved for summary judgment, arguing that it could not be liable for not including the retained interest as a deed restriction because retained interests are considered transfer fee covenants that the Kansas Legislature has declared void and unenforceable and against public policy under K.S.A. 2011 Supp. 58-3821 and K.S.A. 2011 Supp. 58-3822. The district court denied that motion as premature pending discovery. JCAT again moved for summary judgment. After an extensive response from the Alexanders and Outwest and a reply by JCAT, the district court held a hearing at which the parties presented arguments. By agreement at the beginning of the hearing, the parties informed the court that Linda Alexander’s claims were being dismissed because she was not a licensed real estate agent. The district court dismissed her claims for lack of standing. That decision is not appealed. The district court granted JCAT summary judgment on all remaining third-party claims. First, construing the terms of the contracts within their four comers, the court concluded as a matter of law that the proposed deed restrictions constituted a transfer fee that the Kansas Legislature has declared void against public policy and unenforceable under K.S.A. 2011 Supp. 58-3821 and K.S.A. 2011 Supp. 58-3822. The court also concluded that the statutory exceptions to the rule under K.S.A. 2011 Supp. 58-3821(a)(2)(A) and (B) were inapplicable. Thus, the Alexanders and Outwest could not establish they were damaged by JCAT’s failure to include the unenforceable transfer fee restrictions on the deeds. Alternatively, tire court mled that the damages sought by third-party plaintiffs were too speculative and remote to permit recovery under any theory. David and Outwest (collectively referred to as appellants) appeal the district court’s decision. Appeal In their first argument on appeal, appellants do not dispute the district court’s conclusion that the interests underlying their claims against JCAT were “transfer fee covenants.” Instead, they argue that the district court erred in not concluding their contractually retained interests fit within either of the statutory exceptions barring transfer fees found in K.S.A. 2011 Supp. 58-3821(a)(2)(A) and (B). JCAT responds that the district court properly concluded the exceptions were inapplicable, albeit for different reasons. An appellate court’s standard for reviewing the district court’s summary judgment is well known: “ ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. [Appellate courts] apply tire same rules and where we find reasonable minds could differ as to the conclusions drawn from tire evidence, summary judgment must be denied.’ [Citation omitted.] “To tire extent there is no factual dispute, appellate review of an order granting summary judgment is unlimited. [Citation omitted.]” Carrothers Constr. Co, v. City of South Hutchinson, 288 Kan. 743, 750-51, 207 P.3d 231 (2009). Legal Effect of a Written Contract The district court’s summary judgment is reviewed based on its interpretation of the contracts, as well as K.S.A. 2011 Supp. 58-3821 and K.S.A. 2011 Supp. 58-3822. Issues involving the interpretation and legal effect of a written contract, as well as statutory interpretation, involve questions of law subject to unlimited review by this court without deference to the district court’s interpretations. See Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009) (contract interpretation and legal effect of written contract). As the Kansas Supreme Court has explained in discussing a court’s role in interpreting contracts: “The primary rule for interpreting written contracts is to ascertain the parties’ intent. If the terms of the contract are clear, the intent of the parties is to be determined from the contract language without applying rules of construction. [Citation omitted.] Interpreting a written contract that is free from ambiguity is a judicial function and does not require oral testimony to determine the contract’s meaning. Ambiguity in a contract does not appear until two or more meanings can be construed from the contract provisions. [Citation omitted.]” Carrothers Constr., 288 Kan. at 751. Courts cannot isolate one particular sentence or provision when interpreting a contract but instead must construe and consider the entire contract in harmony where possible. City of Arkansas City v. Bruton, 284 Kan. 815, 832-33, 166 P.3d 992 (2007). Before addressing the parties’ arguments on appeal, it should be noted that appellants have included in their briefs what they deem to be additional relevant facts about the parties’ intent and the circumstances leading up to the appellants’ sale of Mann’s Ranch. These facts, which were included in their response to JCAT’s motion for summary judgment, relate primarily to their contentions that they sold the property for less than it was worth only because of they had a retained interest in the property. The district court found these facts were immaterial because the contracts were unambiguous. The court limited its decision to consideration of the contracts. Even though the appellants maintain that the contract is unambiguous and must be enforced according to its terms, they ask this court to consider evidence of their intent at the time of signing of the contracts. They cannot have it both ways. JCAT suggests that some of the contract terms are conflicting on the damages issue but does not otherwise contend that the contracts were ambiguous or require consideration of parol evidence. See Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 452, 827 P.2d 24 (1992) (noting general rule that parol evidence is inadmissible to contradict, alter, or vary terms of written instrument unless ambiguity exists on vital point such that parol evidence is necessary to ascertain parties’ intent in executing instrument). Compare Duncan v. Essary, 193 Kan. 241, 245, 392 P.2d 877 (1964) (noting that parol evidence is always admissible to prove that deed absolute in form was in fact equitable mortgage to secure payment of debt). The contract clearly stated: “This Contract represents the entire agreement between the parties as to the real estate, and any and all other agreements previously entered into by the parties regarding the sale of the real estate are superseded by this Contract and of no further force or effect.” When a contract clearly states that it represents the parties’ entire agreement and any and all other agreements previously entered into by the parties regarding die sale of the real estate are superseded by this contract and of no further force or effect, parol evidence on the issue is not admissible. Because the parties do not point to any ambiguity in the contracts and the contracts state that prior agreements have “no further force or effect,” this court will not go outside of the four corners of the contracts to resolve the issues on appeal. We also note that appellants’ reply to JCAT’s motion for summary judgment cites to the initial summary judgment pleadings filed in this case as support for their additional factual contentions. In a footnote to their brief, appellants state that this is appropriate because JCAT’s reply to their response in those initial summary judgment proceedings did not comply with Supreme Court Rule 141 (2011 Kan. Ct. R. Annot. 232), so by operation of that rule, JCAT was deemed to have admitted their uncontroverted factual contentions. The summary judgment pleadings cited as support for appellants’ additional factual contentions were filed in a separate summary judgment proceeding. Nothing in Rule 141 provides — and no authority was found to support the appellants’ suggestion — that facts deemed uncontroverted in a separate summary judgment proceeding are binding on the parties in another summary judgment proceeding. We find that the factual contentions in one summary judgment proceeding are not binding on the parties in a subsequent summaiy judgment proceeding. Thus, they lack support and are not relied upon by this court in reaching its decision. Application of KS.A. 2011 Supp. 58-3821 and K.S.A. 2011 Supp. 58-3822 Interpretation of a statute is a question of law over which appellate courts have unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009). A rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. See Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P.3d 676 (2009). When a statute is plain and unambiguous, courts will not speculate as to the legislative intent and will not read something into the statute that is not readily found in it. The canons of construction or legislative history will not be consulted to construe legislative intent. Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009). K.S.A. 2011 Supp. 58-3821 and K.S.A. 2011 Supp. 58-3822 dealing with transfer fee covenants were passed by our legislature in 2009. K.S.A. 2011 Supp. 58-3822 states, in pertinent part: “(a) On and after the effective date of this act, any transfer fee covenant, as defined in K.S.A. 2011 Supp. 58-3821... is hereby declared to be against public policy and such covenant shall be void and unenforceable. “(b) The provisions of this section shall apply to any transfer fee covenant in existence on the effective date of this act.” K.S.A. 2011 Supp. 58-3821 is titled “Transfer fee covenant; definitions; not enforceable” and states: “(a) As used in this section: “(1) ‘Transfer’ means the sale, gift, conveyance, assignment, inheritance or other transfer of an ownership interest in real property located in this state; “(2) ‘transfer fee’ means a fee or charge payable upon the transfer of an interest in real property or payable for the right to make or accept such transfer, regardless of whether the fee or charge is a fixed amount or is determined as a percentage of the value of the property, the purchase price or other consideration given for the transfer. The following shall not be considered a ‘transfer fee’ for the purposes of this section: (A) Any consideration payable by the grantee to the grantor for the interest in real property being transferred, including any subsequent additional consideration for the property payable by the grantee based upon any subsequent appreciation, development or sale of the property; (B) any commission payable to an individual licensed by the state as a real estate salesperson or broker for the transfer of real property pursuant to an agreement between the grantor or grantee and the real estate salesperson or broker, including any subsequent additional commission payable by the grantor or the grantee based upon any subsequent appreciation, development or sale of the property; “ (3) ‘transfer fee covenant’ means a declaration or covenant purporting to affect real property that requires or purports to require the payment of a transfer fee to the declarant or other person specified in the declaration or covenant or to their successors or assigns, upon a subsequent transfer of an interest in the real property. “(b) Any transfer fee covenant recorded in this state on or after July 1, 2009, shall not run with the title to real property and is not binding or enforceable at law or in equity against any subsequent owner, purchaser or mortgagee of any interest in real property as an equitable servitude or otherwise.” (Emphasis added.) K.S.A. 2011 Supp. 58-3821. Based on the plain language of the statutes and their legislative history, the district court found that the “transfer fee after the fact” interests at issue in this case were just the type of transfer fee covenants our legislature intended to prohibit in enacting K.S.A. 2011 Supp. 58-3821 and K.S.A. 2011 Supp. 58-3822. Neither party challenges this conclusion. Rather, appellants’ arguments on appeal focus only on whether these interests fit within the exceptions to statutorily barred transfer fees as enumerated in K.S.A. 2011 Supp. 58-3821(a)(2)(A) or (B). Both the House and Senate Committees that considered and passed House Bill 2092 (as amended) in 2009 received unopposed testimony and written remarks in support of the bill. In reaching its decision, the district court presumably consulted the background of the legislation as summarized in a supplemental note on House Bill 2092 prepared by the Legislative Research Department, which JCAT attached as an exhibit to its motion for summary judgment. Although the supplemental note cautions that it “does not express legislative intent,” independent research confirmed that it aptly summarizes the legislative histoiy of House Bill 2092 as follows: “The bill was introduced by the House Committee on Financial Institutions at the request of the Kansas Association of Realtors whose representative indicated that a private transfer fee covenant is essentially a sophisticated extortion scheme that robs the homeowner of the equity in his or her home by holding clear and marketable title to the property hostage. The representative also noted that in other states where this practice is more prevalent, mortgage lenders and title insurance agencies are not willing to participate in transactions where the title is affected by a private transfer fee covenant. The Kansas Land Title Association representative stated that the bill will eliminate clouds on titles and claims and litigation many years down the road, based on a seller’s attempt to maintain a residuary interest in future sales. Written testimony in support of the bill was provided by the Kansas Bankers Association. There were no opponents present at the time of the Committee hearing. “The House Committee on Financial Institutions recommended an amendment to include fees associated with typical real estate closings among the exclusions to the term, ‘transfer fee.’ The amendment was requested by the Kansas Association of Realtors. Additionally, the Committee recommended an amendment that would apply to transfer fee covenants in existence on the effective date of the act (publication in statute) to declare the covenants as void and unenforceable.” H.B. 2092, Supp. Note, p. 2 (2009). Appellants first argue that the district court erred in not concluding their retained interest, which they allege should have been a restriction on the warranty deed JCAT prepared, fits within the exception for real estate commissions found in K.S.A. 2011 Supp. 58-3821(a)(2)(B). The exception provides that the following shall not be considered a transfer fee: “[A]ny commission [1] payable to an individual licensed by the state as a real estate salesperson or broker for the transfer of real property [2] pursuant to an agreement between the grantor or grantee and the real estate salesperson or broker, including any subsequent additional commission payable by the grantor or the grantee based upon any subsequent appreciation, development or sale of the property.” (Emphasis added.) K.S.A. 2011 Supp. 58-3821(a)(2)(B). Before addressing the parties’ arguments, we consider the district court’s conclusion that this exception was inapplicable. First, the district court questioned whether David or Outwest was the proper party to assert the right to an exclusive listing. More specifically, the district court expressed concerns in its oral ruling about the fact that the exclusive right to sell — executed in accordance with Section 6.3 of the contracts — named Coldwell Banker as the broker that was granted the exclusive listing right, not David or Outwest. However, Coldwell Banker was not a party to the contracts or the third-party lawsuit. Appellants’ counsel informed the court that this was because David worked for Coldwell Banker at the time, and only a broker can maintain an exclusive listing agreement under Kansas law. Counsel further indicated that pursuant to an agreement between David and Coldwell Banker, these were his listings which he rightfully took with him when he left the agency. The court decided the applicability of the real estate commission with David holding the exclusive listing rights, and JCAT has not cross-appealed from that decision or otherwise challenged it. Next, the district court found it remarkable that sections 6.0 through 6.3 appeared under a general heading titled “RETAINED INTEREST TO REAL ESTATE PROTECTED BY AFFIDAVIT OF EQUITABLE INTEREST.” The court found the heading demonstrates that this is exactly the type of transfer fee the Kansas legislation was enacted to prevent. Finally, the district court found that the real estate commission exception was inapplicable because the transfer fee covenants in the contracts provided that if the Alexanders were not the exclusive listing agents, they would not receive the 5.5% commission fee, and the buyers were then required to pay a commission of $2,500 to Outwest. In short, the district court concluded this exception could not apply because Outwest was not a licensed real estate agent in Kansas, which is a prerequisite for a transfer fee to fit within the plain language of any statutory exception allowing transfer fees for real estate commissions. Appellants contend the district court too narrowly defined the parties’ intent in entering the contracts and, consequently, its decision was “misguided.” In support, they argue that the first requirement of the statute is met because it is undisputed that David is a licensed real estate agent in Kansas. They maintain that Sections 1.0 and 6.0 of both contracts clearly gave David an exclusive listing agreement for the sale of developed lots at Mann’s Ranch as part of the consideration for the transaction. Appellants acknowledge that the contracts also provided that Outwest was entitled to a commission or fee, but they maintain that would happen only if the buyers elected not to use David as the real estate agent. Accordingly, they contend that the district court again too narrowly construed the contracts to provide that both David and Outwest were entitled to recover commissions on future sales. Interestingly, JCAT does not address this separate conclusion by the district court that the exception cannot apply because Outwest was not a licensed real estate agent. Instead, JCAT’s response in support of the court’s conclusion that this exception was inapplicable focuses on two arguments. First, JCAT responds that the exception allowing transfer fees for real estate commissions is inapplicable under the facts because the Alexanders and Outwest were grantors. In support, JCAT suggests that a careful reading of K.S.A. 2011 Supp. 58-3821(a)(2)(B) demonstrates that the exception for real estate commissions applies solely to independent realtors who are not otherwise involved in the transaction. According to JCAT, because David was not acting as a real estate agent but rather in his capacity as a grantor/seller of the property through his companies, any pecuniary benefit he would receive from the future sale of an unimproved lot cannot, as a matter of law, be considered “commissions” for his work as a real estate agent back in 2006. Second, JCAT argues that the $2,500 payment that the buyer is obligated to make to Outwest in the event that David is not the exclusive listing agent, is a liquidated damage or penalty provision, not a real estate commission contemplated under the exception in K.S.A. 2011 Supp. 58-3821(a)(2)(B). In support, JCAT argues the $2,500 bears no relation to the sale or sale proceeds In their reply brief, appellants insist that this court must reject JCAT’s narrow interpretation of the transfer fee exception for real estate commissions under K.S.A. 2011 Supp. 58-3821(a)(2)(B). Even if this court accepts that narrow interpretation, they contend that David is not a grantor but rather a third-party beneficiary under the real estate contracts. Thus, his retained interest would meet the real estate commission exception given his agreement with the buyers (apparently referring to the exclusive listing agreement between JHawker and Coldwell Banker). Appellants rely on a law dictionary definition of “grantor” and point out that David is not named as a grantor or seller in the real estate transaction. Rather, the grantors/sellers were four limited liability companies, which are separate entities from their principals. Importantly, neither party cites to any authority for their competing contentions about whether, as a principal of two of the limited liability companies named as sellers in the contracts, David could not be deemed the grantor. See McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 (2002) (recognizing that simply pressing a point on appeal without citation to pertinent authority or without showing why it is sound despite lack of supporting authority, is akin to failing to brief an issue, which results in the issue being deemed waived or abandoned). Appellants further dispute JCAT’s classification of the $2,500 payment to Outwest as a penalty or liquidated damage. Instead, they assert that the plain language of tire contracts state that the $2,500 is for a commission/fee, which they classify as “simply additional consideration.” That argument seems to relate to the separate, additional-consideration exception barring transfer fees. If the contracts would have included only the retained interests of David in the exclusive listing agreement, this might have been a closer case requiring this court to resolve the parties’ various arguments. But that is not tire case. The plain language of the contracts alternatively granted either the Alexanders or Outwest future commissions upon the sales of the individual, fully developed lots, and the election between those alternatives was left up to the buyers (JHawker) or the other buyers. Accordingly, the two cannot be separated as appellants. The district court appears to have found, in pertinent part, that the interests of the Alexanders and Outwest were inseparable and could not, therefore, fall within the real estate commission exception to bar transfer fee covenants. We agree. Appellants next argue that the district court erroneously concluded their retained interests did not fall within the statutory transfer fee exception for additional consideration. To reiterate, the exception at issue here provides that transfer fees are not legislatively barred if they are for: “Any consideration payable by the grantee to the grantor for the interest in real property being transferred, including any subsequent additional consideration for the property payable by the grantee based upon any subsequent appreciation, development or sale of the property.” K.S.A. 2011 Supp. 58-3821(a)(2)(A). The court concluded that the only contract provisions that governed the consideration are found in sections 3.0 through 3.2, titled “PURCHASE PRICE.” Because tiróse provisions clearly stated that the purchase price was $15,000 per lot without any indication that “it was to be paid for X amount, and they’re paying this amount in cash, and the remainder being paid on the back end” — i.e. there is nothing to indicate that David’s exclusive listing for tire 5.5% commission or the $2,500 per lot payment to Outwest was considered in the purchase price. Therefore, the exception for transfer fees for additional consideration was inapplicable. Appellants assert that the district court’s conclusions amount to a strained and misguided interpretation of the contracts and this statutory exception. In support of their argument that this exception (in addition to that for real estate commissions) applies, they first highlight the fact that this exception is for any consideration, including any additional consideration payable based upon the subsequent sale of the property. They then point to the broad definitions of “consideration” under Kansas law. For example, in Kannaday v. Ball, 44 Kan. App. 2d 65, 72, 236 P.3d 826 (2010), rev. denied 291 Kan. 911 (2011), this court stated that “[cjonsideration may be any legal benefit or detriment.” And in Woods, Executor v. McQueen, 195 Kan. 380, 383, 404 P.2d 955 (1965), our Supreme Court noted that the applicable rule (as then stated in 17 Am. Jur. 2d, Contracts, pp. 438-39) is as follows: “ ‘It is widely held that a benefit to the promisor or a detriment to the promisee is sufficient consideration for a contract. The terms “benefit” and “detriment” are thus used in a legal or technical sense and have no necessary reference to material advantage or disadvantage to tire parties, or to any actual pecuniary gain or loss.’ ” The appellants argue that the district court erred in looking only at the purchase price section of the contracts rather than the entire documents to determine whether they were to receive any additional consideration; yet they do not cite to any provisions of the contracts in support of their argument. Instead, they reiterate additional factual contentions concerning their underlying negotiations that led to the contracts and argue the district court should have considered the contract provisions coupled with their intent as gleaned from those negotiations. As noted above, additional facts were relied upon and not supported by proper record citations because they were based on nonbinding prior summary judgment proceedings, but they wholly disregard both the district court’s valid conclusion that the unambiguous contracts must be construed within their four corners and section 15.0 of the contracts. That section, as quoted above, clearly states that the contracts represent the parties’ entire agreement and any and all other agreements leading up to the contracts are superseded and of no further force or effect. Finally, appellants argue that the real estate commissions payable to David and the commissions/fees payable to Outwest would constitute consideration for the real estate transactions because those obligations were a legal benefit to appellants and a detriment to the buyers. While this may be true of the requirement that the buyers pay Outwest $2,500, it is difficult to discern how the exclusive listing agreement would be a detriment to the buyers. It also seems that the district court was correct to conclude that those sections of the contracts do not pertain to consideration. For these reasons, we reject appellants’ arguments and conclude the district court did not err in holding the statutory exception allowing transfer fees for additional consideration was inapplicable here. Accordingly, because the appellants were not the sole grantors, the payments due to the Alexanders or Outwest alone cannot be considered “subsequent additional consideration” to the “grantor” for the sale. With this decision, we need not consider JCAT’s alternative contention that the contract terms and deposition testimony offered to support their arguments in favor of summary judgment indicate that appellants have already received full compensation for Mann’s Ranch from the buyers, so their retained interests cannot be deemed “additional consideration.” Damages Appellants contend the district court erred in concluding their damages are too speculative. They argue that their damages resulting from JCAT’s failure to close the Mann’s Ranch real estate transactions in strict conformance with the contracts can be determined based upon a simple mathematical formula. JCAT offers four alternative arguments in response, but none seem to actually reach the merits of the district court’s ruling on the damages issue. First, JCAT maintains appellants cannot establish any damages because if it had included the restriction on the warranty deed, such restriction would have been deemed void and unenforceable pursuant to K.S.A. 2011 Supp. 58-3821 and K.S.A. 2011 Supp. 58-3822. Thus, appellants would not be able to establish that any of the theories on which they based JCAT’s liability resulted in any compensable damages. But this argument does not address the district court’s conclusions concerning the speculative nature of the damages sought by appellants. Second, JCAT contends that David’s deposition testimony and other discovery responses confirm that, to date, appellants have not suffered any compensable damages because David has been retained as the listing agent and received a 5.5% commission on each of the five improved lots that have been sold. This argument ignores appellants’ request for damages for lost future profits. Third, JCAT contends there is no causal link between the absence of a deed restriction and David not being retained as the exclusive listing agent or Outwest not being paid $2,500 upon the sale of each lot. Causation and damages are two distinct issues. Fourth, and finally, JCAT maintains that the contract provisions providing David a right to an exclusive listing agreement were wholly gratuitous and did not result from a meeting of the minds between the sellers and the buyers. Appellants reply by citing to evidence in the record suggesting the contrary. If anything, this argument advanced by JCAT demonstrates only that there might be a question of fact on this issue, but that is not a material question of fact relevant to the question of whether the damages element of appellants’ claims is speculative and too remote. Unfortunately, the district court did not elaborate on the basis for its conclusion that the damages sought by appellants were speculative and too remote to survive summary judgment. The court did note that it had contemplated and did not know how it would instruct the jury when the damages are unknown as of yet. The court further commented that it “[d]oesn’t take a rocket [scientist] to figure out JHawker has gone bell [sic] up,” which “certainly indicates there might be” damages. This court reviews the district court’s grant of summary judgment under this alternative ground under the same standard set forth in the issue above. Appellants seek damages from JCAT for loss of future profits— David for $1,588,620, and Outwest for $422,500. In Kansas, “loss of profits resulting from a breach of contract may be recovered as damages when such profits are proved with reasonable certainty, and when they may reasonably be considered to have been within the contemplation of the parties.” Vickers v. Wichita State University, 213 Kan. 614, 618, 518 P.2d 512 (1974). The evidence necessary or sufficient to establish lost future profits with reasonable certainty depends largely on the circumstances of the case. While absolute certainty in proving loss of future profits is not required, a damages award for lost profits cannot be based upon purely speculative or problematic evidence. Rather, there must be some reasonable standard by which to guide the court or jury tasked with determining damages. 213 Kan. at 620 (citing Note, Requirements of Certainty of Proof of Lost Profits, 64 Harv. L. Rev. 317, 139 (1950); McCormick, Law of Damages, § 29 [1935]). As appellants point out, “speculative damages” are defined as “[prospective or anticipated damages from the same acts or facts constituting the present cause of action, but which depend upon future developments which are contingent, conjectural, or improbable.” Black’s Law Dictionary 392 (6th ed. 1990). Appellants argue on appeal that their request for damages for future lost profits does not meet this definition of speculative damages because there is a reasonable standard for determining their damages resulting from JCAT’s failure to include their interests in a deed restriction. More specifically, appellants maintain the following facts were overlooked or improperly disregarded by the district court: • Mann’s Ranch continues to be developed, and based upon the five sales of lots that have already occurred in the Mann’s Ranch subdivision, David anticipates that any developed lot will sell for an average of $174,000. • JCAT’s expert (Bill Lansdowne) opined that all lots on Mann’s Ranch will eventually be sold, and based on his retrospective opinion of market value, the average sales of developed lots would range between $125,000 and $175,000. According to appellants, David’s damages can be computed based on these facts by applying a simple mathematical formula: 166 remaining lots X $174,000 average sales price = $28,884,000; and, $28,884,000 X 5.5% commission = $1,588,620. Appellants do not offer such a formula for Outwest’s lost profits, but the $422,500 figure they use does not seem to fit their reasoning because 166 lots X $2,500 = $415,000. Also, if David received a commission, then Outwest would not. We conclude that appellants’ arguments actually demonstrate that the district court was correct in finding their damages too speculative or remote. The development of Mann’s Ranch began in 2006. Six years later, only five homes have been built and sold, leaving 166 lots unsold. While there may have been some evidence that two more lots were being developed, there is nothing in the record to indicate that those homes will sell for the $174,000 average the other five homes sold for or that additional lots will be developed with homes at that same price in the reasonably foreseeable future. Accordingly, we conclude that the district court did not err in granting JCAT summary judgment on the alternative ground that appellants’ claimed damages for future lost profits depend upon future developments that are contingent, conjectural, and improbable, i.e., are speculative and not reasonably ascertainable. Affirmed.
