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Per Curiam:
All of these cases are the same in every respect as The Pleasant Hill & DeSoto Railroad Company v. A. G. Carpenter, Treasurer, just decided, and the decision given in that case is applicable to these. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action by Ruth Brittain, a widow, to recover damages for herself and minor children resulting from the alleged wrongful death of her husband in a collision of motor vehicles. The plaintiff prevailed and defendants have appealed.
The defendants were Earl Williams, owner of the semitrailer truck involved; Wichita Forwarding Company, a corporation, the lessee and operator of the truck, which was engaged as a common motor carrier under a Kansas motor permit; Ed Moran, driver of the truck; and The National Mutual Casualty Company, the insurance carrier.
The death occurred as the result of a collision when H. E. Brittain drove his 1941 Chevrolet coach into the rear end of the truck which was alleged to have been unlawfully parked facing south on the west side of highways U. S. 59 and U. S. 50 south, at a point approximately five miles north of the city of Ottawa, without lights thereon or fiares and other warning signals required by law.
The deceased was approximately fifty-five years of age and in good health. His average earnings were approximately $300 per month. The jury returned a general verdict for plaintiff and against the defendants in the sum of $3,500 and answered special questions. Appellants assert the trial court erred in overruling (1) their demurrer to appellee’s evidence; (2) their motion for a directed ver'dict; (3) their motion to set aside certain findings of the jury on the ground the general verdict and such findings of negligence were based purely on inference and conjecture; (4) their motion for judgment on the ground the evidence showed deceased was guilty of negligence which caused the accident; and (5) in overruling their motion non obstante veredicto.
Although there was one disinterested eyewitness to the accident within seventy-five feet appellee did not subpoena him. He testified on behalf of appellants. The deceased and the driver of the truck were alone in their respective vehicles. The accident occurred between 9:30 and 9:45 at night. The night was clear. Appellee does not contend there was evidence of any vehicle approaching from the opposite direction. Appellants’ evidence was no such vehicle was approaching.
In the view we take of this appeal we find it necessary to treat only appellants’ last contention. The specific allegations of the truck driver’s negligence were:
“(a) In stopping or parking said truck upon the improved and main traveled part of said highway in the direct way of automobiles traveling in the direction of the automobile which the said H. E. Brittain was driving;
“(b) In stopping or parking said truck upon said highway in the night-time without lights burning, without flares, and without any other mode of warning being displayed;
“(c) In failing to display lighted lamps, flares or other illuminating devices required by law on said truck while it was being operated on said highway in the night-time.”
In answer to special questions the jury found:
“1. Q. Do you find the defendants, Ed Moran and The Wichita Forwarding Company, guilty of negligence? A. Yes.
“2. Q. If you answered the foregoing question in the affirmative, then state in what such negligence consisted? A. Stopped on the highway without proper precautions.
“3. Q. Do you find the deceased H. E. Brittain guilty of negligence which contributed to his death? A. No.
“4. Q. If you answered the foregoing question in the affirmative, then state in what such negligence consisted. A.-.
“5. Q. Do you find that the Defendants’ truck was standing still on the highway when the collision occurred? A. Yes.
“6. Q. Were the lights burning on the back of the truck at the time of the collision? A. Doubtful.
“7. Q. State whether or not there were any cars coming from the south whose lights blinded said deceased immediately prior to the collision. A. No.
“8. Q. State the rate of speed at which said deceased was traveling at the time of the collision. A. 55 M. P. H.”