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Bruns, J.: This case involves a lengthy dispute over the ownership and control of real property between an international church body and one of its local congregations. The Church of God in Christ, Inc. (COGIC), a hierarchical denominational church, was granted a default judgment against the board of trustees and several individual members of Emmanuel Church of God in Christ, Wichita, Kansas (the defendants). Specifically, the district court granted injunctive relief and awarded monetary damages in favor of the COGIC. On appeal, we find that the district court did not interfere with an internal church decision that affects the faith and mission of the church itself in resolving the property dispute between the parties. We further find that the entry of default judgment was appropriate because the defendants did not answer or seek leave to file and answer out of time. Finally, we find that the award of damages by the district court was supported by substantial evidence. Thus, we affirm. Factual and Procedural Background Throughout its history, Emmanuel Church — which was established as an unincorporated association in 1945 — has been a member of the COGIC. The international church is organized by juris dictions — each of which is headed by a bishop. Since 1967, Emmanuel Church has belonged to the Kansas Southwest Jurisdiction. Currently, the Kansas Southwest Jurisdiction is administered by Bishop Joseph C. Gilkey, Sr. From 1967 until his death in October 2004, Elder Joshua Stidham served as the pastor of Emmanuel Church. In 1972, Emmanuel Church purchased real property located at 2502 N. Mascot, Wichita, Kansas (Mascot property). Since that time, Emmanuel Church has used the Mascot property to hold worship services and to conduct other church business. Under the terms of the constitution of the COGIC, Bishop Gilkey temporarily assumed the pastorate of Emmanuel Church following Elder Joshua Stidham’s death. Thereafter, members of Emmanuel Church requested that Elder Ronald E. Stidham be named as their new pastor. Instead, Bishop Gilkey named Elder Rondell Love to serve as the new pastor of Emmanuel Church. On October 29,2004, Elder Ronald Stidham purported to transfer the Mascot property to an entity known as “Emmanuel Church of God in Christ Ministries and Trustees.” Two days later, several members of Emmanuel Church formed a corporation called “Emmanuel Church of God in Christ, Wichita, Kansas” (the corporation). And, on November 8, 2004, the Mascot property was transferred to the newly formed corporation. On November 28, 2004, in an attempt to remove the congregation from Bishop Gilkey’s control, members of Emmanuel Church submitted a resolution to the COGIC requesting that the congregation be transferred to the Kansas Central Jurisdiction. But this request was denied by the COGIC, which found it to be improper. Thereafter, Bishop Gilkey granted Elder Love’s request to be relieved from the assignment to serve as the new pastor of Emmanuel Church. In a letter dated December 19, 2004, Bishop Gilkey advised the members of Emmanuel Church that he would remain as their pastor until he appointed a replacement for Elder Love. Two days later, Bishop Gilkey held a meeting with the members of Emmanuel Church, where he was told that the members of Emmanuel Church would not accept any pastor he might appoint. About a week later, the chair of the corporation’s board of trustees sent Bishop Gilkey a letter stating that he had no authority over Emmanuel Church and that the corporation had decided to unilaterally transfer to the Kansas Central Jurisdiction. During the dispute, the locks were changed to the Mascot property and Bishop Gilkey was not provided keys to the new locks. On at least one occasion, the police were called to prevent Bishop Gilkey from having access to the church building. Moreover, several disruptions occurred during worship services conducted by Bishop Gilkey or his designee. The disruptions included the playing of loud music in a restroom located next to the sanctuary. On Februaiy 10, 2005, the COGIC filed a lawsuit (the first lawsuit) against the newly formed corporation, the board of trustees, and several individual members of Emmanuel Church, seeking an injunction and further relief. Specifically, the COGIC alleged that the defendants in the case had improperly taken control of the church building and had prevented Bishop Gilkey from exercising proper control over the church property. Initially, a temporary restraining order was entered on behalf of the COGIC. But the district court subsequently entered a temporary injunction on April 13, 2005, that required the COGIC and the defendants to share the Mascot property. The defendants in the first lawsuit filed an appeal to this court from the district court’s issuance of the temporary judgment. See Church of God in Christ v. Board of Trustees of Emmanuel Church of God in Christ, No. 94,514, 2006 WL 2806859 (Kan. App. 2006) (unpublished opinion). A panel of this court affirmed the granting of the temporary injunction, finding that “the Bible cannot and does not guide our resolution of this appeal. Rather, our task is simply to review Kansas law and determine whether the trial court abused its discretion by issuing a temporary injunction.” 2006 WL 2806859, at *3. Ultimately, this court held that the district court’s conclusion that Emmanuel Church had agreed to hold the property in trust for the COGIC was supported by substantial competent evidence. 2006 WL 2806859, at *4-5. After more tiran 3 years of litigation, the parties to the first lawsuit participated in mediation. In a settlement agreement dated March 5, 2008, the parties agreed “to dismiss all claims from all parties with prejudice.” Further, the parties agreed that Emmanuel Church would submit a formal request to the COGIC for transfer to the Kansas Central Jurisdiction. Additionally, Bishop Gilkey agreed not to appoint a new pastor for Emmanuel Church until either the COGIC ruled on the transfer request or 90 days, whichever occurred first. In the meantime, both parties were to remain subject to Judge Clark’s injunction that required the parties to share the Mascot property. On March 21, 2008, a journal entry was entered in the first lawsuit adopting the terms of the settlement agreement and dismissing the claims the parties had asserted against one another with prejudice. Shortly thereafter, on April 9, 2008, the COGIC denied the request of Emmanuel Church for transfer to the Kansas Central Jurisdiction. After a lengthy appeals process, the Judiciary Board of the COGIC sent a letter to Elder Ronald Stidham dated April 12, 2009, stating that Emmanuel Church would remain in the Kansas Southwest Jurisdiction. Thereafter, Bishop Gilkey was again denied access to the Mascot property. By way of a letter dated September 9, 2009, Presiding Bishop Charles E. Blake, Sr., confirmed that Bishop Gilkey had “the authority to appoint a new pastor of [his] choosing to Emmanuel Church and shall have unfettered access to the Emmanuel Church premises to supervise and manage the church until a pastor is appointed.” On September 27,2009, Bishop Gilkey sought to address the members of Emmanuel Church prior to a worship service but was not allowed to do so. At the conclusion of the service, Bishop Gilkey had counsel for the Kansas Southwest Jurisdiction read Presiding Bishop Blake’s letter to the few congregants who remained. After the letter was read, Bishop Gilkey requested the keys and alarm code to the Mascot property. When his request was denied, Bishop Gilkey indicated that he would not leave the church building, so a member of Emmanuel Church set the alarm. Although the Wichita police responded to the alarm, they would not require members of Emmanuel Church to provide Bishop Gilkey with access to the building unless a new order was entered by the district court. On October 8, 2009, the COGIC filed the present lawsuit. A temporary injunction was entered by the district court following a hearing held on October 30, 2009. Prior to the temporary injunction hearing, the defendants filed two motions to dismiss. The first motion sought a dismissal of the entire case, arguing that the settlement agreement entered into during the first lawsuit resolved all of the COGIC’s claims against them. The second motion sought dismissal of Brenda Stidham. Both of the motions for dismissal were ultimately denied. The COGIC filed a first amended petition on November 12, 2009, setting forth six causes of action against the defendants. Specifically, the COGIC asserted claims for trespass, tortious interference with property rights, quiet title, conversion, misappropriation of name, and breach of contract. In the prayer for relief, the COGIC sought a permanent injunction granting it “access to and control” of real and personal property — including the use of the name Emmanuel Church of God in Christ and Emmanuel Church of God in Christ, Wichita, Kansas. The COGIC also sought to have the defendants “cede control of the corporation” and appoint the new pastor appointed by the jurisdictional bishop as the chief executive officer. In addition, the COGIC asked that the district court quiet the title to the Mascot property and sought to recover compensatory damages from the defendants. On February 22, 2010, the COGIC filed a motion for default judgment because the defendants had failed to file an answer to the first amended petition. Although the defendants filed a response to the motion for default, they still did not file an answer nor did they seek leave to file an answer out of time. Finally, on March 26, 2010, a hearing was held by the district court to consider the motion for default. At the hearing, counsel for the defendants argued that tire district court should have given her a date upon which to file an answer. Although it acknowledged that it did not give the defendants a deadline by which they were to file an answer, the district court rejected the idea that it was obligated to do so when the time to answer is set forth in the rules of civil procedure. Counsel for the defendants further argued that the filing of an answer would simply be a technicality in this case because the COGIC already knew her clients’ position. The district court also rejected this argument and found that the failure of the defendants to answer required the entiy of default judgment. On April 29, 2010, a journal entry of default judgment and permanent injunction was entered by the district court. In the journal entiy, the district court found that “defendants failed to file a written request for an extension of time in which to file their answer or other response explaining defendants’ failure to answer.” The district court also noted “that the defendants did not present at [the hearing on the motion for default] a proposed answer . . . .” Furthermore, the district court found “that defendants’ failure to answer is not an isolated incident and that on other occasions they have failed to comply with the rules of civil procedure or have conducted themselves in a manner that delays the progression of the litigation.” The journal entry of default judgment also set forth the terms of the permanent injunction. Specifically, the district court granted the COGIC “access and control” over the Mascot property. It also removed the board of trustees of the corporation, and named the new pastor appointed by Bishop Gilkey — Elder Tony Gentiy — as the chief executive officer of the corporation. Although the defendants were allowed to attend services and activities at the Mascot property, they were prohibited from taking any action to interfere with the COGIC’s right to control the property. Finally, the journal entry set an evidentiary hearing for May 18, 2010, to determine the amount of compensatoiy damages to be awarded. At the start of the hearing on May 18, 2010, the district court asked whether the defendants had filed a motion to set aside the default judgment. Counsel for the defendants replied that no motion had been filed. The district court then heard evidence related to the damages suffered by the COGIC as a result of being excluded from the Mascot property, including the testimony of an expert on real estate valuations. At the conclusion of the hearing, tire district court stated that it would award damages in the amount of $2000 a month from October 29, 2004, to April 13, 2005, and from April 2009, through September 30, 2009. In a journal entry entered on July 12, 2010, the district court took judicial notice of the record in the first lawsuit. It also found that the COGIC is “entitled to $24,000 in compensatory and monetary damages for the intentional conduct of the defendants in depriving [the COGIC] of their exclusive use of the property in question.” Further, the district court ordered the defendants to provide the COGIC with certain financial information and granted them until July 31, 2010, to pick up any of the personal items located on the Mascot property. Thereafter, the defendants timely filed a Notice of Appeal. Analysis Subject Matter Jurisdiction — Civil v. Ecclesiastical Matters On appeal, the defendants contend that civil courts lack subject matter jurisdiction over tire issues presented in this case because they arise out of the appointment of a pastor. In response, tire COGIC contends that this case involves a dispute over property rights — not a dispute about the right to appoint a pastor. Whether this court has subject matter jurisdiction is a question of law subject to unlimited review. See Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609, 244 P.3d 642 (2010). The First Amendment to the United States Constitution states, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Similarly, Section 7 of the Kansas Constitution Bill of Rights states, in part, that “[t]he right to worship God according to the dictates of conscience 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 “The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own,” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. __, 132 S. Ct. 694, 703, 181 L. Ed. 2d 650 (2012). Moreover, “the First Amendment ‘permit[s] hierarchical religious organizations to establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters.’ ” 132 S. Ct. at 705 (quoting Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich, 426 U.S. 696, 724, 96 S. Ct. 2372, 49 L. Ed. 2d 151 [1976]). “The jurisdiction of the courts to address matters involving church affairs is limited.” Church of God in Christ v. Bd. of Trustees, 26 Kan. App. 2d 569, 572, 992 P.2d 812 (1999). Neither state nor federal courts may undertake “ ‘the resolution of quintessentially religious controversies, whose resolution tire First Amendment commits exclusively to the highest ecclesiastical tribunals’ of the Church.” 132 S. Ct. at 705 (quoting Milivojevich, 426 U.S. at 720). Thus, “[pjurely theological questions and matters ecclesiastical in character must be determined by the authorities of the particular church involved according to its laws and usage.” New Jerusalem, 26 Kan. App. 2d at 572. Clearly, this court does not have subject matter jurisdiction over issues relating to the selection of a pastor or minister. See Hosanna-Tabor, 132 S. Ct. at 706. (“According the state the power to determine which individuals will minister to the faithful. . . violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.”). “However, when church-related controversies involve civil or property rights, the civil courts will take jurisdiction and decide the merits of the case in order to assure regularity of business practices and the right of private use and ownership of property.” New Jerusalem, 26 Kan. App. 2d at 572 (citing Gospel Tabernacle Body of Christ Church v. Peace Publishers & Co., 211 Kan. 420, 422, 506 P.2d 1135, reh. denied 211 Kan. 927, 508 P.2d 849 [1973]). In the present case, the question of Bishop Gilkey’s authority to appoint a pastor for Emmanuel Church is related to the property dispute. But the two issues are distinguishable. Although the dispute between the parties over the authority to appoint or call a pastor is an ecclesiastical issue, the dispute over property rights is a civil issue. Therefore, we conclude that the district court had subject matter jurisdiction to resolve the property dispute and we have subject matter jurisdiction to consider this appeal. Entry of Default Judgment We review a district court’s entry of default judgment for abuse of discretion. See Bazine State Bank v. Pawnee Prod. Serv., Inc., 245 Kan. 490, Syl. ¶ 1, 781 P.2d 1077 (1989); Lara v. Vasquez, 33 Kan. App. 2d 128, 130-31, 98 P.3d 660 (2004). “An abuse of discretion will be found only when no reasonable person would take the view of the trial court.” First Nat’l Bank in Belleville v. Sankey Motors, Inc., 41 Kan. App. 2d 629, 634, 204 P.3d 1167 (2009). K.S.A. 60-255(a) provides that “[ujpon request and proper showing by the party entitled thereto, the judge shall render judgment against a party in default.” (Emphasis added.) And “[fjailure to answer is prima facie a default.” Bazine State Bank, 245 Kan. at 493. Furthermore, all of the allegations set forth in a petition “are admitted when not denied in the responsive pleading.” K.S.A. 60-208(d). Here, it is undisputed that the defendants did not file an answer nor did they seek leave to file an answer out of time. Although the defendants filed two motions to dismiss, both were denied. As such, they had 10 days after the motions to dismiss were denied to file an answer or other responsive pleading. K.S.A. 60-212(a)(l). When they failed to do so, the COGIC moved for a default judgment under K.S.A. 60-255(a), and the district court appropriately held a hearing on the motion. In granting default judgment, the district court found that the defendants had not adequately explained why they failed to file an answer. The district court also found that the failure to answer was not an isolated incident and that the defendants had failed to comply with the rules of civil procedure on other occasions. Likewise, the district court found that the defendants had delayed the progression of the litigation. Thus, we conclude that the district court did not abuse its discretion by entering a default judgment in this case. It is also important to recognize that the defendants did not file a motion to set aside the default judgment. As a general rule, an issue not raised below cannot be raised on appeal. See In re Care & Treatment of Miller, 289 Kan. 218, 224-25, 210 P.3d 625 (2009). As such, the defendants did not preserve tireir objections to the district court’s entry of default judgment for appeal. Long before the adoption of the code of civil procedure, the Kansas Supreme Court held that a default judgment could be set aside if it was clearly erroneous on its face — even when no motion to set aside has been filed. See Williams v. Shrock, 118 Kan. 347, 235 P. 111 (1925). Although it is questionable whether this is still true, the result would be the same even if we were to review the default judgment under a clearly erroneous standard. For the same reasons we concluded that the district court did not abuse its discretion, we also find that tire default judgment entered by the district court was not clearly erroneous. Res Judicata and Collateral Estoppel The defendants contend that the district court should have dismissed this case based on res judicata and collateral estoppel. In response, the COGIC contends that these affirmative defenses have been waived because the defendants failed to raise these affirmative defenses in an answer. Likewise, the COGIC contends that because these affirmative defenses were waived, they cannot be considered on appeal. Res judicata and collateral estoppel are affirmative defenses. K.S.A. 60-208(c); see Estate of Belden v. Brown County, 46 Kan. App. 2d 247, 262, 261 P.3d 943 (2011). Under K.S.A. 60-208(c), affirmative defenses must be set forth in a defendant’s answer. If an affirmative defense is not asserted in an answer, it is waived. Turon State Bank v. Bozarth, 235 Kan. 786, Syl. ¶ 1, 684 P.2d 419 (1984); Coffman v. State, 31 Kan. App. 2d 61, 67, 59 P.3d 1050 (2002). An argument is abandoned on appeal if it is not supported with pertinent authority. See State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010). In the present case, the defendants have failed to come forward with any authority suggesting that their affirmative defenses were not waived by their failure to file an answer or other responsive pleading. In fact, the defendants do not even mention the waiver issue in their brief. Accordingly, we conclude that because the defendants did not file an answer, the af firmative defenses of res judicata and collateral estoppel have been waived as a matter of law. Failure to Name Corporation as a Tarty The defendants further contend that the default judgment should be reversed because the corporation that purportedly holds the title to the Mascot property was not named as a party to this action. In response, the COGIC contends that the default judgment is valid as to the defendants. Likewise, the COGIC points out that its first amended petition sought to have the district court disregard the corporation that it alleged was wrongfully created by the defendants and to quiet the title to the Mascot property. And it points out that it only sought to be declared the beneficial owner of the corporation in the alternative. According to the COGIC’s constitution, member congregations hold property in trust for the benefit of the COGIC. Specifically, the pertinent language in the constitution — which was quoted in Church of God in Christ v. Board of Trustees of Emmanuel Church of God in Christ, 2006 WL 2806859, at *4, and in New Jerusalem, 26 Kan. App. 2d at 574 — states: “ 'Real estate or other property may be acquired by purchase, gift, devise, or otherwise by local churches. Where real or personal property is acquired by deed, the instrument of conveyance shall contain the following clause, to wit: The said property is held in trust for the use and benefit of the members of the Church of God in Christ with National Headquarters in the City of Memphis, Shelby County, Tennessee, and subject to the Charter, Constitution, Laws and Doctrines of said Church, now in full force and effect, or as they may be hereafter amended, changed or modified by the General Assembly of said Church.1 ” (Emphasis added.) Here, the Mascot property was purportedly deeded to another unincorporated association on October 29, 2004. But the transferring deed did not contain die required trust language. Then, on November 1, 2004, a new corporation was formed and a few days later the Mascot property was purportedly deeded to the newly formed corporation. Once again, the deed did not contain the COGIC’s required trust language. The facts in the present case are nearly identical to the facts in New Jerusalem, 26 Kan. App. 2d at 575. Under the COGIC rules, a local church is permitted to incorporate. But incorporating does not change the trust relationship that exists between tire local church and the COGIC. When the defendants decided to create a corporation and deed the Mascot property to it, they were still required to hold ownership of the property in trust for the national church. 26 Kan. App. 2d at 580. As this court held in New Jerusalem, “a continual, longstanding, and formal affiliation with the National Church ... is sufficient to support an implied trust in favor of the National Church.” 26 Kan. App. 2d at 580. Thus, under New Jerusalem, the COGIC continued to be entitled to possession of the property regardless of the corporate status of the local church. Moreover, “[a] court of equity is not obliged to render the specific relief prayed for but may make such a decree as justice demands, under all the facts and circumstances as disclosed by the evidence.” Kline v. Orebaugh, 214 Kan. 207, 211, 519 P.2d 691 (1974). “One of the remedies afforded in equity for a breach of trust is known as the ‘trust pursuit rule.’ ” If a trustee in breach of trust transfers trust property to a person or entity that has notice of the trust, the transferee holds the property subject to the trust. 214 Kan. at 211. Likewise, a constructive trust may be imposed as an equitable remedy where property subject to a trust has been improperly transferred. See Nelson v. Nelson, 288 Kan. 570, 579-80, 205 P.3d 715 (2009). “[A] constructive trust remedy is essentially a tracing remedy, allowing recovery of the specific asset or assets taken from the plaintiff, any property substituted for it, and any gain in its value.” 288 Kan. at 580 (citing 1 Dobbs, Law of Remedies § 4.3[1], pp. 588-89 [2d ed. 1993]). Here, the trustee defendants did not have authority to transfer the Mascot property to the new corporation without including the mandatory trust language in the deed. The trustee defendants also did not have the authority to prohibit the COGIC or its designees from having access to the Mascot property. And it has long been held that it is appropriate to bring an action against the trustees to prohibit a local church from excluding officers of a national hierarchical church — even when the local church is incorporated. See Feizel v. Trustees German M.E. Society, 9 Kan. 592, 596-97, 1872 WL 661 (1872); St Paul Church, Inc. v. United Methodist Church, 145 P.3d 541, 558-59 (Alaska 2006). An individual is not insulated from liability for wrongful acts made in an individual capacity simply because he or she is a member of a corporation. See Kansas Comm’n on Civil Rights v. Service Envelope Co., 233 Kan. 20, 27, 660 P.2d 549 (1983). Moreover, the court can disregard a corporation when individuals use it to promote injustice or fraud. See Sampson v. Hunt, 233 Kan. 572, Syl. ¶ 3, 665 P.2d 743 (1983). As previously discussed, the trustee defendants transferred the property multiple times and formed the corporation in an attempt to avoid their trust obligation to the COGIC. We, therefore, conclude that the district court could properly trace or pursue the trust property and award the COGIC control of the corporation and the building without the necessity of making the corporation a party. Award of Damages Finally, the defendants challenge the award of damages in the amount of $24,000. Where, as in the present case, a hearing was held on the amount of damages following the entry of a default judgment, our review is limited to whether there is substantial evidence in the record to support the district court’s findings and conclusions. See Mansfield Painting & Decorating, Inc. v. Budlaw Services, Inc., 3 Kan. App. 2d 77, 84, 589 P.2d 643 (1979). The COGIC sought compensatoiy damages in its first amended petition against each of the defendants — jointly and severally — for trespass, tortious interference, conversion, misappropriation of name, and breach of contract. In light of the default judgment, each of the defendants was found to be liable on all of die claims asserted by the COGIC. As such, although some of the defendants were not trustees of Emmanuel Church, there were allegations in the first amended petition that each of them had acted in one or more ways to interfere with the COGIC’s property rights. And as a result of the defendants’ failure to answer, each of the allegations contained in the first amended petition was deemed to be admit ted. Thus, the only issue reviewable on appeal is the amount of damages. At the damage hearing, the COGIC presented the unopposed testimony of an expert witness, who valued the loss of use of the Mascot property as a result of the wrongful acts committed by the defendants at $2,000 a month. After considering the evidence, the district court awarded damages for the period of October 29,2004, to April 13, 2005, and for the period of April 2009 through September 30, 2009 — for a total damage award of $24,000. Accordingly, we conclude that there was substantial evidence presented by the COGIC to support the district court’s award of damages. Affirmed.