The accident occurred March 28, 1947. The pertinent statute at that time (since amended in some particulars by chapter 106, laws 1949) was G. S. 1947 Supp. 8-5,108. Insofar as material here it provided:
“(a) No person shall operate any motor truck upon a highway outside of a business or residence district at any time from a half hour after sunset to a half hour before sunrise unless there shall be carried in such vehicle a sufficient number of flares, not less than three, or electric lanterns or other signals capable of continuously producing three warning lights each visible from a distance of at least 500 feet for a period of at least eight hours, except that a motor vehicle transporting flammables may carry red reflectors in place of the other signals above mentioned. Every such flare, lantern, signal, or reflector shall be of a type approved by the commissioner, and he shall publish lists of those devices which he has approved as adequate for the purposes of this section. (b) Whenever any motor truck and its lighting equipment are disabled during the period when lighted lamps must be displayed on vehicles and such motor truck cannot immediately be removed from the main traveled portion of a highway outside of a business or residence district, the driver or other person in charge of such vehicle shall cause such flares, lanterns, or other signals to be lighted and placed upon the highway, one at a distance of approximately 100 feet in advance of such vehicle, one at a distance of approximately 100 feet to the rear of the vehicle, and the third upon the roadway side of the vehicle. . . .” (Our italics.) ■
This statute was interpreted in Rasing v. Healzer, 157 Kan. 516, 142 P. 2d 832. We there said:
“It should be noted the section just quoted requires flares, lanterns or other signals to be put out ‘whenever any motor truck and its lighting equipment are disabled’ during the time when lighted lamps are necessary and when such motor truck cannot immediately be removed from the highway. It should also be noted that a fair interpretation of the section requires the conclusion that the truck must be parked or stopped to necessitate the putting out of flares, etc. It must further be noted such action is necessary only when the lighting equipment is disabled or for some other reason is turned off and not lighted.” (p. 525.) (Our italics.)
The burden, of course, rested on appellee to establish the alleged negligence that the truck was not lighted at the time of the accident. For the purpose of obtaining a ruling on the motion non obstante, which we are presently considering, the findings of the jury are conceded to be supported by the evidence. (Eldredge v. Sargent, 150 Kan. 824, 829, 96 P. 2d 870; Rasing v. Healzer, supra.) For present purposes we must, therefore, consider the findings as they stand.
Appellants assert the rule to be that answer No. 6 does not establish the negligence charge that the truck was not lighted at the time of the accident. They insist the answer, “Doubtful,” must be construed against the party upon whom the burden rested to show the truck was not lighted. The contention is good. (Schaefer v. Interurban Railway Co., 104 Kan. 394, 400, 179 Pac. 323; Steele v. Woodmen of the World, 115 Kan. 159, 222 Pac. 76.) In the Steele case it was said:
“An expression of doubt is not tantamount to a finding of fact. Doubt indicates an uncertainty, a lack of suiflcient information upon which to reach a conclusion. (19 C. J. 447.)” (p. 166.)
The answer to question No. 6 must be interpreted as “Yes.” It follows the specific charge of negligence that the truck was not lighted was not established. As previously indicated in the Rasing case, supra, flares are not required when the truck is properly lighted.
Answers to questions Nos. 1 and 2 are general in character. They are refuted by the specific and detailed finding No. 6. General findings must yield to detailed findings on the same subject. (Eldredge v. Sargent, supra, p. 833, and cases there cited.)
Counsel for appellee argue strenuously a deceased is favored with the presumption of having exercised reasonable care for his own safety. We need not discuss that rule here. It could become material only on the question of negligence of the deceased. The first bar to appellee’s recovery is her failure to prove the alleged negligence of appellants. Until she has established the alleged negligence of the appellants lack of negligence on the part of the deceased, assuming it be a fact, is immaterial.
The judgment is reversed with directions to enter judgment for appellants. | [
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The opinion of the court was delivered by
HortON, C. J.:
After the referee filed his report with the bill of exceptions of plaintiff, containing all the evidence, the plaintiff moved for a new trial, challenging the findings of fact and conclusions 'of law. Thereon the court decided that the seventh fiuding of fact in the report of the referee was not sustained by any evidence whatever, but was contrary thereto. The court also found that the fifth finding of fact was not supported by any evidence. It refused, however, to set aside the report of the referee, or grant a new trial, but confirmed the report in all things. The defendant, Hattie B. Franks, then remitted the sum of $130 found to be due her from the plaintiff.
The ruling of the court confirming in all things the referee’s report cannot be sustained. Two important and material findings in the report have no evidence whereon to rest, and yet these findings are approved, as well as those supported by the evidence. It is impossible, therefore, to determine whether the judgment rests upon the findings of fact supported by evidence, or upon the erroneous findings which ought to have been wholly disregarded.
As the referee is an officer of the court, the court can set aside, or modify, or confirm his report, (Hottenstein v. Conrad, 9 Kas. 435;) but here the court affirmed the report of the referee in all things after it had decided that material findings of fact were not sustained by any evidence, and then rendered judgment thereon. In this consisted the error of the district court.
As a new trial must be had in the case, it becomes important to declare the law upon the subject of the right to redeem, where the mortgagor has conveyed to the mortgagee the equity of redemption. There is no legal inhibition on a mortgagor selling the mortgaged property to the mortgagee in satisfaction of his debt. “ To give validity, however, to such a sale by a mortgagor, it must be shown that the conduct of the mortgagee was in all things fair and frank, and that he paid for the property what it was worth. He must hold out no delusive hopes; he must exercise no undue influence; he must take no advantage of the fears or poverty of the other party. Any indirection or obliquity of conduct is fatal to his title. Every doubt will be resolved against him. Where confidential relations and the means of oppression exist, the scrutiny is severer than in cases of a different character. The form of the instruments employed is immaterial. That the mortgagor knowingly surrendered and never intended to reclaim, is of no consequence. If there is vice in the transaction, the law, while it will secure to the mortgagee his debt with interest, will compel him to give back that which he has taken with -unclean hands. Public policy, sound morals, and the protection due to those whose property is thus involved, require that such should be the law.” (Villa v. Rodriguez, 79 U. S. 323; 2 White & Tudor’s Leading Cases in Equity, pt. 2, 4th ed., 1984-6; Perkins v. Drye, 3 Dana, 170.)
Counsel for defendants refer to Amos v. Livingston, 26 Kas. 106, as announcing a contrary doctrine. The circumstances of that case fully support the judgment of the trial court as affirmed by this court, within the principles above announced; but a portion of the language of the opinion is not approved, and the third part of the syllabus should be limited and qualified. Where the mortgagee takes the mortgaged property in satisfaction of his debt, the burden is upon him to show that the sale or release of the mortgagor’s equity was made willingly, that the conduct of the mortgagee was in all things fair and frank, and that he paid for the property what it was worth. There was some evidence introduced before the referee, that certain property was included in the chattel mortgage not in the possession of plaintiff, and -that the defendants took advan tage of the fears of plaintiff in making the alleged purchase. If it shall appear upon another trial that such was the case, the law will not uphold a sale made by the mortgagor under such circumstances.
As the answer set forth that the plaintiff “proposed in part payment of his indebtedness to sell absolutely at designated and agreed prices” the mortgaged property; that “said property was purchased in part payment of said indebtedness;” that “plaintiff has not owned any part of said property, or interest in the same, since February 19,1883,” and also alleged “that the defendants, nor either of them, deprived the plaintiff of any part of his property, save as he has done voluntarily and for which they paid him such price and prices, as were fair and he agreed to take,” we think sufficient facts were therein alleged, if the same shall be established within the principles herein announced, to sustain the purchase of the property embraced within the mortgage. At most, the statements in the answer are defective only. A repiy has been filed, and the answer has not been attacked either by demurrer or motion.
The judgment of the district court will be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
HortoN, O. J.:
The petition alleged, inter alia, that the Western News Company — a corporation organized under the ■laws of the state of Illinois — commenced on September 17, 1880, an action against George O. Wilmarth for the recovery of money; that on the day of the commencement of the action, said corporation wrongfully, maliciously and without just or probable cause therefor, obtained an order of attachment in that action against the property of Wilmarth, and thereafter entered the store of Wilmarth, in the city of Topeka, and attached and took possession of all his goods, wares and merchandise; that on November 10, 1880, such proceedings were had that the order of attachment was duly discharged.
I. It is contended that the trial court erred in overruling the demurrer to the petition, for the reason that “ corporations are not liable for torts where the ground of legal responsibility is evil motive.” The law is otherwise.
“ Corporations are responsible for the wrongs committed or authorized by them, under substantially the same rules which govern the responsibility of natural persons. It was formerly supposed that those torts which involved the element of evil intent, such as batteries, libels and the like, could not be committed by corporations, inasmuch as the state in granting rights for lawful purposes had conferred no power to commit unlawful acts, and such torts committed by corporate agents must ■consequently be ultra vires, and the individual wrongs of the agents themselves; but this idea no longer obtains.” ' (Cooley on Torts, 119; 2 Addison on Torts, § 1304; 2 Wait’s Actions and Defenses, 337; Vance v. Railway Co., 3 Vroom, 334; Goodspeed v. Bank, 22 Conn. 530.)