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McAnany, J.: Golden Rule Insurance Company appeals the district court’s decision affirming the Kansas Insurance Department’s order finding it in violation of two provisions of our unfair trade practices law, K.S.A. 40-2401 et seq. Golden Rule challenges the Department’s findings that it committed unfair claim settlement practices in violation of K.S.A. 40-2404(9)(d) (refusing to pay claims without conducting a reasonable investigation) and (f) (not attempting a good-faith effort to effectuate prompt, fair and equitable settlement of claims after liability has become reasonably clear). Dirk McClary was the intermediary between Patti Denney and Golden Rule in the acquisition of the policy in question. Golden Rule asserts it is not responsible for the acts and omissions of McClaiy because McClary was acting as an independent broker and as Denney’s agent, not as Golden Rule’s agent. We agree with Golden Rule and hold that Golden Rule should not be held responsible for McClary’s acts and omissions. Accordingly, we reverse the Department’s order finding Golden Rule in violation of our unfair trade practices law. Facts and Procedural History Denney and her husband, both self-employed, had family health insurance coverage through an individual policy with Blue Cross and Blue Shield of Kansas City (Blue Cross). The coverage was expensive, and Denney began looking for a more affordable policy. Apparently based upon her inquiries into alternative coverage, Denney’s name appeared on a list of insurance prospects maintained by Design Benefits, an independent insurance brokerage firm in Wichita. Design Benefits gave Denney’s name to McClary, a Kansas licensed insurance agent who officed in Overland Park, as somebody who might be interested in buying health insurance. McClary contacted Denney. McClary was affiliated with Design Benefits as well as another Kansas independent brokerage firm named Hosfield. He was also affiliated with USA Benefits Group, which changed its name to America’s Health Care Plan, a brokerage firm located in Illinois that is licensed in Kansas and markets insurance products of Golden Rule. These brokerage firms apparently had contracts with various insurance companies to market their insurance products in Kansas. McClary was not a captive agent of Golden Rule; that is, he was not an employee of Golden Rule soliciting business solely for that company. McClary submitted applications for health insurance policies to several insurance companies doing business in Kansas that competed with one another for insurance business. McClaiy’s contract with Golden Rule was entitled an “Independent Broker’s Contract,” and it clearly stated that McClaiy was not an agent of Golden Rule. During September 2007, Denney met with McClaiy in her office to discuss Denney’s insurance coverage options. He gave Denney his business card which indicated he was affiliated with USA Benefits but made no reference to Golden Rule. Two of Denney’s employees, JoAnn Combs and Jodi Davis, were present during the meeting because they were also interested in securing new insurance policies. Davis testified that she believed that McClary was representing Golden Rule because McClaiy held himself out as its representative. Combs also believed that McClary represented Golden Rule. McClaiy testified that he did not take the time to explain his agency agreement to Denney. McClary referred to himself as an agent rather than a broker. McClary confirmed that he received a commission from Golden Rule for obtaining Denney’s medical policy. Denney did not know the difference between an agent and a broker, and she “placed her faith” in McClary and the information he was providing to her. Denney had a histoiy of surgeries and procedures relating to digestive issues. Denney informed McClary of her medical condition and her previous surgeries because she did not want to risk losing health insurance for her family. Combs confirmed that Denney told McClary about these medical conditions at the beginning of the meeting. Denney told McClary the dates of her previous surgeries, including the fact that she had hernia surgery in the previous 6 months. McClary first submitted Denney s application, disclosing her digestive conditions, to Assurant Health, a company that sells insurance products that are underwritten by the Time Insurance Company. Denney’s application did not receive favorable consideration, so McClary contacted Denney by phone and received her authorization to submit an application on her behalf to another insurance company, Golden Rule, based on the information that she had previously provided to him. Golden Rule is a competitor of Assurant Health and Time Insurance Company, and these two companies are not affiliated in any way with Golden Rule. Denney testified that McClaiy told her “not to worry” because Golden Rule would go back only 90 days into her medical histoiy. McClaiy denied making any such assurance. The application McClaiy submitted to Golden Rule did not disclose Denney’s preexisting medical condition. Denney did not have the opportunity to review or sign the Golden Rule application before its submission. McClary could not explain why Denney’s information was not accurately reported to Golden Rule except to say that he made a mistake. Denney did not review the application prior to its submission because McClary received her consent to submit the application over the phone. However, the application contained a section immediately above the electronic signatures entitled “STATEMENT OF UNDERSTANDING” that instructs the applicants to “[r]eview the completed application and read the section below carefully before signing.” The section states: “I certify that I have personally completed this application. I represent that the answers and statements on this application are true, complete, and correcdy recorded. I Understand and Agree that: (1) this application and the payment of the initial premium do not give me immediate coverage; (2) there will be no benefits for any loss incurred in the first year of coverage due to a preexisting condition; (3) incorrect or incomplete information on this application may result in voidance of coverage or claim denial; (4) this completed application, and any supplements or amendments, will be made a part of any policy which may be issued; (5) the broker is only authorized to submit the application and initial premium, and may not change or waive any right or requirement; and (6) continuation of other coverage existing on the Golden Rule effective date for more than 90 days after the Golden Rule effective date will void this coverage.” The application also contains a section entitled “BROKER STATEMENT” that directs the broker to “[rjeview the completed application before signing below.” Directly above McClaiy’s electronic signature, it states that “[e]ach question on the application was completed by the applicant(s).” Of course this did not happen. On October 13,2007, Golden Rule issued a policy covering Denney and her family members. Denney then cancelled her policy with Blue Cross. In January 2008, Denney s physician, Dr. Mark Strehlow, sent a letter to Golden Rule requesting advance approval of coverage under tire policy for surgery for Denney. Strehlow’s letter stated that Denney had an extensive medical history related to various digestive conditions. Strehlow said that Denney was scheduled to undergo “abdominal reconstructive surgery.” Strehlow later testified that Golden Rule denied payment for the procedure, and he immediately requested that Golden Rule reconsider. Strehlow told Golden Rule that Denney was experiencing a number of gastric problems and she “certainly does not feel she can wait three to six months to have this procedure done.” Golden Rule denied that it rejected Strehlow’s request and claims that it simply took the matter under advisement pending further investigation. From late January 2008 into April 2008, Golden Rule conducted an investigation into Denney’s medical history and her application for insurance. Golden Rule requested more information regarding Denney’s medical history from Denney’s various physicians. On April 28, 2008, Golden Rule denied coverage for Denney’s proposed surgery based on the fact that the conditions documented in Denney’s medical records were not disclosed in her application for insurance. Golden Rule stated that if Denney’s medical history had been accurately disclosed, Golden Rule’s offer of insurance would have contained a rider that excluded all coverage for digestive system diseases or disorders. Golden Rule infoi-med Denney that “we need to take the same action we would have taken if we had been aware of this information when you applied for insurance.” Golden Rule offered to keep the policy in force but exclude coverage for any digestive system problems. When Denney refused to accept the exclusionary rider, Golden Rule cancelled the policy. On May 5, 2008, Denney filed a complaint with the Department based on Golden Rule’s refusal to provide coverage for treatment of her preexisting medical condition. Denney asserted that Mc-Clary misrepresented how far back Golden Rule would examine her medical history. Responding to the complaint, McClary denied knowledge of Denney’s medical conditions with the exception of a hernia repair in July 2007. McClary stated that he was “astonished to learn” that the information regarding Denney’s hernia repair was not accurately represented on the application for insurance that he filled out on Denney’s behalf. Golden Rule asserted that McClary was an independent insurance broker and not Golden Rule’s agent. On August 13, 2008, the Department issued an ex parte emergency order finding that Golden Rule had violated K.S.A. 40-2404(9)(d), (f) and (i), which regulate unfair claim settlement practices in the business of insurance. The emergency order stated that Golden Rule had wrongfully denied Denney coverage for a medically necessary procedure and ordered Golden Rule to pay Denney’s claim. On August 26, 2008, the Department filed an action in the district court seeking civil enforcement of the emergency order. But the district court determined that tire evidence did not establish an emergency and stayed the emergency order pending final disposition of the claims against Golden Rule. The district court ul timately remanded the matter to the Department for an administrative hearing. At the administrative hearing on February 19, 2009, McClary testified that he initially submitted Denney’s application for insurance to Assurant Health. After learning that Assurant Health would not issue Denney a policy, McClary withdrew the application. He then called Denney and requested permission to submit her application to Golden Rule based on the information that she had previously provided to him. Denney agreed to McClary’s plan to submit her application to Golden Rule, but the application submitted on her behalf did not disclose her medical condition or past surgery. McClary testified that the omission was unintentional and claimed that he must have made a mistake. Denney testified to her dealings with McClary and her belief that he was acting as an agent for Golden Rule. She acknowledged that all the representations about McClary’s status came from “the words out of his mouth” and not from anything Golden Rule had provided to enable McClary to make the sale. On May 28, 2009, the Assistant Commissioner of Insurance (on behalf of the Department) orally announced his decision, finding that Golden Rule had violated K.S.A. 40-2404(9)(d) and (f) but not K.S.A. 40-2404(9)(i). The Assistant Commissioner concluded that Golden Rule should pay for the reconstructive surgery as well as for Denney’s future medical services. The Department entered its order on September 3, 2009. On September 28, 2009, Golden Rule filed a petition for reconsideration pursuant to K.S.A. 77-529(a)(l). Golden Rule argued there was insufficient evidence to establish any unfair claim settlement practice. Following a hearing on October 15, 2009, the Department denied Golden Rule’s motion for reconsideration and issued its final order. Golden Rule then filed a petition for judicial review under the Kansas Judicial Review Act (KJRA), K.S.A. 2011 Supp. 77-601 et. seq. On July 16, 2010, the district court affirmed the Department’s final order and ruled that Golden Rule violated K.S.A. 40-2404(9)(d) and (f) of the Kansas unfair trade practices law. Golden Rule’s subsequent motion to alter or amend the memorandum decision was denied, and Golden Rule appealed to this court. Discussion The scope of judicial review of a state administrative agency action is defined by the KJRA. See Cochran v. Kansas Dept. of Agriculture, 291 Kan. 898, 906, 249 P.3d 434 (2011). The party asserting the invalidity of an agency’s action bears the burden of proving invalidity. K.S.A. 2011 Supp. 77-621(a)(l). Under the KJRA, we exercise the same statutorily limited review of the agency’s action as does the district court, as though the appeal had been made directly to the appellate court. Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010). K.S.A. 2011 Supp. 77-621(c) articulates eight circumstances in which a court may grant relief. It states in relevant part: “The court shall grant relief only if it determines any one or more of the following: “(4) the agency has erroneously interpreted or applied the law; “(7) die agency action is based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or “(8) the agency action is otherwise unreasonable, arbitrary or capricious.” Under the KJRA, we review the record as a whole to determine whether the Department’s findings are supported by substantial evidence. We grant relief if we determine that “the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole.” K.S.A. 2011 Supp. 77-621(c)(7). As amended, K.S.A. 2011 Supp. 77-621 now defines “in light of die record as a whole” to include the evidence both supporting and detracting from an agency’s finding. We must now determine whether the evidence supporting the agency’s factual findings is substantial when considered in light of all the evidence. K.S.A. 2011 Supp. 77-621(d); Redd v. Kansas Truck Center, 291 Kan. 176, 183, 239 P.3d 66 (2010). On the other hand, our interpretation of contracts and of the applicable statutes is de novo. Powell, 290 Kan. at 567; Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900-01, 220 P.3d 333 (2009). When an administrative agency acts in a “court-like manner,” the appellate courts are equally capable of the task of statutory interpretation. In re Tax Exemption Application of Kouri Place, 44 Kan. App. 2d 467, 471-72, 239 P.3d 96 (2010). We construe a written contract and determine its legal effect without regard to the agency’s or the district court’s construction of the contract. Shamberg, 289 Kan. at 900-01; Warner v. Stover, 283 Kan. 453, 456, 153 P.3d 1245 (2007). Overview of Kansas unfair trade practices law, KS.A. 40-2401 et seq. The purpose of K.S.A. 40-2401 et seq. is to regulate insurance trade practices “by defining, or providing for the determination of, all such practices in this state which constitute unfair methods of competition or unfair or deceptive acts or practices and by prohibiting the trade practices so defined or determined.” K.S.A. 40-2401. K.S.A. 40-2403 prohibits any person in Kansas from engaging in any unfair method of competition or any unfair or deceptive act or practice in the business of insurance. The phrase “unfair methods of competition and unfair or deceptive acts or practices in the business of insurance” includes “unfair claim settlement practices” as specified in K.S.A. 40-2404(9). The provisions of K.S.A. 40-2404(9) do not affect the substantive terms of the insurance policy; rather, the “statutory provisions provide guidelines and duties for how the contractual relationship is to be entered into and how claims are to be processed.” Davis v. John Alden Life Ins. Co., 746 F. Supp. 44, 48 (D. Kan. 1990). Any person who commits misconduct is subject to the imposition of civil remedies and penalties authorized by law. K.S.A. 40-2407. K.S.A. 40-2404 provides a list of prohibited acts. In this case, the district court found that Golden Rule violated K.S.A. 40-2404(9)(d) and (f). The relevant portions of K.S.A. 40-2404 state: “(9) Unfair claim settlement practices. It is an unfair claim settlement practice if any of tire following or any rules or regulations pertaining thereto are: (A) Committed flagrantly and in conscious disregard of such provisions; or (B) committed with such frequency as to indicate a general business practice. “(d) refusing to pay claims without conducting a reasonable investigation based upon all available information; “(f) not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear.” If the Department properly determines that Golden Rule engaged in any such unfair claim settlement practice, the Department may take discretionary action in accordance with K.S.A. 40-2407(a). In this case, the Department found, and the district court upheld, violations of K.S.A. 40-2404(9)(d) and (f) based on Golden Rule’s handling of Denney’s request for a predetermination of coverage and of Denney’s claim for benefits under the policy. Did Golden Rule act flagrantly and in conscious disregard of the provisions of our unfair trade practice law when it forced Denney to either accept the exclusionary rider or have her insurance policy voided? Golden Rule asserts that it did not violate K.S.A. 40-2404 by forcing Denney to accept the indefinite exclusionary rider or have her insurance policy voided. Golden Rule also contends that the agency made no findings to support its implicit ruling that it acted “flagrantly and in conscious disregard” of its duties under tírese statutory provisions or that it made a general business practice of engaging in such improper conduct as required by K.S.A. 40-2404(9)(A), (B). The district court recognized that the Department failed to make explicit findings of fact regarding its conclusion that Golden Rule violated K.S.A. 40-2404(9)(d) and (f). In reviewing the record as a whole to determine whether substantial evidence supports the Department’s findings, the district court seems to have reverse-engineered a finding of flagrant conduct and conscious disregard of statutory duties, or a history of misconduct, when it concluded: “[T]he Hearing Officer based his decision on all the information contained within the Record. The Record is almost 2,900 pages of documents, including transcripts, depositions, and all the other documents that were filed by the parties. Moreover, the Hearing Officer’s decision was also based on his own observations made over the course of the hearing. The Hearing Officer stated in his decision that the two statutes in question ‘involve claims,’ and that ‘this claim should be paid.’ These statements, along with all the other findings, taken in light of the record as a whole, show that Golden Rule should not only have paid the claim, but that its failure to do so along with its investigation and handling of the matter after the request was made, could be understood by a reasonable person to demonstrate that Golden Rule’s actions were either ‘committed flagrantly and in conscious disregard’ of the statutes in question, or ‘committed with such frequency as to indicate a general business practice.’ ” Apparently the district court could not identify any specific act that was committed flagrantly and in conscious disregard of Golden Rule’s statutory duties, nor could it identify a history of misconduct. Neither can we. Golden Rule maintains that its action in requiring Denney to accept an exclusionary rider or to have her insurance policy voided cannot be found to be in violation of K.S.A. 40-2404(9)(d) and (f) because Golden Rule acted reasonably in its investigation of its obligation to provide medical coverage to Denney. Golden Rule persuasively argues that it could void the policy or deny the claim based on misrepresentations on the policy application submitted by McClary, who was acting as Denney’s agent in this transaction. The record contains undisputed evidence that Denney’s medical history and conditions were not disclosed in the application submitted to Golden Rule. Under the clear language of the insurance application and policy, Golden Rule had the right to deny coverage. In making its oral findings, the Department, seeming to negate any findings of flagrant conduct and conscious disregard of statutory duties or a history of misconduct, recognized that this case has more than one “victim”: “There are many victims in this case. I cannot hold Ms. Denney’s position as anything but being a victim, but I also want to make clear that Golden Rule has been victimized as well. There is no dispute in any of the findings of fact that I’ve indicated that indicates that they received anything remotely suggesting Ms. Denney’s prior condition and therefore, they made in good faith a judgment as to her underwriting — their underwriting requirements that did not include pertinent information. Are they bound to it? “The question revolves around the obligations of dieir appointed agent.” The Department found that Denney was never given an application to review or sign and found that it was clear that she had not intentionally made an effort to defraud Golden Rule. With this in mind, the Department found that Golden Rule owed a duty to die insured: “The contract, however, that I am interested in is the one between Ms. Denney and Golden Rule. Selling of insurance in the State of Kansas implies not only a fiduciary responsibility from the agent, but also one from the company. The company, by appointing an agent to represent them, has accepted the fiduciary responsibility of die agent and no contract between die company and the agent can abrogate die company’s responsibility to the insured. “Therefore, because it is —it is binding and absent of the evidence of fraud, I can only indicate to Golden Rule diat they are obligated to pay for the procedure in question both contractually and morally.” The Department then found Golden Rule to be in violation of K.S.A. 40-2404(9)(d) and (f). The Assistant Commissioner stated: “It is uncomfortable for me to do so, because I do reiterate that Golden Rule, too, is a victim in this matter and therefore, it is hard to extrapolate a violation of the consumer unfair consumer practices. However, they’ve had ample opportunity in this regard.” Under the policy reasons for the ruling, the Department concluded: “Absent fraud by the consumer, companies are required to accept the representations of their appointed agents to prevent unjustified harm to consumers.” In finding that Golden Rule violated K.S.A. 40-2404(9)(d) and (f), both the Department and the district court focus on the essential issue of McClary’s role and his relationship with Golden Rule and with Denney. Whose agent was he? We will address this issue first before determining whether we need to turn to the statutorily necessary predicate to Golden Rule’s liability: conduct by Golden Rule which was flagrant and in conscious disregard of its duties or committed with such frequency as to indicate a general business practice. Was McClary the agent of Golden RuleP Golden Rule contends that McClary was acting as an independent broker representing Denney and not as an agent procuring insurance on Golden Rule’s behalf. Golden Rule specifically points to its written agreement with McClary entitled “Independent Broker’s Contract,” which makes it clear that McClary was not an agent of Golden Rule. What constitutes a principal/agent relationship and whether there is competent evidence reasonably tending to prove such a relationship is a question of law. However, resolution of conflicting evidence which might establish the existence of a principal/agent relationship is a question for the finder of fact. Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 446, 827 P.2d 24 (1992). The Department concluded that McClary was Golden Rule’s agent. The Department made the sweeping declaration that “[n]o contract between the company and the agent can abrogate the company’s responsibility to the insured.” The district court also ruled that because Golden Rule appointed McClary as a soliciting agent, McClary’s actions are imputed to and the responsibility of Golden Rule. McClary’s contract with Golden Rule, entitled “Independent Broker’s Contract,” authorized McClary to: (1) obtain and submit applications for insurance products to Golden Rule on behalf of persons for whom McClary is acting as a broker; and (2) collect initial premiums in exchange for official receipts furnished by Golden Rule. The agreement expressly states: “Independent Status. You are an independent contractor relative to the Company. Although this Contract entitles You to submit applications to the Company on behalf of prospective Clients, You shall not represent to anyone that You act on behalf of the Company, except as expressly set forth in this Contract. “Nothing contained in this Contract, or any written material or correspondence of the Company, shall be construed to create an employer-employee or principal-agent relationship between You and the Company. The parties recognize that: “(a) Due to a particular state’s licensing requirements, You may be appointed in that state as an 'agent’; and “(b) From time to time the Company or others may refer to You as an ‘agent.’ These references may occur because of the general use of these words in everyday vocabulary. “It is expressly intended and agreed that You are an independent contractor, acting as the agent of Your Clients and not as Our agent. You are free to exercise Your own judgment as to the time, place, and manner of dealing with Your Clients and potential Clients.” Golden Rule asserts that its written agreement with McClary, which prohibits him from acting as an agent of Golden Rule or in any capacity except as an independent broker, does not establish any cognizable legal basis for holding Golden Rule responsible for McClary s acts or omissions. We agree. There is no evidence of an express principal/agent relationship between Golden Rule and McClaiy based on the Independent Broker s Contract. Under the Uniform Insurance Agents Licensing Act, K.S.A. 2011 Supp. 40-4901 et seq., a person must be licensed as an agent in order to sell, solicit, or negotiate insurance in Kansas. See K.S.A. 2011 Supp. 40-4905(a). Under the act, the term “broker” means “insurance agent.” K.S.A. 2011 Supp. 40-4902(k). But the license is merely a regulatory permit. The issuance of a license does not define the agent’s powers to bind an insurance company, nor does it change the general law of agency. Eikelberger v. Insurance Co., 107 Kan. 9, 12, 190 P. 511 (1920). As the Eikelberger court noted, the license issued by the Insurance Department to a local insurance agent is “merely the state’s permit for him to ply his business, and a tacit admission by the insurance superintendant that so far as he is advised the licensee is an honest man, or at least a man of fair business reputation.” 107 Kan. at 11. In Kansas, agency is: “[A] contract, either express or implied, by which one of the parties confides to the other the management of some business to be transacted in tire party’s name, or on the party’s account, and by which that other assumes to do the business and to render an account of it. Determination of what constitutes agency and whether there is any competent evidence reasonably tending to prove the existence of agency is a question of law. An express agency exists if tire principal has delegated authority to the agent by words which expressly authorize the agent to do a delegable act. An implied agency may exist if it appears from the statements and conduct of the parties and other relevant circumstances that the intention was to clothe tire agent with such an appearance of authority that when tire agency was exercised it would normally and naturally lead others to rely on the person’s acts as being authorized by the principal. Professional Lens Plan, Inc. v. Polaris Leasing Corp., 238 Kan. 384, Syl. ¶¶ 4, 5, 6, 7, 710 P.2d 1297 (1985).” Barbara Oil, 250 Kan. at 446. It has long been the law of this state that agency must be established by some action of the principal, not merely based on acts or representations of the claimed agent. As stated in Wilcox v. Eadie, 65 Kan. 459, 463, 70 P. 338 (1902) (quoting Mechem on Agency, § 276 [1889]): “ ‘As has been seen, the law indulges in no bare presumptions that an agency exists; it must be proved or presumed from facts; that the agent cannot establish his own authority, either by his representations or by assuming to exercise it; that an authority cannot be established by mere rumor or general reputation; that even a general authority is not an unlimited one, and that every authority must find its ultimate source in some act of the principal. Persons dealing with an assumed agent, therefore, whether the assumed agency be a general or special one, are bound, at their peril, to ascertain not only tire fact of the agency but the extent of authority, and in case either is controverted, the burden of proof is upon them to establish it.’ ” Generally, a broker or agent who is employed to procure insurance becomes the agent of the person for whom the insurance is procured. “There are many exceptions to the rule, however, and the question cannot be answered absolutely, but depends on the circumstances of the particular case. For some purposes and under certain circumstances, a broker may represent either the insured or insurer, or both. [Citation omitted.]” Stamps v. Consolidated Underwriters, 205 Kan. 187, 197, 468 P.2d 84 (1970). The court in Stamps did not resolve the agency question because the insurer had agreed at trial that Kimple, the agent, was the company’s agent and neither party had explored the scope of Kimple’s agency or his authority. The court did note, however, that “[fjrom the brief testimony on the point it appears that Kimple was licensed with Consolidated and with a number of other insurers which probably establishes him as an independent agent or broker.” 205 Kan. at 197. Here, the Department found that McClaiy was an agent of Golden Rule. Thus, it is our duty to ensure that the evidence that supports this finding is substantial when viewed “in light of the record as a whole,” K.S.A. 2011 Supp. 77-621(c)(7) and (d), and to determine de novo whether the legal conclusion that a principal/ agent relationship exists properly flows from those established facts. The Department’s findings of fact are rather confounding. In its written Final Order tire Department found that Denney “was ignorant of the health insurance market and she was not assisted appropriately by her agent.” (Emphasis added.) Then, the Department declared that “[t]he agent was appointed by Golden Rule” and “actions of agents in Kansas bind their insurance companies.” With respect to the scope of tire agency, the Department found that “[a]n insurance company which appoints an agent accepts the fiduciary responsibility of the agent and no contract between the company and its appointed agent can abrogate the company’s responsibility to the insured,” thereby apparently rendering the contract between the claimed principal and agent entirely immaterial. The Department does not explain whether the agency relationship it found between McClary and Golden Rule was express or implied. If express, the only thing it points to is the fact that McClaiy was licensed by the state and his license indicated he sold policies issued by a number of companies, including Golden Rule. (We disposed of this issue earlier.) If implied, there is no finding of fact that we can identify in support of this theory. Here, the written contract between Golden Rule and McClaiy expressly limited McClaiy’s role with Golden Rule. It explicitly provided that McClary was authorized only to “obtain and submit applications” and that he was “acting as a broker.” The contract indicated that McClaiy was not its express agent, and we find no evidence in the record to the contrary. In a more measured tone, the district court affirmed the decision of the Department by predicating liability on the existence of an implied rather than express agency. The court recognized the proposition in Barbara Oil, 250 Kan. at 448, that “[a]n agency will not be inferred because a third person assumed that it existed, nor because the alleged agent assumed to act as such, nor because the conditions and circumstances were such as to make such an agency seem natural and probable.” The district court concluded that “there must be some circumstances which lead to an inference that Golden Rule imputed more authority to Mr. McClary than was included in the [independent broker s contract].” But the district court does not identify the specific facts by which a principal/agent relationship is implied. Rather, the court relies on the notion that McClary was a “soliciting agent” as described in Earth Scientists v. United States Fidelity & Guar., 619 F. Supp. 1465 (D. Kan. 1985), in order to impute McClary’s conduct to Golden Rule. We will discuss Earth Scientists further below. If McClary is an agent of Golden Rule, Kansas caselaw clearly provides that Golden Rule is bound by his failure to correctly fill out Denney’s application for insurance. This principle is consistent with the holdings in a number of cases relating to different aspects of the principal/agent relationship in the insurance business. See Chism v. Protective Life Ins. Co., 290 Kan. 645, 660-61, 234 P.3d 780 (2010); Schneider v. Washington National Ins. Co., 200 Kan. 380, 437 P.2d 798 (1968); Cooley v. National Life & Acc. Ins. Co., 172 Kan. 10, 238 P.2d 526 (1951); Stewart v. Commonwealth Casualty Co. 137 Kan. 919, 22 P.2d 435 (1933); Shinn v. Benefit Association, 102 Kan. 134, 169 P. 215 (1917); cf. Iowa National Mutual Ins. Co. v. City of Osawatomie, 458 F.2d 1124 (10th Cir. 1972). These are all cases cited and relied upon by the district court. We find it interesting that in none of these cases was agency at issue. In each case, upon close examination, the insurance company conceded that the insurance agent in question was the company’s agent. But the nub of the district court’s holding is its conclusion that McClary was a soliciting agent as defined in Earth Scientists. In that case, the court denied summary judgment because there remained a genuine issue of fact as to whether the defendant fraudulently induced the plaintiff to purchase the policy. The defendant argued that it could not be held liable for the acts of agent Kinnard because he was merely defendant’s soliciting agent. Thus, the insurance company admitted that insurance agent Kinnard was its agent in procuring the policy. Further, there was evidence that the defendant agreed to indemnify Kinnard against any liability cause by the company. 619 F. Supp. at 1467, 1472-73. The court in Earth Scientists, 619 F. Supp. at 1472, recognized the holding in Rosedale Securities Co. v. Home Ins. Co., 120 Kan. 415, 421-22, 243 P. 1023 (1926), that an independent broker is the agent of the proposed insured rather than the insurer for the purpose of obtaining an insurance policy. The court in Rosedale declared that an insurance broker is one “who solicits contracts from the public under no employment from any special company, but, having secured an order, places the insurance with a company selected by the [proposed] insured, or, in the absence of any selection by him, then with the company selected by such broker.” 120 Kan. 415, Syl. ¶ 1. An insurer is not responsible for die actions of an independent broker. The court in Earth Scientists distinguished Rosedale by stating: “Rosedale deals only with independent brokers and not soliciting agents. It holds that an independent broker is the agent of the insured rather than the insurer for the purpose of obtaining the policy. Id. at 421-22, 243 P. at 1026. Thus, an insurer may not be held liable for any representations made by the broker. Rosedale defines an insurance broker as ‘one who solicits contracts from the public under no employment from any special company, but, having secured an order, places the insurance with a company selected by the [proposed] insured or, in the absence of any selection by him, then with the company selected by such broker.’ 120 Kan. at 415, Syl. ¶ 1, 243 P. at 1023. “A soliciting agent, on the other hand, is defined as one who takes applications for insurance, forwards them to tire company that issued the policy, collects the premiums and delivers the policies to the insured. Pettijohn v. The Saint Paul Fire and Marine Ins. Co., 100 Kan. 482, 485, 164 P. 1096, 1097 (1917).” Earth Scientists, 619 F. Supp. at 1472. The notion of a “soliciting agent” involves much more than the Earth Scientists court acknowledged. In Pettijohn v. Insurance Co., 100 Kan. 482, 164 P. 1096 (1917), the source of the district court’s notion of a soliciting agent, the soliciting agent in question was William Weikert. “Weikert was the representative of defendant at Norton through whom plaintiff had procured his policy. ... It appears that Weikert had been the agent of defendant at Norton for twelve or thirteen years, that he took applications for insurance and adjusted losses on farm property, and he had authority to issue certain kinds of policies on city property. His territoiy extended from Salina to the Colorado line. . . . “... He was recording agent for the insurance of city property, and for a number of years had acted for the company in adjusting losses in a large district.” Pettijohn, 100 Kan. at 483-84. There is no evidence that McClary had a relationship with Golden Rule anywhere near resembling the relationship between Weikert and St. Paul Fire & Marine Insurance Co. There is no evidence that McClary was Golden Rule’s designated representative in Denney’s community. There is no evidence that McClary had a designated territory within which he could solicit business for Golden Rule. There is no evidence that McClary had the authority to issue policies on behalf of Golden Rule or adjust loss claims made by Golden Rule’s insureds. McClary’s relationship with Golden Rule follows the model described in Rosedale, not the models in Earth Scientists and Pettijohn. The description of the insurance broker in Rosedale fits McClary to a T: one “who solicits contracts from the public under no employment from any special company, but, having secured an order, places the insurance company selected by the [proposed] insured, or, in the absence of any selection by him, then with the company selected by such broker.” 120 Kan. 415, Syl. ¶ 1. An insurer is not responsible for the actions of an independent broker, such as the broker found in Rosedale and McClary in the case now before us. McClary first attempted to obtain coverage for Denney from Assurant Health, a competitor of Golden Rule in the health insurance market. But Time Insurance Company, the carrier to whom Assurant Health referred Denney’s application for underwriting, rejected Denney’s application. Upon learning of the rejection, whom did McClary consult about what he should do next in attempting to obtain coverage for Denney? He consulted with Denney. McClary was an independent insurance broker who had access to several insurers that wrote health insurance policies in Kansas. His recommendation and ultimate selection of Golden Rule did not alter the fact that in doing so he was acting on behalf of Denney, not on behalf of Golden Rule. We find no evidence that McClary was employed solely as a captive agent or as a soliciting agent of Golden Rule. The evidence in the record does not support the Department’s finding that McClary was acting as Golden Rule’s agent. We hold, in light of all of tire evidence examined under the standard stated in K.S.A. 2011 Supp. 77-621(c)(7) and (d), that McClaiy was acting as an independent broker and, in this transaction, was the agent of Denney, not the agent of Golden Rule. Thus, Golden Rule was not responsible for McClaiy s acts and omissions. Upon learning that Denney’s health information was not accurately represented on the application submitted by her agent, Golden Rule initiated a prompt and reasonable investigation from Januaiy 2008 to April 2008. With this determination, we need not consider further the district court’s conclusion that “Golden Rule’s actions were either ‘committed flagrantly and in conscious disregard’ of the statutes in question, or ‘committed with such frequency as to indicate a general business practice.’ ” We conclude that Golden Rule did not engage in unfair claim settlement practices in violation of K.S.A. 40-2404(9)(d) by refusing to pay Denney’s claim without conducting a reasonable investigation and K.S.A. 40-2404(9)(f) by failing to make a good-faith effort to effectuate a prompt, fair, and equitable settlement of Denney’s claim after liability became reasonably clear. Accordingly, we reverse the district court’s order upholding the Department’s finding that Golden Rule violated K.S.A. 40-2404(9)(d) and (f). Golden Rule also challenges the rulings by the Department and the district court that it was required to make a predetermination of coverage under the plain language of the insurance policy. McClary failed to accurately report Denney’s medical history in the policy application. Neither Denney nor Golden Rule was complied: in this failure to disclose. Nevertheless, in failing to accurately report Denney’s medical history, we have determined that Mc-Clary was acting as Denney’s agent at the time. Thus, Golden Rule was entitled to exclude coverage for Denney’s anticipated surgery, and the issue whether Golden Rule should have predetermined that Denney had coverage becomes moot. Accordingly, we will not address this claim of error. Reversed.
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Atcheson, J.: The United States Constitution draws a line at the threshold of a person’s home over which law enforcement officers may not step without a warrant from a judge or exigent circumstances so compelling as to override that fundamental right. The Fourth Amendment’s prohibition against unreasonable searches of dwellings or seizures of their occupants reflects a tenet the founders considered essential to the ordered liberty they fought a war to achieve and then cherished as this nation matured. That prohibition is no less significant nearly two and a half centuries into this country’s maturation. The comparatively mundane facts of this case belie the magnitude of the constitutional right and the significance of the constitutional issue — when government agents may claim exigency to override Fourth Amendment protections of citizens in their own homes. I. Factual and Procedural History The Douglas County District Court denied a motion to suppress evidence a Lawrence police officer obtained after she stuck her foot in a garage door to keep it from closing and tiren entered a private home to search and seize Defendant Troy E. Dugan based on a reported misdemeanor traffic offense. The district court found the officer’s actions did not offend the Fourth Amendment to the United States Constitution. Although the question might be closer than some, we do not share the district court’s tolerance for the governmental breach of a private residence and, therefore, reverse that ruling with directions the motion be granted. The salient facts may be set forth in short order. About 1 p.m. on September 19,2009, Dugan was driving his black SUV in downtown Lawrence when he rear-ended a sedan that had lawfully stopped at an intersection. Rather than stopping, checking on the welfare of the other driver, and exchanging insurance information as the law required, Dugan drove off. Several witnesses saw the collision and furnished general physical descriptions of Dugan. Someone caught tire tag number on Dugan’s SUV and informed the police. The police dispatcher then put out a radio call with a description of the SUV, its tag number, Dugan’s name and address, and the vehicle’s involvement in a hit-and-run accident resulting in a personal injury. Leaving the scene of such an injury accident is a Class A misdemeanor under state law, K.S.A. 8-1602, and the comparable municipal ordinance. Lawrence Police Officer Laurie Scott heard the dispatch and positioned her patrol car on a side street in anticipation the SUV would pass by her going from the scene of the collision to Dugan’s residence. Scott’s hunch proved prescient. An SUV matching the dispatcher’s description passed, and Scott began to follow it. Scott saw no damage to the SUV and could not get close enough to make out the tag number. She did not engage the emergency equipment on her patrol car or otherwise attempt to stop the SUV. Scott later testified that tire SUV may have sped up some, but she saw nothing suggesting any traffic violations as she followed. The SUV made a turn into the driveway of the address identified as Dugan’s. The driver apparently activated an automatic garage door opener and drove into the garage. Scott engaged the emergency lights on her patrol car after she pulled into the driveway. As the garage door was coming down, Scott confirmed the tag on the SUV matched the one in the dispatch. She got out of her car, approached the closing door, and stuck her foot beneath it, thereby triggering a safety mechanism causing the door to open. Scott entered the garage and confronted Dugan. Dugan displayed signs of intoxication — he was unsteady on his feet; his speech was slurred; he had difficulty getting his driver’s license in response to Scott’s request; and he smelled of alcohol. After a second Lawrence police officer arrived, Dugan said he was aware of the collision and admitted having several beers. Dugan performed poorly on standard field sobriety tests. He was arrested and refused to take a breath test. The Douglas County district attorney charged Dugan with felony driving under the influence in violation of K.S.A. 8-1567. Dugan had three past DUI convictions. He was also charged with several misdemeanor driving violations. As it turned out, the driver of the other vehicle had injuries so minor she sought no medical attention. The prosecutor eventually reduced that charge to the lesser misdemeanor of leaving the scene of a noninjury accident. But that reduction has no bearing on the legal issues on appeal. Dugan filed a motion to suppress the evidence the Lawrence police obtained after Officer Scott entered the garage of his home, including the indicators of his intoxication, his performance on the field sobriety tests, his statements, and his refusal of the breath test. The district court conducted an evidentiary hearing and denied the motion. Officer Scott was the State’s only witness at the hearing; Dugan testified briefly in support of the motion. The district court tried Dugan on stipulated facts, found him guilty of the DUI and related traffic offenses, and duly sentenced him. Dugan has timely appealed tire denial of the motion to suppress. II. Standard of Review and Fourth Amendment Precepts In reviewing a district judge’s ruling on a motion to suppress, an appellate court applies a bifurcated standard. The appellate court accepts the factual findings of the district judge if they are supported by competent evidence having some substance. The appellate court exercises plenary review over legal conclusions based upon those findings, including the ultimate ruling on the motion. State v. Woolverton, 284 Kan. 59, 70, 159 P.3d 985 (2007); see State v. Thompson, 284 Kan. 763, 772, 166 P.3d 1015 (2007). The prosecution bears the burden of proving a search or seizure to be constitutional by a preponderance of the evidence. State v. Pollman, 286 Kan. 881, 886,190 P.3d 234 (2008) (allocation of burden; quantum of evidence); Thompson, 284 Kan. at 772 (allocation of burden). By its express language, the Fourth Amendment guarantees “[t]he right of the people to be secure in their persons [and] houses . . . against unreasonable searches and seizures.” To further that right, the Fourth Amendment also requires warrants based on probable cause be presented under oath to a judicial officer and any warrant describe with particularity the places to be searched and the person or objects to be seized. The warrant requirement, thus, interposes an independent reviewing authority — a judge — to assess the sufficiency of the grounds government agents advance for interfering with citizens or their property. To do otherwise would afford those agents largely unchecked authority to carry out searches and seizures on their own assessment of the need for and propriety of those actions. See Welsh v. Wisconsin, 466 U.S. 740, 748-49 & n.10, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984). The framers saw the seeds of abuse in unchecked governmental authority and witnessed firsthand tire British Crown’s deployment of general warrants and writs of assistance to enter homes and businesses and to seize persons and property without particularized cause, largely at the whim of the King’s agents. The Fourth Amendment not only sought to shield the citizens of the newly founded United States from similarly oppressive government action but to secure the homes of those citizens against any unreasonable intrusion by the agents of that government. See Payton v. New York, 445 U.S. 573, 583-85 & n.21, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980) (“It is thus perfectly clear that the evil the [Fourth] Amendment was designed to prevent was broader than the abuse of a general warrant. Unreasonable searches or seizures conducted without any warrant at all are condemned by the plain language ... of the Amendment.”); Stanford v. Texas, 379 U.S. 476, 482, 85 S. Ct. 506, 13 L. Ed. 2d 431 (1965) (noting antipathy toward both the use of writs of assistance in the Colonies and the use of general warrants to suppress dissenting political voices in England as animating inclusion of the Fourth Amendment in the Bill of Rights); Boyd v. United States, 116 U.S. 616, 624-27, 6 S. Ct. 524, 29 L. Ed. 746 (1886) (detailed discussion of British abuses prompting inclusion of Fourth Amendment in the Bill of Rights). The Kansas Constitution Bill of Rights contains essentially the same language in § 15. The Kansas Supreme Court has consistently interpreted the Kansas constitutional protections to be coterminous with the Fourth Amendment. State v. Daniel, 291 Kan. 490, 498, 242 P.3d 1186 (2010). The rights secured in the Fourth Amendment are at their zenith when government agents attempt to enter a person’s home. Welsh, 466 U.S. at 748 (“It is axiomatic that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’ ”) (quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 32 L. Ed. 2d 752 [1972]); Payton, 445 U.S. at 585-86; Mascorro v. Billings, 656 F.3d 1198, 1204-05 (10th Cir. 2011). As the United States Supreme Court underscored in Payton-. “It