The rule is now well settled, that, while keeping within the apparent scope of corporate powers, corporations have a general capacity to render themselves liable for torts, except for those where the tort consists in the breach of some duty which from its nature could not be imposed upon or discharged by a corporation.
II. It is next contended that the court below erred in ad mitting the testimony of Wilmarth as to injury to his business credit and loss of probable profits. The evidence objected to tended to show that, at the time of the service of the order of attachment, Wilmarth was engaged in the book and stationery business in the city of Topeka, where he had been so engaged for several years; that he had a stock on hand worth about $1,200, and fixtures of the value of $400; that he was doing a business from $6,000 to $7,000 per annum, with a net profit of $1,500 to $1,600 a year; that the property of Wilmarth was held under the order of attachment until November 10, 1880, the date the attachment was discharged, and that on account of the attachment proceedings his business was broken up. On the one hand it is asserted that the loss of probable profits and business credit are too speculative and remote to be considered in the assessment of damages. On the other hand it is claimed that loss of credit and probable profits afford a legitimate ground of recovery where the writ of attachment is wrongfully sued out. As the case comes to us, it is unnecessary to pass upon this question, so elaborately discussed by thfe counsel of the parties in their briefs. If an attachment is sued out willfully and maliciously, under all the authorities the injured party is entitled to recover damages for his loss and trouble, not only compensatory but exemplary. (Wiley v. Keokuk, 6 Kas. 94; Hoge v. Norton, 22 id. 374; Winstead v. Hulme, 32 id. 568; Dow v. Julien, 32 id. 576.)
There is nothing in the record showing that the district court included in the judgment any damages for injury to business credit or loss of prbbable profits. Upon this point, the findings of the court are: “That the plaintiff Wilmarth sustained injury and damages by reason of the attachment of defendant; and that the damages sustained by the plaintiff, by reason of the attachment of defendant, were $400.” It further appears that at the time the goods were attached their value was $1,000, and that, soon after the áttachment was dissolved they' were disposed of at public sale for the sum of $400 only. Of course Wilmarth was entitled to recover damages for injuries to his stock of goods by its depreciation in value while under the control of the attaching officer. If counsel had desired to present the question whether damages for loss of credit or probable profits were embraced in the judgment, a request for a finding thereon should have been made. If it be suggested that the evidence objected to was introduced to establish damages for loss of credit and probable profits, it is a sufficient answer to say that this by no means follows. As exemplary damages are recoverable for the wrongful and malicious suing out of an attachment, a wide latitude is permitted in the introduction of the evidence in this class of cases. Such evidence may tend to show the malice, oppression or improper motives of the party obtaining the writ, and the evidence may go to the court or to the jury for consideration.
III. It is further contended, that the district court erred in permitting the plaintiff to introduce evidence tending to show the condition of the goods and the sale thereof upon execution after the discharge of the attachment. This evidence was received, we suppose, to show the injury to the goods during the time they were held under the'attachment proceedings, and also as tending to prove their depreciation. It appears from the evidence that an execution was levied upon all the stock very shortly after the attachment was dissolved, and before any return of it was made to Wilmarth; therefore the condition of the stock at the time of the levy of the execution was pertinent, and the price that the goods sold for at public sale some evidence of their value at the time. All this tended to show the actual value of the goods at the time of the dissolution of the attachment, and their depreciation in value while detained from Wilmarth under the attachment'proceedings.
It appears satisfactorily to us that the set-off of $36, pleaded and proved by the corporation, has been received by the corporation through its attorney; therefore it is not entitled to have this amount deducted from the damages allowed.
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
Arn, J.:
This is an action by a tenant of city property to recover from his landlords $300 as the unearned portion of $450 rent paid in advance under a six months’ oral lease, which lease the tenant surrendered four months prior to its termination. Trial was had by the court, and after making findings of fact and conclusions of law, judgment was rendered for the defendant landlords, and plaintiff appealed.