is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” 445 U.S. at 586. Except in carefully circumscribed situations, law enforcement officers, then, violate the Fourth Amendment if they enter a dwelling without either a search warrant for the premises or an arrest warrant for a resident they reasonably believe will be found there. Welsh, 466 U.S. at 748-49; Payton, 445 U.S. at 490 (“In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.”); Mascorro, 656 F.3d at 1204-05. Those limited instances permitting warrantless entiy require government agents to have probable cause coupled with particularized, exigent circumstances to breach the constitutional sanctity of a private residence. Groh v. Ramirez, 540 U.S. 551, 559, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004) (“ ‘[A]bsent exigent circumstances, a warrantless entry to search for weapons or contraband is unconstitutional even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within / ”); Kirk v. Louisiana, 536 U.S. 635, 638, 122 S. Ct. 2458, 153 L. Ed. 2d 599 (2002) (“As Payton makes plain, police officers need either a warrant or probable cause plus exigent circumstances in order to malee a lawful entry into a home.” [quoting Payton, 445 U.S. at 587-88]); State v. Mell, 39 Kan. App. 2d 471, 481, 182 P.3d 1 (2008). In reviewing the propriety of a warrantless entry, the court must consider the means of entry, the criminal conduct at issue, and the claimed exigency to determine if the search or seizure avoids the constitutional prohibition of unreasonableness cast in the Fourth Amendment. Illinois v. McArthur, 531 U.S. 326, 331-34, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001); State v. Platten, 225 Kan. 764, 770, 594 P.2d 201 (1979) (nonexclusive list of factors). In other words, do those exigent circumstances create a constitutionally reasonable search or seizure notwithstanding the absence of a judicially authorized warrant? As with much else in the Fourth Amendment realm, the sufficiency of exigent circumstances to excuse the warrant requirement depends upon the totality of the relevant facts in a given case. Kentucky v. King, 563 U.S. 452, 462, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011) (“[W]arrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement.”); United States v. Klump, 536 F.3d 113, 117 (2d Cir. 2008); United States v. Rhiger, 315 F.3d 1283, 1288 (10th Cir. 2003) (no “absolute test for the presence of exigent circumstances” so the determination “depends upon the unique facts of each controversy”); see Brigham City v. Stuart, 547 U.S. 398, 406, 126 S. Ct. 1943, 164 L. Ed. 2d 650 (2006) (court reviews the factual circumstances of law enforcement officers’ warrantless entry into home to determine reasonableness under Fourth Amendment). Although the Lawrence police officers could have obtained an arrest warrant for Dugan; a search warrant for his home, his vehicle, and his person; or both types of warrant, they did not. To the contraiy, Officer Scott immediately and forcibly intruded into Dugan’s home. Officer Scott neither sought nor received consent to enter but, rather, took áffirmative steps to prevent the garage door from closing to effect her intrusion. But probable cause either to search or to arrest does not, standing alone, permit law enforcement officers to enter a residence. Payton, 445 U.S. at 576 (The Fourth Amendment “prohibits tire police from making a warrant-less and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.”); Jones v. United States, 357 U.S. 493, 497, 78 S. Ct. 1253, 2 L. Ed. 2d 1514 (1958) (“It is settled doctrine that probable cause for belief that certain articles subject to seizure are in a dwelling cannot of itself justify a search without a warrant.”). Those circumstances amounting to probable cause, if presented under oath to a neutral judicial officer, will support the issuance of a warrant. The Lawrence police could have gotten a search warrant. Probable cause for a search warrant requires that government agents possess specific facts leading a reasonable person to conclude evidence of a crime may be found in a particular place. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (search warrant may issue when the supporting affidavit establishes “a fair probability that contraband or evidence of a crime will be found in a particular place”); State v. Bottom, 40 Kan. App. 2d 155, 161, 190 P.3d 283 (2008), rev. denied 287 Kan. 766 (2009). The police department received a description and the tag number of a motor vehicle involved in a hit-and-run accident from known, reliable witnesses; the police matched the tag to Dugan and his residential address; and an officer saw an SUV matching that description and with the same tag number in the garage attached to Dugan’s house shortly after the collision. That would furnish enough information to obtain a warrant to search the house, the SUV, and Dugan for evidence related to the offense. The Lawrence police, however, did not proceed in that fashion. Those circumstances also would have supported issuance of an arrest warrant assuming a witness to the collision or Officer Scott provided a physical description matching Dugan or identified him from a photo array. K.S.A. 22-2302(1); State v. Thomas, 273 Kan 750, 752, 46 P.3d 543 (2002) (arrest warrant properly based on affidavit containing information establishing probable cause to believe a crime has been committed and the defendant committed it). With an arrest warrant in hand, police officers could have entered Dugan’s residence to take him into custody because they had ample reason to conclude he was there. Payton, 445 U.S. at 603 (“[A]n arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.”). Dugan could have been searched upon his arrest, and tire arresting officers would have had a circumscribed right to search within the house. Thornton v. United States, 541 U.S. 615, 620, 124 S. Ct. 2127,158 L. Ed. 2d 905 (2004) (law enforcement officers arresting a person in his or her home may search that person and “the area immediately surrounding him [or her]”); Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093,108 L. Ed. 2d 276 (1990) (Law enforcement officers may make a “protective sweep” of a dwelling — a quick, limited look — after arresting a resident if they have a reasonable belief other persons who might pose a threat could be present.); Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969) (After arresting individual in his or her own home based on a valid arrest warrant, law enforcement officers may search the individual for weapons and evidence and the area within the individual’s reach for like objects.). The Lawrence police did not proceed in that fashion either. But the courts have also held that probable cause may be coupled with an exigent circumstance requiring immediate law enforcement intervention, thus rendering the delay to obtain a judicially authorized warrant demonstrably deleterious to police functions in apprehending suspects otherwise likely to evade capture and in preserving evidence otherwise likely to be lost. In effect, the exigent circumstance with its inseparable need for prompt action supplants the warrant requirement of the Fourth Amendment. And, in turn, tire search or seizure will be considered constitutionally reasonable. The Lawrence police elected to proceed in that way and, therefore, must have faced exigent circumstances overriding the constitutional mandate for a warrant and the con comitant independent judicial evaluation of the need to forcibly enter a private residence. The courts have generally recognized four types of exigent circumstances that may obviate the warrant requirement: (1) preventing harm to law enforcement officers or others by capturing a dangerous suspect, see Warden v. Hayden, 387 U.S. 294, 298-99, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967); (2) securing evidence in the face of its imminent loss, see King, 131 S. Ct. at 1853-54; (3) hot pursuit of a fleeing suspect, see United States v. Santana, 427 U.S. 38, 42-43, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976) ; and (4) thwarting escape of a suspect, see Welsh, 466 U.S. at 754. Minnesota v. Olson, 495 U.S. 91, 100, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990) (noting those exigent circumstances); United States v. Struckman, 603 F.3d 731, 743 (9th Cir. 2010) (cataloging exigent circumstances). Those categories of exigency are not exclusive, and the facts of a given case might support some different imperative rendering a search or seizure constitutionally reasonable under the Fourth Amendment without a warrant. Struckman, 603 F.3d 743 (“no immutable list of exigent circumstances!’); United States v. Plavcak, 411 F.3d 655, 663 (6th Cir. 2005). Likewise, the factual scenario in a given case might implicate multiple exigencies, suggesting a greater likelihood of reasonableness. See Santana, 427 U.S. at 43 (While hot pursuit “was sufficient to justify the warrantless entry into Santana’s house,” the narcotics officers also had “a realistic expectation” that Santana would try to dispose of illegal drugs on the premises.). The courts have recognized an allied exception when a warrant-less entry reasonably appears necessary to assist persons who are seriously injured or face imminent injury. Brigham City, 547 U.S. at 403 (recognizing emergency assistance doctrine as warrant exception); State v. Geraghty, 38 Kan. App. 2d 114, 123-24, 163 P.3d 350 (2007). The emergency assistance exception to the warrant requirement stands on a somewhat different legal footing than tire “exigent circumstances.” The exigent circumstances all entail conventional law enforcement functions related to taking individuals into custody or securing evidence. As stated, they require the officers have probable cause. The emergency assistance exception neither implicates that kind of law enforcement action nor requires probable cause. Brigham City, 547 U.S. at 403; Geraghty, 38 Kan. App. 2d at 122. The emergency assistance exception applies when a government agent enters a dwelling or other private place for the purpose of rendering emergency aid to a person in serious peril. The agent must have a reasonable factual basis to believe an emergency threatening life or property is imminent or ongoing and to believe the place entered is associated with that threat. The agent may not use the emergency as a subterfuge to effect a search for evidence or a seizure of a criminal suspect. 38 Kan. App. 2d at 123-24. This case does not implicate the emergency assistance doctrine. III. State’s Claimed Exigencies Insufficient In this case, the State argues hot pursuit and preservation of evidence justified entering Dugan’s home without first getting a warrant. We consider each of those bases in turn and find insufficient grounds to support a constitutional entiy, a seizure of Dugan, or a search of him or the premises without a warrant. The United States Supreme Court has noted “the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrant-less home entries.” Welch, 466 U.S. at 750. A. No Hot Pursuit The facts here fail to establish an actual hot pursuit of the sort recognized as a potential exigent circumstance negating the Fourth Amendment’s warrant requirement. As a predicate to invoking hot pursuit as an exigent circumstance, law enforcement officers must have both probable cause to arrest the person and probable cause to believe the person may be found in his or her home or some comparable place otherwise requiring a search warrant, such as a hotel room. See United States v. Hendrix, 664 F.3d 1334, 1338 (10th Cir. 2011) (motel room protected under Fourth Amendment as a house would be). In this case, as we have said, Officer Scott had probable cause to arrest Dugan for the traffic violation and obviously had more than ample reason to conclude he was in his home. Given those circumstances, hot pursuit comes into play as a warrant exception when the law enforcement officers chase a person who then attempts to evade their efforts to arrest or otherwise take him or her into custody. United States v. Santana, 427 U.S. at 42-43 (hot pursuit “means some sort of a chase”); Struckman, 603 F.3d at 744 (no chase and no hot pursuit when officers first confronted suspect in backyard of his home and he did not attempt to flee); United States v. Schmidt, 403 F.3d 1009, 1015 (8th Cir. 2005) (hot pursuit when officer “gave chase immediately and the chase continued uninterrupted”). In Santana, the United States Supreme Court recognized that a person “could not thwart an otherwise proper arrest” by “retreating into her house.” 427 U.S. at 42. Law enforcement officers, therefore, may enter a suspect’s residence without a warrant to keep the suspect from “defeat[ing] an arrest which has been set in motion in a public place.” 427 U.S. at 43. The chase need not be lengthy. In Santana, the suspect stood just outside tire front door of her residence when narcotics officers drove up to within 15 feet of her, got out of their van, and identified themselves as police. The officers had probable cause to arrest the woman as a drug trafficker based on a controlled buy they had concluded minutes earlier. The suspect bolted into the house. The United States Supreme Court held that the encounter began in a public place for Fourth Amendment purposes — outside tire confines of the dwelling and, thus, in an area providing a limited expectation of privacy — and continued as the suspect moved inside to evade tire advancing law enforcement officers. 427 U.S. at 40, 42-43. For Fourth Amendment purposes, then, “hot pursuit” entails law enforcement officers chasing a suspect immediately following the apparent commission of a crime in a manner that the suspect actually had or reasonably should have identified them as government agents attempting to stop him or her. Assuming the officers otherwise had probable cause linking the suspect to the crime, they could make an arrest on that basis in a public place consistent with the Fourth Amendment. The suspect would thwart that constitutional exercise of government authority by fleeing and would do so deliberately. That scenario would, then, present at least a colorable claim for exigency justifying the resulting warrantless search or seizure of the suspect in his or her home. Here, however, the facts fail to show that Officer Scott was in hot pursuit of Dugan. She was not chasing Dugan in an effort to immediately stop and apprehend him. Rather, Officer Scott began following the black SUV to ascertain that she, in fact, had found the vehicle involved in the hit-and-run. To that point, Officer Scott had not seen any damage to the SUV consistent with a collision and had not gotten close enough to compare the tag to the information relayed from the dispatcher. Officer Scott, therefore, had chosen not to engage the emergency equipment on her patrol car in an attempt to stop the SUV. Nor had she otherwise indicated to Dugan in some fashion that he needed to pull over. In short, Officer Scott was not so much chasing Dugan as following him. Her actions were more aptly described as a rolling surveillance than a hot pursuit. At the suppression hearing, Scott testified that she believed the SUV sped up at some point. But Scott agreed that she did not know how fast the SUV was going and never cited Dugan for exceeding the speed limit. Nothing reasonably would have suggested to Dugan that a law enforcement officer was trying to stop him. Nobody was. Scott first activated the emergency equipment on her patrol car when Dugan pulled the SUV into the garage of his house. Until then, she had not confirmed the tag number and had not concluded she had the SUV involved in the hit-and-run. Officer Scott did not give Dugan an oral command to stop or tell him he was under arrest. The record evidence indicates the garage door had begun to come down. But that is not a determinative fact regarding hot pursuit. The evidence fails to support a chase or some concerted effort on Dugan’s part to evade an arrest begun in a public place. That is determinative and undermines the State’s contention. As soon as Dugan entered the garage he was within a constitutionally protected part of the house. Coffin v. Brandau, 642 F.3d 999, 1011-13 (4th Cir. 2011); United States v. Oaxaca, 233 F.3d 1154, 1157 (9th Cir. 2000) (An attached “garage is as much a part of his castle as the rest of his home” and, thus, protected by the Fourth Amendment) (cases cited); State v. Blair, 31 Kan. App. 2d 202, 206, 62 P.3d 661 (2002); see Taylor v. United States, 286 U.S. 1, 5, 52 S. Ct. 466, 76 L. Ed. 951 (1932) (warrantless search of garage adjacent to home in urban area violated Fourth Amendment). And there could have been no hot pursuit — even an abbreviated one of the type in Santana — as Dugan closed the garage door, whether or not he was then aware of Scott’s presence. His lowering of the garage door was the constitutional equivalent of simply shutting the front door from the inside of the house, an action insufficient to establish hot pursuit. Hot pursuit depends upon movement from a location unprotected by the Fourth Amendment to a protected location in a deliberate effort to evade arrest. People v. Davis, 398 Ill. App. 3d 940, 952, 924 N.E.2d 67 (2010) (no hot pursuit when suspect opened door to apartment and retreated further inside); see United States v. Jones, 565 U.S. _, 132 S. Ct. 945, 951-53, 181 L. Ed. 2d 911 (2012) (Although the Fourth Amendment has been described as protecting a person’s reasonable expectations of privacy rather than particular places, those expectations are shaped by and ultimately augment traditional property law concepts, such as trespass, with respect to protected areas enumerated in the Amendment’s text, including the home.); Minnesota v. Carter, 525 U.S. 83, 88, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998); 525 U.S. at 97-98 & n.3 (Scalia, J., concurring). In sum, the record here does not support the sort of circumstances depicting hot pursuit; the district court, therefore, erred in considering that exception to the warrant requirement. If anything, Officer Scott’s action in sticking her foot beneath the garage door to keep it from closing was itself a Fourth Amendment violation rather than evidence of an exception to the warrant requirement. Courts have regularly found that a law enforcement officer may violate the Fourth Amendment by making concerted efforts to prevent a person from closing the door to his or her residence to end their contact. State v. Hudson, 147 Idaho 335, 337, 209 P.3d 196 (Idaho App. 2009) (“[T]he first officer unlawfully entered Hudson’s motel room when he stopped the door from closing with his foot and then pushed it open so he could continue to observe Hudson,” who he suspected of possessing marijuana.); State v. Johnson, 173 Ohio App. 3d 669, 673, 880 N.E.2d 111 (2007); State v. Larson, 266 Wis. 2d 236, 244-45, 668 N.W.2d 338 (Wis. App. 2003) (A police officer violates the Fourth Amendment when, without a warrant, he or she steps across the threshold of an apartment preventing the resident from closing the front door.). B. Any Hot Pursuit Would Not Have Created Exigency Even if Officer Scott had been in hot pursuit of Dugan, that alone would not have furnished an absolute exception to the warrant requirement, at least when, as here, the pursuit stemmed from a comparatively minor offense without aggravating circumstances implicating broader law enforcement or safety concerns. Welsh, 466 U.S. at 751-53 (citing with favor appellate cases that “have looked to the nature of the underlying offense as an important factor to be considered in the exigent-circumstance calculus” and so holding); Mascorro, 656 F.3d at 1206, 1209 (noting importance of offense in determining exigency of hot pursuit); 656 F.3d at 1209 (neither United States Supreme Court nor the Tenth Circuit has held that hot pursuit of a misdemeanant amounts to an exigent circumstance without some additional justification for dispensing with warrant requirement); Schmidt, 403 F.3d at 1013 (not all police pursuits create exigent circumstances dispensing with warrant requirement of Fourth Amendment, noting seriousness of underlying offense a factor). Hot pursuit simply presents one type of exigent circumstance to be evaluated as any other exigent circumstance might be — by looking at all of the relevant facts. See Thomas, 280 Kan. at 537-38 (The court reviews “important” case-specific facts in determining law enforcement officers were legally justified in relying on hot pursuit of an individual for whom they had a felony arrest warrant when he ignored their command to stop and entered a third-party’s home.); Mascorro, 656 F.3d at 1206-07 (applying Platten-\fke factors to evaluate exigency of hot pursuit); Plavcak, 411 F.3d at 663 (enumerating common types of exigency, including hot pursuit, and noting they must be assessed based on the totality of the circumstances); Schmidt, 403 F.3d at 1014-15 (court reviews circumstances surrounding hot pursuit, not simply its existence, to find exigent circumstances); United States v. Wihbey, 75 F.3d 761, 766 (1st Cir. 1996) (same). As the Kansas Supreme Court has stated: “This court has . . . recognized that hot pursuit is one example of an exigent circumstance.” Thomas, 280 Kan. at 537. Commonly, commission of a misdemeanor offense itself fails to provide sufficiently exigent circumstances to permit a warrantless intrusion into the suspect’s home. Welsh, 466 U.S. at 750 (“When the government’s interest is only to arrest for a minor offense, . . . the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by neutral and detached magistrate.”); Struckman, 603 F.3d at 745; United States v. Johnson, 256 F.3d 895, 908 n.6 (9th Cir. 2001) (When an officer is in hot pursuit of a suspected felon, the Fourth Amendment “usually yields” to tire exigency; but when the offense is a misdemeanor, “law enforcement must yield to the Fourth Amendment in all but the ‘rarest’ cases.”) (citing Santana, 427 U.S. at 42-42; Welsh, 466 U.S. at 753). In other words, hot pursuit does not hand law enforcement officers an automatic or per se exemption from the constraints of the Fourth Amendment. The State relies, in part, on a sentence lifted from Thomas, 280 Kan. at 536, in which the Kansas Supreme Court cites Minnesota v. Olson, 495 U.S. 91, 100, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990), as supporting the proposition: “The United States Supreme Court has recognized that hot pursuit alone justifies a warrantless intrusion into a home.” The United States Supreme Court actually suggested the Minnesota Supreme Court had “applied essentially the correct standard” in “observ[ing] that ‘a warrantless intrusion may be justified by hot pursuit of a fleeing felon’ ” or other exigent circumstances. 495 U.S. at 100 (quoting Statev. Olson, 436 N.W.2d 92, 97 [Minn. 1989]). The State’s implication drawn from the paraphrase in Thomas to the effect hot pursuit, as an exigency, need not be evaluated based on the totality of the circumstances in a given case deviates from the cited language in Olson and from other Fourth Amendment authority. In Olson, the Minnesota prosecutor principally argued that Olson lacked standing because he was seized in a duplex where he was an overnight guest and alternatively argued exigent circumstances excused tire need for a warrant. The prosecutor did not attempt to further categorize the exigency, but the facts do not depict hot pursuit or a police chase. See Olson, 436 N.W.2d at 93-94, 97. In that case, the United States Supreme Court neither recognized hot pursuit as an unlimited exception to the Fourth Amendment nor otherwise cleaved it from the exigent circumstances doctrine to be applied based on the totality of the facts in a given case. And the United States Supreme Court has not done so since. The State’s implication is also contrary to the Thomas court’s consideration of additional circumstances bearing on the reasonableness of the entry and search in that case. See Thomas, 280 Kan. at 537-38. Turning to the circumstances of this case and assuming Officer Scott actually was in hot pursuit of Dugan, we look at all of the relevant facts to determine if the police officers acted in conformity with the Fourth Amendment. The nonexclusive list of factors set out in State v. Flatten, 225 Kan. 764, 770, 594 P.2d 201 (1979), provides a useful starting point. But, as the Kansas Supreme Court indicated in Thomas, 280 Kan. at 534-36, not all of those factors need be present, and tiróse that are need not point one way. Other circumstances may also bear on the sufficiency of the exigency. The Flatten factors are: “(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause; (4) strong reasons to believe that the suspect is in the premises; (5) a likelihood that the suspect will escape if not swiftly apprehended and (6) the peaceful circumstances of the entry. It is also recognized that the possible loss or destruction of evidence is a factor to be considered.” Platten, 225 Kan. at 770. The factors are not to be applied as a scorecard with checkmarks for the government and the defendant and then tallied to declare a winner. Rather, they depict areas worthy of consideration in making an integrated analysis of the relevant factual circumstances. See United States v. MacDonald, 916 F.2d 766, 769-70 (2d Cir. 1990) (en banc) (describing substantially those same factors “as an illustrative sampling of the kinds of facts to be taken into account”). The analysis is guided by what a reasonable law enforcement officer would have understood from the circumstances at the time of the challenged intrusion. Brigham City, 547 U.S. at 404; United States v. Simmons, 661 F.3d 151, 157 (2d Cir. 2011); United States v. Reeves, 524 F.3d 1161, 1169 (10th Cir. 2008) (To determine if the government has adequately shown exigent circumstances, the courts “ ‘evaluate the circumstances as they would have appeared to prudent, cautious, and trained officers.’ ” [quoting United States v. Anderson, 154 F.3d 1225, 1233 (10th Cir. 1998)]). It is not undertaken from an after-the-fact perspective looking at information that came to light as a product of the search or seizure or otherwise during any later investigation. See Reeves, 524 F.3d at 1170. We first consider the gravity and violent nature of the offense. We do so based on the traffic offense as reported to Officer Scott before she entered Dugan’s residence. Although Dugan was eventually charged with leaving the scene of a noninjuiy accident in violation of K.S.A. 8-1603, punished as an unclassified misdemeanor with a maximum sentence of a month in jail for a first offense, that is irrelevant. Scott understood the offense to be leaving the scene of an injury accident in violation of K.S.A. 8-1602 or the comparable ordinance. Leaving the scene of an injury accident is a Class A misdemeanor punishable by up to 1 year in jail. As provided in K.S.A. 8-1602, leaving the scene of an accident causing great bodily harm or death is a felony. Scott testified the offense was communicated to her as one involving an injury consistent with the misdemeanor violation. She did not indicate in any way she understood or considered the offense as involving great bodily harm or death and, thus, a felony. Class A misdemeanors, by penalty, are the most serious nonfelony offenses in the Kansas traffic and criminal codes. But the gulf between even serious misdemeanors and lesser felonies historically has been a wide one, and that remains true. Misdemeanors typically entail shorter sentences, although that is not invariably the case, to be served in local jails rather than state penitentiaries. Felony convictions usually entail longer terms of probation or post-release supervision. They may also preclude licensure in certain professions or trades. And felony convictions strip offenders of significant public and civil rights, including holding public office, voting, serving on juries, and possessing firearms. See K.S.A. 21-4516; 18 U.S.C. § 922(g)(1) (2006). As a group, misdemeanors lack the gravity of felonies. As a broad generalization, a suspected misdemeanor violation, particularly a traffic offense, would be less likely to justify law enforcement officers making a warrantless intrusion into a suspect’s residence. While leaving the scene of an accident reflects a degree of deliberateness uncharacteristic of most traffic violations, that does not distinguish it from the run of misdemeanors requiring at least general criminal intent. The calculus of exigency, however, could change some if the misdemeanor involved violence or threats of violence, as might battery, criminal restraint, or simple assault. Here, the offense — leaving the scene of an accident — does not suggest or reflect violence. Nothing in the record evidence otherwise imputes any sort of violent behavior to Dugan. He did not, for example, deliberately collide with the other vehicle or threaten harm to the other driver. As the caselaw suggests, hot pursuit of a suspected felon tilts strongly toward an exigency supporting warrantless entiy into the suspect’s residence. Olson, 495 U.S. at 100; Johnson, 256 F.3d at 908 n.6. We do not venture into that arena or the application of the doctrine to myriad felonies ranging from murder and rape to expensive shoplifting. Those cases would present markedly different facts across their range and in comparison to this case in assessing tire constitutionality of purported exigencies obviating the need for a warrant. Before moving on, however, we mention that at the suppression hearing, Officer Scott testified that she recalled some radio traffic indicating that Dugan may have been drinking. But her written report contains no information to that effect. And it was pointed out that she testified otherwise at the preliminary hearing. At the suppression hearing, Officer Scott testified she did not see Dugan drive erratically or unlawfully. In making findings of fact in its written ruling denying the motion to suppress, the district court concluded that based on “the radio calls,” Officer Scott “learned that a large man driving a dark colored Ford Expedition with Kansas tag number [«*****] struck another vehicle from behind injuring the driver of the other car and then left the scene of the accident.” The district court also found the dispatcher communicated Dugan’s name and address as the owner of the SUV. The district court, however, made no finding that Officer Scott received any information to the effect Dugan may have been drinking. Accordingly, consistent with those factual findings, we premise our analysis on the absence of such information. The second flatten factor, inquiring whether the suspect reasonably might be considered armed, links to the first and addresses potential danger in delaying interdiction. A suspect brandishing or carrying a weapon, particularly a firearm, poses an increased threat to law enforcement officers and members of the public — a recognized category of exigent circumstances. In this case, however, Dugan neither was armed nor otherwise appeared to pose any special risk or danger. The factor would not, therefore, escalate the exigency of the hot pursuit or of the overall circumstances. The next factor looks at the strength of the probable cause. As we have indicated, Officer Scott had probable cause to arrest and for a search warrant upon matching the tag on Dugan’s SUV to the one reported from the scene of the accident, especially coupled with the vehicle turning into the driveway at the address associated with Dugan. But just how “a clear showing” of probable cause should be assessed in measuring the exigency of the circumstances for a warrantless entry is not so clear. As the cases establish, law enforcement officers must have probable cause independent of and in addition to any exigent circumstance to effect a warrantless entry of a suspect’s residence. Probable cause is not measured on a sliding scale; either it exists based on a given set of facts or it doesn’t. Assuming the government agents have significantly more than probable cause implicating the suspect in a particular crime, that neither increases nor diminishes the urgency of intervening without obtaining a warrant. Even if the agents correctly thought they had proof beyond a reasonable doubt pointing to the suspect, they could not bypass getting a warrant from a judge for that reason alone. And they could not for that reason alone enter the suspect’s home to arrest him or to search for evidence to convict him. Absent an exigency making time of the essence, law enforcement officers must adhere to the Fourth Amendment and obtain a warrant from a judge no matter how strong dieir evidence. Here, the factor plainly favors the government however measured or applied. The next factor looks at the strength of the circumstances indicating the suspect is actually on the premises to be entered without a warrant. In this case, that evidence was obvious and irrefutable. The fifth factor considers the likelihood the suspect may escape if not immediately taken into custody. The record evidence at the suppression hearing really did not directly pertain to that factor. The considerations are akin to those bearing on hot pursuit in that both deal with the suspect’s attempting to evade law enforcement officers in some fashion. We suppose Dugan’s residence had a front door and a rear door, along with access through the garage. He could have attempted to escape through those points. We also understand that at least one additional officer arrived to help Officer Scott. Those officers, perhaps assisted by one more, could have watched for any escape attempt while another officer or prosecutor got an arrest warrant or a search warrant. It was early afternoon, so Dugan could not have slipped away under the cover of darkness. Had Dugan left his home in an effort to escape or for some other reason, the officers could have attempted to stop and question him, as provided in K.S.A. 22-2402(1). If he ignored them and continued to leave the area, the officers would have had probable cause to arrest him for unlawful interference under K.S.A. 21-3808(a). If he did stop, the officers presumably would have discovered he had been drinking and could have arrested him for DUI, since he then would have been in a public place and no warrant would have been required. See K.S.A. 22-2401(c)(2)(A) (officers may arrest for a misdemeanor based on probable cause and loss of evidence). The officers already had identified Dugan and determined where he lived. So if he had escaped, they knew who they were looking for and had a good idea where he would turn up eventually. Escape does not loom large in this case. Finally, Platten looks at “the peaceful circumstances of the entry.” 225 Kan. at 770. The facts here are mixed. The Lawrence Police Department obviously did not get out the battering ram and intervention team to enter Dugan’s house. And Officer Scott did not go in with her service weapon drawn. But Officer Scott actively and aggressively intervened to prevent the garage door from closing and, thus, forcibly entered Dugan’s home. That cannot be con sidered peaceful in a pure sense, although the entry was not as intimidating as it might have been, and it wasn’t physically destructive. See United States v. Martin, 613 F.3d 1295, 1304 (10th Cir. 2010) (officers neither forced their way into residence nor drew their weapons weighing in favor of reasonableness of warrantless entry especially when they properly believed suspect to be armed and dangerous). Nothing in the record suggests circumstances beyond those accounted for in the Platten factors that would support exigency. Had Officer Scott allowed the garage door to close, she still could have knocked on the front door and sought Dugan’s consent to speak with him and to search either his home or his SUV. Officer Scott testified at the suppression hearing that based on her experience “once the garage door closes people don’t tend to answer the door.” She explained that she tripped the sensor to prevent the garage door from closing because “I was fearful that he was not going to open the door.” If that happened, Officer Scott and her colleagues would have had to wait while the prosecutor or a police department representative secured a warrant from a judge. In short, things would have become measurably less efficient. But governmental efficiency is not the same as exigency. And the Fourth Amendment does not yield to the impatience of law enforcement officers. Consistent with reviewing the totality of the circumstances, we defer our determination until we have also considered the potential loss of evidence. C. Potential Loss of Evidence Did Not Create Exigency In Platten, 225 Kan. at 770, after outlining the factors bearing on exigent circumstances, the Kansas Supreme Court notes that the possible loss of evidence may be taken into account. As the law has developed, loss of evidence has come to be treated as a type of exigent circumstance rather than simply a factor to be considered. The State relies on the loss of evidence as an exigency independently justifying the warrantless entry of Dugan’s residence. Whether loss of evidence is labeled a factor or an exigent circumstance amounts to semantics, since the ultimate determination of the constitutional propriety of a warrantless entry depends upon a seamless analysis of all of die material facts. We, therefore, turn to the potential loss of evidence. To qualify as an exigency, the potential loss of evidence — be it through destruction, concealment, or removal — must present an imminent threat rather than a mere possibility. Mell, 39 Kan. App. 2d at 482. The courts consider various circumstances in determining exigency, including: (1) the time needed to secure a search warrant; (2) the reasonableness of the officers’ belief the evidence may be immediately lost; (3) potential danger to the officers guarding the site while awaiting a warrant; (4) whether those persons with possession of the evidence are aware of the officers’ presence; and (5) the ease with which the evidence might be destroyed or hidden. United States v. Moses, 540 F.3d 263, 270 (4th Cir. 2008); United States v. Vega, 221 F.3d 789, 800 (5th Cir. 2000) (same). The facts developed at the suppression hearing do not advance the State’s position that loss of evidence either alone or in conjunction with the pursuit amount to a constitutionally sufficient exigency. The prosecution presented no evidence about the time likely needed to obtain a warrant or any special obstacles in doing so in this case. Officer Scott did not testify that she believed evidence would be lost if she and her colleagues waited to get a warrant. As we have discussed earlier, Dugan presented no particular danger to the officers or the public. Dugan, however, was aware of Officer Scott’s presence. Evidence related to the leaving-the-scene charge presumably would have entailed damage to the SUV consistent with the collision and transfer of paint or other trace materials from the other vehicle. Repairing collision damage likely would have been time consuming work. Depending on the degree of damage, Dugan might have required replacement parts or specialized equipment used in body shops. Dugan presumably would have a somewhat easier time removing any transferred paint. The suppression hearing record is silent on those considerations. But the loss of evidence plainly would not have been so easily accomplished as the drug trafficker flushing contraband down the toilet. If officers waiting for a search warrant had heard sounds coming from the garage consistent with Dugan attempting to fix his SUV, they might well have had sufficient exigent circumstances at that point to immediately enter the premises. See Hendrix, 664 F.3d at 1339 (“officers were justified in believing the commotion in the motel room indicated its occupants were attempting to destroy evidence,” thereby creating an exigent circumstance for a warrantless entry); United States v. Fiasche, 520 F.3d 694, 698 (7th Cir. 2008). We find insufficient support for the immediate destruction of evidence as an exigent circumstance or as factor to be considered in otherwise determining exigency. In its written ruling denying the motion to suppress, the district court suggested that if Dugan were under the influence of alcohol, evidence in the form of a reliable breath test or other indicators of intoxication could be lost or compromised while the officers waited for a judge to sign a warrant. That would be true. But, as we have pointed out, exigent circumstances must be based on what a reasonable law enforcement officer would conclude from the information available at the time of the entry. The district court effectively found no information had been provided to Officer Scott indicating Dugan had been drinking, and Officer Scott made no firsthand observations supporting that conclusion. Accordingly, Officer Scott’s warrantless entry could not have been based on any reasonable belief that evidence of intoxication would otherwise be lost. The district court could not properly rely on that sort of hypothecated circumstance to deny the motion to suppress. Again, we venture no speculation on whether preservation of evidence of alcohol consumption in a routine DUI case would create a constitutionally sufficient exigency to permit law enforcement officers to enter the suspect’s residence without a warrant. See State v. Legg, 633 N.W.2d 763, 772 (Iowa 2001) (loss or compromise of blood alcohol evidence in DUI supports finding of exigency); but see Larson, 266 Wis. 2d at 251 (loss of blood alcohol evidence in DUI not exigency). Those circumstances are not the circumstances of this case. IV. Conclusion In reviewing die totality of the circumstances, we find the district court erred in denying the motion to suppress. There were no exigent circumstances permitting a warrantless entry into Dugan’s home. Officer Scott did not engage in a “hot pursuit” of Dugan as that term embodies an exigency dispensing with the warrant requirement of the Fourth Amendment. Even if there were such a pursuit, the facts do not outline the sort of immediacy and urgency that would excuse obtaining a warrant. Although probable cause had been well established, the offense was comparatively minor. Inside his home, Dugan posed no danger to the officers or others. He presented no realistic threat of escape. Officer Scott acted aggressively to achieve entry to the residence as the garage door closed, and she did so not because of a genuine exigency but to avoid resorting to investigative methods that might be ineffective— trying to get Dugan’s consent — or that would be time consuming— securing a warrant from a judge. A citizen’s Fourth Amendment rights do not rise or fall on the schedules of government agents or their predilections for expediency. The framers intended judicially issued warrants as a check on just those inclinations and to preserve for the citizenry a sphere of privacy in their own homes against undue government intrusion. The Fourth Amendment has not yet fallen into such disrepair that it no longer serves that fundamental purpose in a case such as this. The ruling of the district court denying Dugan’s motion to suppress is reversed, and the case is remanded with directions that the motion be granted.
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The opinion of the court was delivered by Johnston, J. : This was an action by I. A. Strauss against S. B. St. John and others to subject real estate in Topeka which St. John had purchased from-Ida Pyatt to the payment of several judgments against D. Pyatt which had been assigned to and were owned by Strauss. It was alleged and claimed by Strauss that the Topeka property belonged to D. Pyatt, and had been obtained in an exchange for property of his in Sumner county, and that in the exchange the title to the Topeka property was taken in the name of Ida Pyatt, who paid no consideration for the same, and only held it in trust for D. Pyatt. The transfer was made on August 31, 1892, and it is alleged that on October 15, 1892, John Shrives, who was the owner of three judgments against D. Pyatt, began a suit in the circuit court of Shawnee county- to have the three judgments which he owned declared liens upon the property in question. In that suit D. Pyatt, Ida Pyatt and her husband, S. B. Pyatt, were made parties, and Shrives set up that D. Pyatt was.insolvent, that he was the .actual and equitable ■ owner of the Topeka px'operty, and that Ida Pyatt held it in trixst for him and had paid no consideration therefor. The case x-esulted in favor of Shrives, and on April 23, 1894, it was decreed therein that Shrives’s judgments against D. Pyatt were liens upon the real estate, subject only to a $12,000 mortgage lien which had been given by a prior owner, and that ixpon the filing of a prsecipe an order of sale might be 'issued directixxg the sheriff to sell the x*eal estate in satisfactioxx of the judgments of Shrives. It was alleged and shown that after the Shxfives suit was commenced, and oxx December 16, 1892, St. John purchased the property from Ida Pyatt, in whose name the record title stood, but, as we have seen, the good faith of the purchase is questioned; that jxxst befox’e the alleged pux’chase Ida Pyatt gave a mortgage on the property for $2500 ; that after the purchase, axxd on January 9, 1893, St. John paid and satisfied the $2500 mortgage ; that on June 26, 1893, St. John paid and satisfied the $12,000 mortgage; and that on July 25, 1894, he paid the Shrives judgments, which had been declared liens upon the property purchased. St. John was not a party to the action, nor were any of the judgment creditors whose -judgments are involved in the present proceeding. In this case, brought by Straxxss, testimony was offered tending to show that, at the time of the purchase by St. John, D. Pyatt was the eqxxitable owner of the property, and that Ida Pyatt, his daughter, held the mere legal title thereto as trustee for him. Upon the testimony the trial court found, among other things, that D. Pyatt, against whom the Strauss judgment was rendered, was the equitable owner of the property; that it was purchased by St. John during the pendency of the Shrives suit, and that this suit was lis pendens as to the purchase made; that the status of the property became fixed by the judgment in that case as to Ida Pyatt, D. Pyatt, and all the judgment creditors of D. Pyatt; and that the purchaser, St. John, could not in this case litigate the questions involved under the issues in the Shrives case. It is not easy to ascertain what view the trial court took of some'of the testimony.in the case, but from the findings it would seem that its judgment was hinged largely on a misapplication of the doctrine of Us pendens and the supposed effect of the Shrives suit. It is true that St. John was & pendente lite purchaser, and that he took the property subject to the claims made and established against it in the Shrives proceeding. The doctrine of Us pendens, however, cannot be extended so as to bind a purchaser for claims not in litigation, nor is it available to other creditors than those connected with the litigation. The theory of Us pendens is to keep the subject-matter of controversy within the power of the court until the final judgment is rendered, so that the judgment, when rendered, may be effective. A party to the litigation cannot transfer the property in issue so as to prejudice the rights of the plaintiff therein. The title of a pendente lite purchaser is not necessarily void. As between the parties to the transfer the title is valid, but as to the pendente lite purchaser its validity depends entirely on the result or outcome of the pending litigation. While the purchaser must take notice of the facts contained in the record, he is only affected to the extent to which the judgment in the suit goes. The only creditor of which the purchaser was required to take notice was Shrives, and the only claims were those in issue in that suit. The action was not brought in. behalf of any other creditor than Shrives, and the fact that there were other creditors was not disclosed by that record. The proceeding was not brought to set aside a fraudulent deed, but was a simple proceeding to enforce the collection of judgments by having them declared liens upon the property described in the petition. Creditors other than Shrives had no interest in the proceeding and were not bound by the result. If the Shrives suit be available as an adjudication in favor of the outside creditors, it would be equally binding on them if it had been determined in favor of the defendants, and no one would argue that the creditors who were strangers to the Shrives suit would be precluded by the judgment therein from litigating their claims or seeking to subject the property in controversy to the payment of the same. Our statute on Us pendens, so far as it affects the question in hand, is against the judgment of the circuit court. It provides to what extent a purchaser will be affected by the constructive notice imparted by the pendency of a suit, as follows : “ When the petition has been filed the action is pending so as to charge third persons with notice of its pendency, and while pending no interest can be acquired by third persons in the subject-matter thereof as against the plaintiff’s title.” (Gen. Stat. 1897, ch. 95, § 81, Gen. Stat. 1889, ¶ 4164.) The effect of this provision is that a pending suit is notice to the purchaser of whatever rights the plaintiff asserted against the property ; that is, no in terest can be acquired by third persons in the subject-matter of the suit as against the plaintiff’s title. The purchaser was one chargeable with the claim set up by the plaintiff in the suit and one bound by the judgment which was rendered in the action. The constructive notice is not available to unmentioned creditors, nor was the property subjected to the payment of any other liens than those set up by Shrives. In Stout v. Phillippi M. & M. Co., 41 W. Va. 339, 23 S. E. 571, the effect of the notice as to the outside creditors was under consideration, and it was remarked : “As a lis pendens gives notice only of the facts contained in the record of the suit to which it relates, as it is when the party affected purchases and only for the purposes of that suit, and for the benefit of parties to that suit, other creditors cannot have its benefit in other suits.’ The trial court having taken an incorrect view of the effect of that litigation, and one which may have largely determined the result, there must be a reversal of the judgment. We determine nothing as to the actual notice which the purchaser had, nor as to whether he by himself or through his agent cooperated in the wrongful transfer of the property, but dispose of the case solely on the effect of the constructive notice imparted by the pendency and determination of the Shrives suit. The judgment will be reversed and cause remanded for further proceedings.