Appellees were the owners of a house and lot in a residential section of Wichita and on August 15, 1947, the appellant, by an oral lease, became the tenant of appellees for a period of six months (August 15,1947, to February 15,1948), and paid in advance the sum of $450 which represented six months’ rent at $75 per month. Also on August 15, 1947, appellant moved in and took possession of the premises. During the latter part of September, 1947, appellant lost his employment in Wichita and found new employment in the state of Michigan, which necessitated moving his residence to that state. He thereupon requested that appellees return.to him the unused portion of the advance rent in the amount of $300. Appellees refused this request. Apparently the appellee landlords did at this time orally agree with appellant that he could sublet the premises to a third party by the name of Heyne, but a day or two later the appellees advised appellant that the Heynes were not acceptable as tenants and that appellees would not permit appellant to sublet the premises. On October 6, 1947, appellant moved out of the premises and on October 7,1947, he filed this action seeking to recover the advance rent he had paid for the period from October 15, 1947, to February 15, 1948. On November 12, 1947, appellees sold the premises in question to one Coleman who took possession of and occupied said premises as the owner thereof from November 12, 1947, to and beyond February 15, 1948, the expiration date of the oral lease.
Appellant contends: (1) He had a legal right to sublet the premises under the authority of Leslie v. Sherman, 157 Kan. 157, 139 P. 2d 133;
(2) There was a surrender of the oral lease by operation of law on October 6, 1947, and the landlords were obligated to refund rent paid in advance for the period from October 15, 1947, to February 15, 1948; and
(3) That in any event, the landlords must refund the rent received by them for the period from November 12,1947, to February 15, 1948, that being the period during which the premises were actually occupied by the new purchaser Coleman.
With respect to the merits of the case appellees contend:
(1) That payment of rent by the tenant six months in advance was voluntary; that it was advanced by the tenant at his own suggestion and not pursuant to the oral contract; and that such a voluntary payment is not recoverable; and
(2) That the right of a plaintiff to recover is as of the time the petition was filed, and when the petition in the instant case was filed on October 7, appellant had no right to recover.
A tenant for any term less than two years cannot sublet to another tenant unless the landlord consents thereto in writing. G. S. 1935, 67-511 provides:
“No tenant for a term not exceeding two years, or at will, or by sufferance, shall assign or transfer his term or interest or any part thereof to another without the written consent of the landlord or person holding under him.”
Appellant cites Leslie v. Sherman, supra, in support of his conten tion that he had a legal right to assign the remaining term of his oral lease in the instant case. However,.an examination of the cited case makes clear that it involved a lease for more than two years and therefore G. S. 1935, 67-511, was not controlling. The instant case is controlled by that statute, and a lease for six months, either oral or written, may not be assigned or transferred without the written consent of the landlord.
There is no merit to appellees’ argument that the six months’ rent was advanced voluntarily by the tenant and was not one of the considerations for the oral lease. The answer filed by the appellees alleges that the oral lease was made “for an agreed rental of $460 payable in advance.”
Appellant’s theory that there was a surrender of the premises by operation of law, particularly after the appellee landlords sold the premises on November 12, 1947, might be of greater force if this were an action concerning an attempt by the landlord to recover the stipulated rent from the tenant. But that is not this case. The trial court made findings of fact about which there is no disagreement, indicating that appellant voluntarily gave up possession of the rented premises, that appellees were left without a tenant and expended a substantial sum in travelling from their home in Oklahoma to Wichita to find another suitable tenant. When appellant voluntarily vacated the leased premises on October 6 and filed this action on October 7, he had no right as of that time to recover the unearned portion of the six months’ rent he had paid in advance. At that time it could not be determined whether or to what extent appellees would suffer damage by reason of appellant’s vacation of the premises and breach of his oral lease. Even though appellees were bound to make an effort to mitigate their damage, it could not be determined on October 7 whether or not they would do so. On October 7, 1947, the date this action was commenced, appellant had the right to possession of the premises and he had sustained no damage. Other than in some exceptional cases, a plaintiff’s right to recover, if any, is to be determined as of the time the action is commenced (Reynolds v. Thomas [Syl. ¶ 3], 28 Kan. 810; Robertson v. Howard [Syl. ¶ 1], 83 Kan. 453, 112 Pac. 162; Wamberg v. Hart [Syl. ¶ 1], 121 Kan. 218, 246 Pac. 1010; see, also, annotation in 125 A. L. R. 612). Appellant’s action was commenced when he filed his petition herein on October 7, 1947, and since he had no right of action against the appellees on that date, his action must fail.