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The opinion of the court was delivered by Smith, J. : On the 29th day of May, 1899, the judge of the seventeenth judicial district, at chambers in Oberlin, Decatur county, granted a temporary injunction in an action then pending in the district court of ■Rawlins county, wherein Fred. B. Glover was plaintiff and H. J. Barnhouse and others were defendants, restraining the defendants, their agents, servants, and' employees, from entering on certain lands described, situate in Rawlins county, and from driving or grazing stock thereon, and from in any manner, directly or indirectly, molesting, disturbing or driving away the stock of said plaintiff, Fred. B. Glover, or in any manner disturbing him in the peaceable and quiet possession of ihe premises. A copy of the order was personally served. Thereafter, on affidavits of said plaintiff and others being presented to the judge of said district court at chambers, in Oberlin, Decatur county, showing that the commands of the temporary order of injunction had been violated, a writ of attachment was issued by the judge commanding the sheriff of Rawlins county to arrest said H..J. Barnhouse and the other petitioners herein, and bring them each forthwith before him at his office in Oberlin, Decatur county, at chambers, there to answer unto said judge for the contempt alleged against them in the violation and disobedience of the restraining order, or temporary injunction, issued at the time and place mentioned. The petitioners were arrested and brought before the judge at Oberlin, whereupon they each demanded a trial by jury, which request was by the judge allowed. Four of the petitioners were required to enter into a bond in the sum of $500 each as security to obey the temporary injunction until the final hearing, conditioned that they would make restitution of the premises described in said injunction order to the plaintiff Fred. B. Glover, and remove from the premises all stock placed there by said persons in violation of said order, and desist and refrain from directly entering upon the premises, from keeping, and maintaining a force of men thereon, from driving, keeping or.grazing upon said premises any cattle, or from in any manner interfering with or driving the cattle of said Fred. B. Glover, and in any manner molesting or disturbing him, his agents, servants, or employees, in the quiet possession of the land. It was further ordered that each of said four persons enter into a further recognizance in the sum of $100 to -be, and appear at the first day of the next regular term of the district court of Rawlins county, to answer the accusation of violating the injunction order. Twelve of the other petitioners were required to enter into a bond in the sum of $150 each to obey the temporary injunction, and a further bond in the sum of $50 each for their appearance at the first day of the regular term of the district court of Rawlins county* In default of compliance with the order last named the' petitioners were ordered by the judge to be confined in close custody in the jail of Rawlins county. Section 16, article 3, of the constitution, reads : “The several justices and judges of the courts of record in this state shall have such jurisdiction at chambers as may be provided by law.” Judges at chambers are wholly without jurisdiction or authority to act unless power so to do is conferred by the legislature-. It follows that if that body can, by withholding its consent, deny such judge the right to perform judicial acts, it can withdraw that consent after it has once been given. In either case that officer is effectively deprived of power. The judicial power of the state is vested in the supreme court, district courts, probate courts, justices of the peace, and such other courts inferior to the supreme court as may be provided by law. (Const., art. 3, § 1.) The general doctrine is that all judicial business must be transacted in court, and such business as may be transacted out of court is exceptional and must find express authority in the statute. (4 Encycl. Pl. & Pr. 337; Tol. A. A. & G. T. Ry. Co. v. Dunlap. 47 Mich. 456.) Until the enactment of chapter 106, Laws of 1897 (Gen. Stat. 1897, ch. 85, §§ 10-15), disobedience of an order of injunction might have been punished as a contempt by any court or judge who might have granted the order. (Gen. Stat. 1897, ch. 95, § 259; Gen. Stat. 1889, ¶ 4342; The State v. Cutler, 13 Kan. 131.) The act of 1897, however, has taken away from the judge all power either to try or to commit persons for contempt, and has vested such authority solely in the courts. Indeed, by section 3, contempts of the judge at chambers must be tried and punished by the court. The first four sections of the act read : “Section 1. That contempts of court are divided into two classes, direct and indirect, and shall be proceeded against only as hereinafter prescribed. “ Sec. 2. That contempts committed during the sitting of the court or of a judge at chambers, in its or his presence are direct contempts. All other are indirect contempts. “ Sec. 3. That a direct contempt may be punished summarily without written accusation against the person arraigned, but if the court shall adjudge him guilty thereof a judgment shall be entered of record in which shall be specified the conduct constituting such contempt, with a statement of whatever defense or' extenuation the accused offered thereto and the sentence of the court thereon. “ Sec. 4. That upon the return of an officer on process or an affidavit duly filed, showing any person guilty of indirect contempt, a writ of attachment or other lawful process may issue and such ¡person be arrested and brought before the court; and thereupon a written accusation setting forth succinctly and clearly the facts alleged to constitute such contempt shall be filed and the accused required to answer the same, by an order which shall fix the time therefor, and also the time and place for hearing the matter ; and the court shall on proper showing extend the time so as to give the accused a reasonable opportunity to purge himself of such contempt. After the answer of the accused, or if he refuse or fail to answer, the court may proceed at the time so fixed to hear and determine such accusation upon such testimony as shall be produced. If the accused answer, the trial shall proceed upon testimony produced as in criminal cases, and the accused shall be entitled to be confronted with the witnesses against him ; but such trial shall be by the court, or upon application of the accused, a trial by the jury shall be had as in any criminal case. If the accused be found guilty judgment shall be entered accordingly, prescribing the punishment.” It will be observed that by the terms of section 4„ under which the petitioners in the case at bar were proceeded against, persons arrested under a writ of, attachment or other process for alleged contempt must be brought before the court. . Herein lies the illegal-: ity of the detention of the petitioners. They were not brought before such tribunal, but before a judge of the court in vacation, in a county other than that in which the suit was pending in which the temporary order of injunction was granted. Under the terms of the act in question contempts can be proceeded against only as therein prescribed, and by section 6 it is made to apply to all proceeedings for contempt in all the courts of Kansas, and all acts in conflict with it are repealed. Section 4 relates solely to proceedings in cases of indirect contempt, and clearly specifies that they shall be dealt with in a formal manner by the' court and not by the judge at chambers. The section does not contain the word "judge.” Any action at chambers is necessarily beyond the purview of this section, since a jury trial is allowed the accused .on his application. Much has been said by counsel for the respondent regarding the inherent authority of courts, especially constitutional tribunals, to punish for contempt, it being contended that they are safely armed with the. same secure from any diminution of its force by the law-making power. In this case, however, -we are concerned with no other question than that of the power of a judge at chambers, by the issuance of a writ of attachment or other process, to cause persons charged with contempt to be brought before him and then imprisoned upon failure to comply with an order there made. Inherent authority of courts is not involved, because no court acted or attempted to act. The relevant question is not whether courts have been deprived of inherent power, but whether judges at chambers have been divested of statutory power. The petitioners are not deprived of liberty by any order of a court, but by the command of a judge who had been'dispossessed of jurisdiction by an act of the legislature withdrawing from him a power which he theretofore possessed. We do not decide whether, when a direct contempt of a judge has been committed in his presence, he may not issue an attachment for the arrest of the offender, ordering him to be brought before the court to answer therefor. The order of the judge required the petitioners to enter into a bond conditioned that they would make restitution of the premises, obey the temporary injunction, remove all stock from the premises placed there in violation of the order, and desist from entering upon the premises, etc. We can find no authority in the statute for such bond. Section 259, chapter 95, General-Statutes of 1897 (Gen. Stat. 1889, ¶ 4342), provides for the giving of security to obey the injunction after a party has been adjudged guilty of contempt and punished therefor, but such bond cannot be required before that stage of the proceedings. The judge at chambers being without jurisdiction, the petitioners will be discharged.
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The opinion of the court was delivered by Johnston, J. : This was an action by Timothy Sullivan to recover real estate from the children of John Larkin, deceased, and which plaintiff claims descended to him through his deceased wife, a daughter and heir of John Larkin. He also asks a partition of certain real estate in which he claims an undivided interest. John Larkin, who owned considerable real estate in Kansas and Missouri, died, leaving as his only heirs seven children, one of whom was Catherine Larkin, who married Timothy Sullivan about a year after the death of her father. Several years before his death John Larkin made a will which provided for the sale of his personal property and the payment of his debts, and in disposing of his real estate he gave one son a quarter-section of land outright, and to each of the remaining six children he gave a life-estate in a particular tract of land, and in addition gave one of them a legacy of $2000. The will then provided : “I will and devise that all other property which I may own at the time of my death, both in Kansas and Missouri, shall be sold upon the most favorable terms by my said executors and the proceeds be divided among my children equally.” There were several tracts of land not specifically devised, but it appears that these, and possibly a portion of the other lands, will be required to pay the debts of the estate. Each of the children took possession of the lands so specifically devised, and it appears that in about two months after her marriage the daughter Catherine died, leaving her husband. Timothy Sullivan as her sole heir. He contends that the will is incomplete and invalid, because a life-estate only, and not a fee, of some of the lands'was devised ; that the heirs take under the law and not under the will; and, further, that each heir having taken possession of a specific tract of land, it should be treated as an allotment or a voluntary parol partition of the estate, and that the share to which he is entitled as the heir of Catherine is controlled by law and not by the terms of the will. The court held the will to be valid, and that those to whom lands were devised during their natural lives took a life-estate in such lands, and that the property remaining and not specifically disposed of went to the heirs general of John Larkin, deceased. It was held that the life-estate of Catherine in the land occupied by her terminated at her death, and that the plaintiff, as her sole surviving heir, was entitled to a one-seventh interest therein. Accordingly it was decreed that partition of that tract of land be made among the surviving heirs, if practicable, and, if not, that a sale and distribution of the proceeds be made. The judgment must be sustained. It appears that the statutory formalities were observed in making the will, and there is no suggestion of fraud, undue influence, or lack of testamentary capacity. While a fee was given to one of the children and only a life-estate to the others, there may have been sufficient reasons for such discrimination; but whatever the reason may have been, Larkin had absolute dominion.over his property, and it was competent for him to-dispose of it as he saw fit. Caprice and seeming injustice in the disposition of property will not defeat, the will of the testator, but where, as in this case, the residue of the property was devised to each of the heirs, there is little room for a claim of partiality or injustice. The will in question was duly probated, and no direct attack has ever been made upon its validity. Unless void upon its face, it must, therefore, control the disposition of the testator’s property. The objection that it is invalid because it does not make a complete disposition of all the interest and estate of the testator cannot be sustained. Even if it were a fact that some of the testator’s property was not disposed of, it would not defeat the will', and the property overlooked would ordinarily pass to the heirs. The fee of the land in which a life-estate was given by the will cannot be regarded as having been overlooked and that no disposition had been made of it. Although the fee of such land was not specifically devised, it was fairly included in and legally passed under the general residuary clause of the will. As will be observed, this clause of the will is general and inclusive, and the tendency of the courts is to give the widest and most liberal construction to a residuary devise. (1 Jarm. Wills, 6th ed., 635.) The same authority shows that such a residuary clause operates in cases where only .a partial or contingent interest in' lands is specifically devised, leaving an.alternate or ulterior intex-est or estate undisposed of. In the absence of anything showing a contrary intention on the part of the testator, a residuary clause like the one in the Larkin will carries the fee of lands in which a life ■estate was specifically devised. (1 Jarm. Wills, 6th ed., 637.) Evidently it was the purpose of the testator to dispose of his entire estate, and that all of the property not specifically devised should; when the life-■estates were terminated, be equally divided among his ■children. Until the life-estate is terminated by the death of one to whom the land is specifically devised the other children are not entitled to the possession or enjoyment of such land. After that time it may be disposed of in accordance with the provisions of the residuary clause. (Ferguson v. Thomasson, 9 S. W. [Ky. Ct. of App.] 714.) We think the will is valid and its provisions effectual in disposing of the entire estate of the testator, and that the plaintiff has no cause to complain of the judgment of the district court. It will therefore be affirmed.
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The opinion of the court was delivered by Doster, C. J. ; This was an action brought by the plaintiff in error to recover money as a trust fund belonging to it which had been deposited in a bank by another in his name. October 25, 1895, one C. B. Evans executed to one W. E. Hutchinson a promissory note for $4500, and secured it by a mortgage on 250 head of cattle. Hutchinson immediately transferred this note and mortgage to one M. B. Abell, of Kansas City, Mo., who in turn immediately transferred them to plaintiff in error. Immediately after, or possibly before this last transfer, Hutchinson, as the agent of Abell, shipped the cattle to Kansas City and sold them for $5540. This sum was sent through the medium of a bank in Kansas City to one of the defendants in error, the Valley State Bank, and placed to the credit of Hutchinson in a general-deposit account kept by him. Hutchinson at that time was president of this bank. November 1, 1895, Hutchinson informed one Wilfley, the cashier of the Valley State Bank, that the deposit to his credit of the $5540 was the proceeds of the sale of the cattle mortgaged by Evans to him to secure the note of $4500, and which he had transferred to Abell, and that he desired his account debited with $4500 and the amount remitted to Abell in payment of the note. Wilfley replied that he would do as desired, and Hutchinson supposed that he had done so ; however, he did not do so, which fact Hutchinson discovered about January 3, 1896. Intermediate the giving of the direction to the cashier and the discovery that it had not been complied with, Hutchinson made additional deposits of his own funds to the credit of his general account, and drew checks upon it. Often the credit side of his account, including the before-mentioned deposit of $5540, was less than the $4500 he had directed to be remitted, running at one time as low as about $500, so that Hutchinson must have known that the remittance was not made to Abell, or else must have known that he was largely overdrawing his account. When Hutchinson discovered that the Abell note had not'been paid, he had to his credit at the bank $3800. He borrowed $700 more from the bank, giving his note therefor, and directed that the $3800 to his credit and the amount borrowed be remitted to Abell in payment of the $4500 note, of which he still supposed Abell to be the owner. The assistant cashier, one Welch, objected to the use of these funds for the payment of the Abell note, because Hutchinson was and for several months had been indebted to the bank in the amount of another note for $4500, also given to him by the before-mentioned Evans, which note Hutchinson had sold and indorsed, and which upon its maturity the bank had paid for him as indorser, and which it still held against him as an obligation due to it. According to the desire of Welch the money was not remitted in payment of the Abell note, but was used to discharge Hutchinson’s indebtedness due to the bank on the other note ; that is, Hutchinson’s deposit account of $3800, increased by the $700 loan, was debited with the amount of his note. It is not clear whether Hutchinson finally assented to this arrangement. As to all other facts above stated there is no substantial dispute. The Valley State Bank went out of business and turned its assets over to the Bank of Hutchinson, which bank became insolvent and is in the hands of John M. Kinkel as receiver. Without going into a detailed explanation, it is sufficient to say that, under the circumstances shown in evidence, if the Valley State Bank was liable to the plaintiff in error, the First National Bank of Sharon, Pennsylvania, the Bank of Hutchinson, and Kinkel, as its receiver, are likewise liable. The district court held in favor of the defendants, and the plaintiff prosecutes error to this court. Counsel for plaintiff in error vehemently assert that the deposit of $5540, the proceeds of the sale of the mortgaged cattle, was charged with a trust to the extent of the note of $4500, which had been transferred to Abell and to the plaintiff in error, and that the Valley State Bank was charged with notice of such trust when informed by Hutchinson of the source from which the deposit of cattle money was derived, and was directed to remit the necessary amount in pay ment of the note. It is without doubt true that an agent cannot make the -funds in his hands belonging to his principal his own funds by depositing them to his own credit in a bank. Pie cannot, as to the bank, make them his own funds if the bank has notice of the real ownership, provided the bank still has them, or their representative, on hand, so that they can be followed and reclaimed by the real owner. The difficulty, however, in such a case as this, is to determine the extent of the agent’s authority over the fund, after he has deposited it to his credit, when no notice of ownership other than what the agent himself imparts is given to the. bank. Does the agent depositing his principal’s fund in his own name part, as against the bank, with all dominion or authority over so much of his general account as is represented by the deposit in question, by merely stating to the bank that it belongs to another, and directing it to be paid to him? Can the agent by so doing impose a trust Upon the bank, and require the bank to set apart, as it were, so much of the general fund as it is informed belongs to another, so that not even the agent and depositor, any more than a stranger, can exercise control over it? ¥e think not. Upon this precise question to which the contention of the parties becomes reduced we have not been favored by counsel on either side with any authorities, or with any close reasoning, and with the amount of other labor necessarily devolving upon us we are unable ourselves to brief cases, as it were, or make much original research among the books. To the extent that we have been able to investigate, we have found no cases involving the precise question. The fact that Plutchinson was in possession of the fund derived from the sale of the mortgaged cattle was sufficient evidence to the bank that he had the right, as agent, to control the fund — was sufficient evidence that the principal had put him in the possession of such fund. As agent he could make payments to the principal in any recognized business way he chose, and, so far as concerned the bank, could make it at any time and in such instalment payments as he chose. If the bank had learned from any other source than Hutchinson himself that the deposit was the proceeds of the sale of cattle mortgaged to Abell, or to the plaintiff in error, could it have raised a question with Hutchinson as to his control of the fund thus derived and thus deposited by him? Could it have refused to honor Hutchinson’s checks-drawn against it or against the general balance inclusive of it, upon the ground that it was not Plutchinson’s money but some other person’s in whose interest it must be kept, and held the deposit? We think not. It would have been bound to assume that-Hutchinson’s rightful possession of the fund justified him in dealing with it as he did, and in checking upon it as he chose. It would be bo.und to assume that an agreement existed between Hutchinson and the owner of the fund which justified the former in keeping it in his own name and checking upon it as he did. It would be bound to assume that Hutchinson was dealing with the fund within the terms of an authorized agency. If this be true, it would make the case nowise different if the information as to the ownership of the fund and the source from which derived came from Hutchinson instead of some one else or in some other way. If this be true, it could make no dif-. ference that Plutchinson gave the cashier, Wilfley, a direction to remit the entire amount to the owner. Until this was done, the fund, so far as the bank and Hutchinson were concerned, did not pass beyond the control of the latter. Such an order to the cashier was not irrevocable. If revoked the bank could assume that Hutchinson had changed his mind as to the time and manner of payment; that he was still acting within the terms of his agency or had received new directions from his principal. As stated before, no authorities directly in point have been cited to us, nor have we, in the cursory examination made, found any directly in point. A case which substantially involves the principle, though differing somewhat from it in point of fact, is Munnerlyn v. Augusta Bank, 88 Ga. 838; s. c. 30 Am. St. Rep. 159, 14 S. E. 554. In that case it was ruled : “When a trustee deposits money in a bank to his credit as agent, the bank would be discharged by paying it back to the individual who made the deposit, and, in the absence of knowledge or notice to the contrary, has the right to assume that he will appropriate the money to its proper uses and trusts.” There can be no substantial difference between a case where an agent makes a deposit of money as “agent,” thus informing the bank that the fund is not in reality his, and one in which the agent makes the deposit in his own name but at the same time informs the bank that he is only the agent of another for it. In both cases the bank would have the right to assume that the agent in dealing with the fund was acting within the terms of his agency. Especially was this true in the case of the Valley State Bank, It had the right to assume that on account of Hutchinson’s presidency of it and his presumptive familiarity with its business, he knew the remittance had not been made, and knowing it had not been made had concluded to do otherwise with the fund in question. The cases of National Bank v. Insurance Co., 104 U. S. 54, and Van Allen v. American National Bank, 52 N. Y. 1, cited by counsel for plaintiff in error, are not cases where the agent had checked out the amount of the deposit as Hutchinson had done, but they were cases in which the fund still existed in the agent’s name, and in both instances the question reduced to the ultimate was whether the fact of its being the fund of another than the agent could be shown by the equitable owner. This is not our question. The conclusion being that a trust did not attach to Hutchinson’s general deposit in favor of Abell or other assignee of the mortgage, it follows that none subsequently attached by the new direction given on the 3d of January to remit the balance of $3800 of deposit to Abell in payment on the mortgage note. That was nothing more than a direction by Hutchinson to use his money to pay his debt. At that time the bank was demanding from Hutchinson repayment of the money it had advanced to him with which to discharge the other note. On any funds shown by the books to belong to Hutchinson and concerning which it had no other knowledge, it had a banker’s' lien which it could enforce as against him, and as against any of his general creditors. (1 Morse, Bank., § 324, et seq.) It did enforce that lien by debiting Hutchinson’s account with a proportionate amount of the indebtedness due to it; besides, as before stated, it is not clear that Hutchinson did not assent to the action of the bank. The court specially found upon that subject as follows : “The evidence does not show by a preponderance thereof that there was an agreement upon the part of the Valley State Bank, by any of its officers, with W. E. Hutchinson that the $700 loaned to Hutchinson mentioned in the preceding finding and the balance of $3800 credit on Hutchinson’s general account with the bank should be used by the bank or its officers in payment of the note in suit, and no part of said sums was, at any time, set apart for the purpose of paying the note in suit.” The general finding haying been against the plaintiff in error, we are bound to assume that as finally made it was against it upon that specific point. If Hutchinson borrowed the $700 for the purpose of applying it upon the Abell note, and the bank knew this intention when it made the loan to him, it would be oound to permit its application to the intended purpose ; it would be held to have waived its lien upon the fund thus loaned, and to have agreed to Hutchinson's use of it in the discharge of his other debt — in fact, it would be held to have made the loan to him for that purpose. The burden of proof as to the making of this agreement, or the occurrence of facts from which the agreement could be implied, rested on the plaintiff. That burden, as the court finds, was not discharged by a preponderance of the evidence. In the absence of an assent, express or implied, upon the part of the bank to allow the use of the money loaned for a specific purpose, it would, when passed to Hutchinson's credit, become covered, as his other funds were, by the lien of the bank. The judgment of the court below will be affirmed. Johnston, J., and Smith, J., concurring.
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Per Curiam : This case was tried in the circuit court of Shawnee county upon an agreed statement of facts in writing. Judgment was entered in favor of the defendant below on January 19, 1893. On January 21, 1893, the plaintiff below filed a motion for a new trial, which motion was overruled on February 8, 1893. On that day sixty days were allowed to plaintiffs below to make a case, with time to defendants to suggest amendments. The case was settled and signed. A motion has been made to dismiss the proceedings in error for want of jurisdiction in this court. This motion must be sustained. In order for plaintiffs below to obtain a review it was necessary for them to serve a case-made within three days from the date of the final judgment, January 19, or within that period obtain an extension of time. (Gen. Stat. 1897, ch. 95, § 589; Gen. Stat. 1889, ¶ 4649.) No motion for a new trial was necessary in the circuit court, the case having been tried upon an agreed statement of facts. (Ritchie v. K. N. & D. Rly Co., 55 Kan. 36, 39 Pac. 718.) The motion being unnecessary, the filing of it cannot serve the purpose of extending the time beyoncl the three days from the entry of judgment in which to make and serve a case or to apply for an extension of time. (Schnitzler v. Green, Constable, 5 Kan. App. 656, 47 Pac. 990.) It is urged that because defendant in error appeared and argued this case in the court of appeals it cannot now complain of defects in the case-made. This matter, however, affects the jurisdiction of the court over the subject-matter and cannot be waived. It has been held by this court that “the district judge has no power to extend the time for making a case after the time fixed by the statute and by the order of the court and judge has once elapsed.” The parties to a record cannot extend the time for making the case by stipulation between themselves, in the absence of an order of the court or judge granting such an extension, (Ætna Life Ins. Co. v. Koons, 26 Kan. 215; Gamble v. Turner, 36 id. 679, 14 Pac. 255; Weeks v. Medler, 18 id. 425; J. C. & Ft. K. Rly. Co. v. Wingfield, 16 id. 217.) If neither the trial court nor the attorneys for both parties by consent, nor all combined, could, after the lapse of the original time, confer jurisdiction on this court, it could not be¡ conferred by one of the parties appearing and resist ing the case upon, its merits. (Herrick and another v. The Racine Warehouse and Dock Co., 43 Wis. 93; The Lacy, 8 Wall. 307.) The petition in error will be dismissed.
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The opinion of the court was delivered by Smith, J. : By exercising his right of set-off as against the corporation, the defendant in error defeated the plaintiff below in his effort to obtain-judgment for a greater part of the latter’s liability as a stockholder to creditors. The defendant below might be said to have had two funds available for the payment of his judgment of $5500 against the corporation, rendered on the defaulted debenture bonds held by him : (1) His own liability as a stockholder in the corporation to the amount of $6000; (2) his interest in the debenture securities executed and delivered directly to him by the corporation ; while the plaintiff in error could look to but one fund — the stockholder’s liability of defendant in error. It is a general rule of equity that if a prior creditor satisfies his demand out of a fund which alone is pledged to a junior creditor, and thereby exhausts that fund, equity will subrogate the latter creditor to the former’s lien upon that fund which.is not exhausted. (Sheld. Sub., § 62.) See, as particularly applicable to the facts in the case at bar, Hudkins v. Ward, 30 W. Va. 204, 3 S. E. 600. The defendant below, when sued as a stockholder, said to plaintiff: "The corporation owes me nearly as much as the amount of my stock, as evidenced by my judgment against it on its debenture bonds. I will set off this liability of the corporation to me against my liability to you as a stockholder.” The position taken by the defendant below was concurred in by the trial court. He was allowed,to offset the amount of his claim and judgment against the trust company as against his stockholder’s liability. His statutory liability as such stockholder was discharged by the surrender of his claim against the corporation on the debenture bonds. The plaintiff below now says : "Give to me the claim which the defendant had against the corporation. His use of it as a set-off against the corporation prevented me from obtaining a judgment against him on his liability as a stockholder. He has thus, to the extent of said claim, been discharged from his liability to me by reason thereof.” The defendant below can have no interest in opposing the demand of the plaintiff below, for the former has no further claim against the corporation based on the debenture bonds. He has used the same in discharge of his liability as a stockholder. If, as is said, there is $500 or any other amount to the credit of the defendant in error in the hands of the debenture trustees, the proceeds of mortgages deposited to secure the debentures, he cannot receive it. He must and has. surrendered all claim to the same. The case is not analogous to bonds paid by the company. If the company has paid them its capital stock or assets would have been diminished in proportion to the amount paid. This process of set-off did not have such effect. Miles Strickland and his associate debenture holders never contracted with the trust company or with each other with reference to a contingency presented by the case at bar, and the same could not, in the reason of things, have been anticipated. If the contention of plaintiff in error is to prevail, the debt which the corporation owes him is satisfied to the extent of the amount he can collect on the $400 judgment against the Strickland estate and the amount he may collect on the debenture bonds held by Strickland. The amounts plaintiff in error may thus receive reduces his judgment against the corporation in proportion, consequently relieving other stockholders from their liability to him, without affecting any of the rights of the defendant in error. It seems to us that the rules of equity demand an assignment by defendant in' error of the debentures and judgment thereon to the plaintiff in error, placing him in the shoes of defendant below. The prayer for general relief is sufficient to permit the equities of the parties to be thus adjusted under the pleadings. Nor do we think that the trustees holding the securities back of the debentures are necessary parties. The defendant below can be required to make the assignment of his debentures and judgment, which are mere choses in action, on pain of suffering a personal judgment to be rendered against him for the whole amount of the judgment of plaintiff below against the corporation, or a decree entered which shall itself operate as an assignment. Such a disposition of the case benefits other stockholders and nowise affects prejudicially the rights of defendant in error. In Crippen v. Chap pel, 35 Kan. 499, 11 Pac. 453, it is said : “The right of subrogation, or of equitable assignment, is not founded upon contract alone, nor upon the absence of contract, but is founded upon the facts and circumstances of the particular case, and upon principles of natural justice.” The equitable rights of the plaintiff in error are superior to those of the debenture holders, because it is solely through the suit brought by the former that the stockholder’s liability of the defendant in error became available for the payment of his claim. It is only by reason of this suit that the security in the hands of the trustees is released for the benefit of any creditor of the insolvent corporation. The judgment will be modified, with directions to the court below to proceed further in accordance with this opinion.
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The opinion of the court was delivered by Dostek,, C. J. : This is an appeal from a judgment of conviction for the failure of the appellant as an agent to deliver to his employer on demand money which came to the possession of the agent by virtue of his agency. The statute under which the conviction was had is the last clause of section 95, chapter 100, General Statutes of 1897 (Gen. Stat. 1889, ¶ 2220), which reads as follows : “If any agent shall neglect or refuse to deliver to his employer or employers, on demand, any money, bank bills, treasury notes, promissory notes, evidences of debt, or other property which may or shall have come into his possession by virtue of such employment, office, or trust, after deducting his reasonable or lawful fees, charges or commissions for his services, unless the same shall have been lost by means beyond his control before,he had opportunity to make delivery thereof to .his employer or employers, or the employer or employers have permitted him to use the same, he shall upon conviction thereof be punished in the manner provided in this section for unlawfully converting such money or other property to his own use.” The principal claims of error arise upon the instructions of the court and upon the court’s refusal of defendant’s request for instructions. It will be observed that the above statute does' not, in its phraseology, make a criminal intent an ingredient of the offense defined. The court in its instructions omitted to charge the jury that the possession of a criminal intent by the defendant was necessary to his conviction, and on the other hand refused the defendant’s request for the following instruction : “An essential element in the crime charged in this case is a felonious intent, and before you can convict the defendant you must find from the evidence that he intended to convert to his own use the money of. the prosecuting witness, and to cheat, wrong and defraud him.” Other requests for instructions preferred by the defendant applied the theory of criminal intent as an ingredient of the crime charged to the special facts of the case as developed by the evidence. These were all refused. The court erred in refusing to instruct the jury as requested. In The State v. Brown, 38 Kan. 390, 16 Pac. 259, the defendant was prosecuted for the offense of being drunk in a public highway. The defense' made was ignorance upon the part of the defendant of the intoxicating character of the liquor drunk by him. The court refused the defendant’s offer of evidence to show his ignorance of the intoxicating character of the liquor, and instructed the jury: “The defendant’s ignorance of the intoxicating character of the liquor drunk by him, if he did drink any such, is' no excuse for any drunkenness resulting therefrom, if any did so result.” These rulings were held to be erroneous. The question principally discussed by the court in its decision of the case was whether ignorance or mistake of fact will excuse the commission of an act otherwise criminal. It was held that it would do so. Some of the requests for instructions preferred by the defendant in this case raise again this identical question. This question, however, presents only a phase of the broader and more general one — whether intent to do wrong is a necessary element of crime. The general rule, of course, is that a guilty intent is a necessary ingredient of crime. (Bishop, Stat. Crime, §§ 132, 231, 351, 362.) We do not understand it to be disputed in this case as a general proposition. However, its application to the case is denied because of the failure of the statute to declare intent to be an ingredient of the offense. There are some cases which, hold that unless made so by statute a guilty intent is not necessary to the commission of offenses mala prohibita; that is, not inherently bad, only bad because prohibited. The offense charged against the defendant in this case is not bad merely because prohibited, but it is malum in se — bad in itself. It is a species of embezzlement, and is classified by the statute in immediate connection with the common-law forms of embezzlement, and the punishment ordained for its commission is the same as the punishment for embezzlement proper. We feel quite clear that the principle upon which The State v. Brown, supra, was decided applies in this case, and that the court should have instructed as the defendant requested. The judgment of conviction is therefore reversed, with instructions to grant the defendant a new trial.
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The opinion of the court was delivered by Smith, J. : At the time the land wTas sold the plaintiff below was a minor about four years of age. This action was commenced within two years after she reached her majority. We think a right of action was saved to her under section 11, chapter 95, General Statutes of 1897. (Gen. Stat. 1889, ¶ 4094.) Said] section 11 refers to the five paragraphs composing section 10. The remedy sought in this action is mentioned in'the second paragraph of said section 10. The first assignment of error relates to the jurisdiction of the probate court. It is claimed that the failure of the petition for the appointment of an administrator to allege that the deceased, Samuel K. Thompson, was an inhabitant of Shawnee county or a non-resident of the state at the time of his death, did not confer jurisdiction upon the probate court to do any act in relation to the administration of the estate. Authorities are cited from other states which fortify the position of plaintiff in error on this question. (Estate of Moore v. Moore, 33 Neb. 509, 50 N. W. 443.) It is admitted, however, that Samuel K: Thompson was, in fact, an inhabitant of Shawnee county at the time of his death. In Brubaker v. Jones, 23 Kan. 411, this court, speaking through Mr. Justice Valentine, said : “The statute does not anywhere prescribe how the jurisdictional facts shall be ascertained; hence the probate court may ascertain them as best it can; and if it ascertain them correctly, that is all that is required. All that is really necessary is that the jurisdictional facts shall exist as facts ; and how the court ascertains them is wholly immaterial. And when the court ascertains these facts and makes the appointment, the letters of administration are themselves prima facie evidence of such facts.” The probate court ascertained the fact that the deceased was an inhabitant of Shawnee county at the time of his death, and the issuance of letters of administration will be taken as prima facie evidence that the court had jurisdiction over the matter. The question raised by plaintiff in error does not longer admit of debate in this state. When the petition to sell the real estate was presented, the court set the hearing for thd 9th day of August, and ordered that notice of the same be given “ by publication for two weeks prior to said 9th day of August.” The first publication of the notice was on July 29 and the last on August 5. It is contended that, because only eleven days elapsed between the first publication and the day of hearing the petition, the order of sale was void. Section 118, chapter 107, General Statutes of 1897 (Gen. Stat. 1889, ¶ 2902), relating to proceedings in the probate court for the sale of lands of decedents, reads: “The court shall require notice of the petition, and of the time and place of hearing the same, to be given for such length of time and in such manner as the court may see proper.” The court had, under this section, full authority and discretion to fix the time of the notice as he saw fit, and in doing so he was nowise restricted by law. The defect in the notice must have rendered the proceedings void in order to avail the plaintiff. If merely voidable, the defects cannot be reached by this collateral attack. The sale of the real estate was confirmed by the court, and a deed issued to the purchaser. In Freeman on Void Judicial Sales, section 44, it is said : “As to the matters upon which a court is required to adjudicate in its order of confirmation, we see no reason why its decision should not be binding, and should not preclude the reassertion of any matter which was either passed upon by the court or which the parties might have had passed upon if they had chosen to bring it to the attention of the court. After a sale has been confirmed, it cannot be defeated by showing collaterally that there was a failure to appraise the property or a defect in the notices of sale, or that the administrator did not exact security for the payment of the purchase-money, or that the commissioner-who made the sale was not authorized to make it.” There is a wide distinction between cases where the notice is defective and where there has been no notice at all. In the latter the court is without jurisdiction to act. (Bryan v. Bauder, 23 Kan. 95.) In Fleming v. Bale, 23 Kan. 88, a petition was filed January 18 in the probate court for the sale of real estate to pay debts of the deceased. It was ordered that the administrator cause notice of' the pendency of the proceeding, and the' time and hearing of the same, to be published in a newspaper for two consecutive weeks, and the hearing was set for January 29. The notices were published on the 20th and 27th of January. The court held that this order meant that the publication should be made two consecutive times. The court says : “ We do not think any of the foregoing irregularities or defects can vitiate the proceeding of the probate court when attacked collaterally, as in this case.” See also Wyant v. Tuthill, 17 Neb. 495, 23 N. W. 342. In Nebraska, the rule as to sheriffs’ and administrators’ sales is the same. It is next contended that the sale of the real estate, having been advertised to be held at the door of the court-house on September 11, was void when held elsewhere at a subsequent time. The statute provides that the sale shall be made by auction at the door of the court-house, or at such other place as the court may direct. (Gen. Stat. 1897, ch. 107, § 130; Gen. Stat. 1889, ¶ 2915.) The court had power to fix the time and place of sale in the first instance at the place where and time when it was finally held. It ratified and confirmed the sale so made. It approved a sale made at a time and place which it had full power to fix in the original order. Mr. Freeman, in his work on Void Judicial Sales, section 44, says : "AVith respect to chancery and probate sales, we apprehend that their confirmation has an effect beyond that conceded in Kansas to the confirmation of execution sales. The object of the proceeding for confirmation is to furnish an opportunity for inquiry respecting the acts which have been done under the license to sell. The court may, if it deems best, ratify various irregularities in the proceedings. If the officer changed the terms of the sale, the court may ratify his action, provided the terms, as changed, are such as the court had power to impose in the first instance.” The strict rules applicable to tax sales cannot be applied to'sales made under the supervision of the probate court. Tax sales are wholly regulated by statute, and no tribunal is created by law to direct or confirm them. They differ widely from sales ordered by a court of record. In Howbert v. Heyle, 47 Kan. 58, 27 Pac. 116, it is said : " It must also be remembered that the probate court in this state is a court of record (Const., art. 3, § 8, Act Relating to Probate Courts, § 1) ; and, while it has jurisdiction only of particular classes of things, such as the care of the 'estates of deceased persons, minors, and persons of unsound mind, yet it has general jurisdiction of these things. Plence all presumptions should be in favor of the regularity of all the proceedings of probate courts, within their jurisdiction, of the aforesaid particular classes of things, and such proceedings should seldom be held to be void when attacked collaterally, as in this case ; never, indeed, except where it is shown affirmatively that the court had no jurisdiction." In Emery v. Vroman, 19 Wis. 724, a guardian’s sale of real estate was ordered by the probate court, in which order it was directed that certain .other property should be first sold before resorting to the real estate in controversy. The sale was confirmed. The court said : “ The lands were not sold in the order of the license. This defect, if such it was, was cured by the order of confirmation. The same court from which the order emanated had, in its discretion, the power to modify it, or to dispense with its strict performance in the particular named. This was done by the order of confirmation." See, also, Jacob’s Appeal, 23 Pa. St. 477; Thorn v. Ingram, 25 Ark. 52. The sale of the property seems to have been fairly made, at a place near to the land in controversy, at a time when a public sale had drawn together a large number of persons. In fact, it appears that the place where the sale was held was much more favorable to the obtaining of a higher price than if the land had been sold at the door of the court-house in Topeka. The complaint that the property was purchased by the auctioneer, J. Q,. A. Peyton, who was an agent of the administrator, is without merit. The proof showed and that between the time of the sale and the execu that Hollenshade was the successful bidder at the sale, tion of the deed Peyton arranged with Hollenshade for the purchase of one-half the property, and for convenience a deed was made by the administrator to Hollenshade and Peyton. While there were irregularities in the proceedings of the probate court and in the action of the administrator which might have been sufficient in a direct attack thereon to have justified a setting aside of the sale, yet we find no such vital defects therein as to deprive the probate court of jurisdiction, and the sale having been confirmed by that court and the deed issued, the proceedings must stand as against a collateral attack of this nature. The judgment of the district court will be affirmed.
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The opinion of the court was delivered by Smith, J. : This was an action for the recovery of damages by reason of the death of Leigh Walter Howell, which was caused, as is alleged, by the wrongful act, neglect and default of the defendant in error, the Consolidated Barb-Wire Company. On December 2, 1897, an amended petition was filed -in the cause, to which a general demurrer was interposed by the defendant. This demurrer was sustained by the court, and the plaintiff below electing to stand thereon, judgment was rendered in favor of the defendant. The question for our consideration is whether the amended petition states facts sufficient to constitute a cause of action. It is alleged in said amended petition that the plaintiff, W. P. Biggs, on July 26, 1897, was duly appointed administrator of the estate of Leigh Walter Howell, deceased ; that the defendant is a corporation and had for a long time operated a wire-nail and barb-wire plant on the south bank of the Kansas river at Lawrence; that said plant is run by water power, and that the power is transmitted to said wire mill and plant about 125 feet by a certain shaft owned and controlled by the defendant; that said shaft is about six inches in diameter, and is located about fifteen or eighteen feet above the water, supported on timbers which are about eighteen inches apart, said timbers being supported by a stone buttress or pier; that about twelve or eighteen feet west of said buttress or pier is-a collar or coupling about eight inches in diameter around.said shaft, and in the outer rim of said collar or coupling is a bolt or set-screw which, projects out some four or five inches from the outer rim of the collar or coupling ; that the shafting and connections and attachments are open and exposed and in no manner covered or.enclosed; that the shaft revolves at the rate of about 100 to 150 revolutions per minute ; that on the 21st day of April, 1897, said’Leigh Walter Howell was fishing and playing near to and under said shaft, and in attempting to climb up from below, on a ladder for that purpose built by the defendant, to the timbers on either side of said shaft, the aforesaid bolt or set-screw which projected from the collar or coupling on said shaft caught in the back of his coat, and he was whirled around said shaft and against said timber’s with irresistible force and killed ; that the wire company was guilty of gross carelessness toward the deceased in that, through its officers, it had actual notice of the faulty construction of said machinery, and that at the place of the accident it was unsafe and dangerous ; that it was guilty of gross carelessness toward the deceased in not enclosing or boxing the collar, coupling, and screw, and in leaving the same exposed and open, and further in allowing the set-screw or bolt to project four or five inches from the rim of the collar or coupling, and in not boxing it; and was careless in leaving the machinery and timbers supporting the same, and the immediate surroundings, which were attractive to children, open and exposed, wholly unguarded and unfenced ; that the deceased could not see the bolt or set-screw by reason of the shaft revolving so fast as to render it invisible ; that the place where plaintiff's intestate was killed and the machinery and timbers supporting the same and the surroundings were attractive to children ; and that children, and particu larly boys, were in the habit of resorting there for the purpose of amusement, and men and boys were in the habit of climbing about on the timbers which supported the shaft for the purpose of fishing and playing, and that the company had notice of such facts ; that the defendant company knew that the said machinery was unsafe and dangerous, for the reason that other persons had been caught by said screw; that said shaft is built across what would be New Hampshire street, if projected ten feet into the water ; that said dangerous machinery was left in an open and exposed place, unfenced and unprotected, and in a place attractive to children ; that at the time of the accident, April 21, there were no sign-boards on or about said premises, but previous to that time there had been, and the same had been put up and erected by defendant company, but that since April 21 the defendant had placed and erected danger-boards on and around said premises ; that Leigh Walter Howell, the deceased, was a boy of fourteen years of age, intelligent, healthy and promising at the time of his death; that he left a father, brother and sister surviving him. All the allegations of the petition being admitted, together with such facts as are properly inferable from the language used, wrn are unable to perceive that they demand the application of any different rule than that heretofore adopted and adhered to by this court in cases substantially similar.' The structure erected and maintained by the wire company was of such a nature as to be attractive to children, especially to boys-. It was situated in a place about which boys and men congregated for the purpose of amusement, and boys were in the habit of climbing about on the timbers that supported the shaft for the purpose of fishing and playing, of which fact the wire company had'actual notice. At the top of the structure was a collar or coupling in which was a set-screw projecting four or five inches from the outer rim of the coupling. When in motion this collar or coupling and the set-screw revolved at the rate of from 100 to 150 revolutions per minute, by reason of the velocity of the shaft, so that the screw was invisible. There was a ladder extending to the top of the structure upon which the boy climbed until, when near the top, he was caught in the back of the coat by this revolving set-screw which projected from the collar, and, being whirled round the shaft and against the timbers, he was killed. The case of Price v. Water Co., 58 Kan. 551, 50 Pac. 450, is an authority directly in point. In that case the boy drowned in the reservoir of the water company was bright and intelligent. He was^a trespasser on the grounds of the water company. The grounds about the reservoirs were enclosed with a barb-wire fence ten to twelve wires high. The deceased entered the enclosure by climbing over a stile.' The watchman of the water company was aware of the habit of boys to climb over the stile, and permitted them to do so without objection. The boy went with some companions to the reservoir to fish and play, and, venturing upon an "apron” which extended from the bank out into one of the reservoirs, was drowned. His parents had frequently warned him of the danger of going to the reservoir, and he had trespassed there once before without their knowledge. In the Price case, as in the case at bar, two grounds of error were urged : (1) That the defendant was not negligent in maintaining the premises ; (2) that the deceased was guilty of contributory negligence. The two grounds were disposed of by this court in an opinion reviewing the authorities. Among other things the court said : “It is, however, contended by the defendant in error that, inasmuch as the deceased was a trespasser upon its grounds, it owed to him no duty to guard against the accident which occurred. Without doubt, the common law exempts the owner of private grounds from obligation to keep them in a safe condition for the benefit of trespassers, idlers, bare licensees, or others who go upon them, not by invitation, expressed or implied, but for pleasure or through curiosity. Cool. Torts (2d ed.) 718; 1 Thompson, Negl. 303; Dobbins v. M. K. & T. Rly. Co., 91 Tex. 60, 41 S. W. 62. The common law, however, does not permit the owner of private grounds to keep thereon allurements to the natural instincts of human or animal kind without taking reasonable precautions to insure the safety of such as may be thereby attracted to his premises. To maintain upon one’s property enticements to the ignorant or unwary is tantamount to an invitation to visit, and to inspect and enjoy; and in such cases the obligation to endeavor to protect from the dangers of the seductive instrument or place follows as justly as though the invitation had been express.” The court quotes approvingly from the case of K. C. Rly. Co. v. Fitzsimmons, 22 Kan. 692, when passing on the question of contributory negligence of the deceased. “ Boys can seldom be said to be negligent when they merely follow the irresistible impulses of their own natures — instincts common to all boys. In many cases where men, or boys approaching manhood, would be held to be negligent, younger boys, and boys with less intelligence, would not be. And the question of negligence is in nearly all cases one of fact for the jury, whether the person charged with negligence is of full age or not.” See, also, Kinchlow v. Elevator Co., 57 Kan. 374, 46 Pac. 703; Railway Co. v. Carlson, 58 id. 62, 48 Pac. 635. From the peculiar character of the structure upon which the plaintiff’s intestate was killed, and its proximity to the water of the Kansas river, it certainly presented to the average boy a desirable place from which to fish, and considering the inbred disposition and ever present impulse in children, especially boys, to explore and investigate, this structure over the water appealed strongly to such natural ificlination. The wire company had notice that this structure was used by men and boys as a fishing platform ; and having this notice, it was a question for the jury to say whether it was negligent in maintaining it in its condition at the time of the accident. The death of the plaintiff’s intestate was directly caused by the revolving set-screw attached to the coupling on the shafting which was supported by the upright timbers. Its velocity was so great that neither a boy of fourteen nor a man of mature years could have seen it. Except for the projecting pin on said coupling the appliance would probably have been safe and no harm would have resulted to the boy. It was not boxed or covered. It is contended by the defendant in error that the prior decisions of this court above cited are not precedents in the case at bar for the reason that in none of them has a boy of the age of fourteen years been held incapable of knowing the consequences of his acts. We cannot say, as a matter of law, at what age a boy would be possessed of such intelligence, foresight and judgment as to charge him with contributory negligence in a case like the present. It is peculiarly within the province of the jury to determine such questions. In the Carlson case, supra, it is said : "As a matter of fact, we kpow that there is great difference in the capacity of different children at the same age, owing as well to. differences in education and surroundings as to natural capacity. The question as to the capacity of a particular child at a particular time to exercise care in avoiding a particular danger, is one of fact, falling within the province of the jury to determine.” The judgment of the court below will be reversed, with instructions to overrule the demurrer to the petition.
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