We have not overlooked appellees’ arguments that this appeal should be dismissed because appellant made no objections to the findings of fact made by the trial court and filed no motion for a new trial. However, the basis of this appeal is that the judgment rendered by the trial court is not as a matter of law warranted by the findings made herein. That proposition raises a question of law and does not require a review of the evidence, nor a review of the record for trial errors. A motion for new trial was not necessary to raise the single question of law as to whether the facts as found by the trial court require a judgment in favor of one party over the other.
We have, therefore, considered the appeal upon its merits, and being unable to find any error requiring a reversal, the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
This appeal is from an order of the district court of Montgomery County, Kansas, overruling the appellant’s motion for relief under provisions of K. S. A. 60-1507. In this opinion, the appellant will be designated as petitioner, or Call.
The petitioner was charged, jointly with three other persons, on five counts of issuing worthless checks of over $50.00 each, contrary to the provisions of G. S. 1949, 21-554 (now K. S. A. 21-554). He entered pleas of guilty to all five charges and was sentenced on each charge to from one (1) to five (5) years in the penitentiary, the sentences to run concurrently. At his arraignment and at the time sentence was pronounced, petitioner was represented by appointed counsel, Ray A. Neale.
Sometime after his incarceration in the penitentiary, Call addressed a letter to the district judge asking that it be considered as a motion to vacate the sentence and judgment and the court, upon receiving the same, treated it as a motion filed under K. S. A. 60-1507. In his letter, the petitioner contended: First, that he was not represented by counsel during the arraignment; second, that he was not represented by counsel when he was called into the county attorney’s office to make and sign a statement pertaining to the charges of which he was accused; third, that he was not advised of Rule 56, allowing appeal in a matter such as this; and fourth, that his court-appointed counsel was negligent, ineffective and incompetent for not having advised him of his right to take more time for the preparation of the defense.
The trial court held no evidentiary hearing but found that the petitioner had raised no factual questions or issues requiring his presence or requiring appointment of counsel. The court further found that the records and files in the case disclosed that the sentence was valid, and thereupon overruled the motion. ■
Thereafter, Call addressed a second letter to Judge Grant requesting that it be treated as a notice of appeal and asking for appointment of counsel. This letter, which is long and argumentative, appears to have been drafted with the purpose of controverting the specific findings made by the trial court. It does, however, substantially cover the same points set out in Call’s first letter, which we shall hereafter refer to as a motion to vacate.
We shall consider the points raised by the motion in the order heretofore listed. The first claim, that the petitioner was not represented during his arraignment, rests on the following allegations: that prior to appointment of counsel, the trial court read the charges and asked if Call had anything to say on his behalf; that Call did make a statement on his own behalf; that the court also advised Call that he might, if he wished, question the arresting officer pertaining to the arrest; that Call did question the officer after he took the stand under oath; and that it was after these proceedings had been completed that counsel was appointed.
The record does not substantiate these allegations. Not only does the journal entry fail to reflect such proceedings, but the transcribed record of what transpired prior to and during the arraignment reveals that only the reading of the information took place prior to the appointment of counsel. Thus, the record itself refutes the petitioner s first claim.
Assuming, however, that the record did bear out the petitioner’s version, we are aware of no fundamental right which would have been abridged. The petitioner does not allege that he was asked to, or that he did, enter any pleas prior to the appointment of counsel. Neither does he assert that he made any statement which was used against him or which resulted in prejudice to him.
Even if, as he has alleged, the petitioner did question the arresting officer without counsel, we fail to comprehend how this fact would vitiate the sentence. Conceding, for the sake of argument, that irregularities in the arrest might have been developed under questioning of an attorney, the sentence itself would not be void by reason thereof. It is commonly, if not universally, held that jurisdiction of a court to try a person accused of crime, or to accept his plea of guilty, is not divested by the fact that his arrest was irregular or unlawful. (State v. Cook, 194 Kan. 495, 399 P. 2d 835; State v. Wharton, 194 Kan. 694, 401 P. 2d 906.)
Turning to the second point raised, the bare-bone allegation that the petitioner was not represented by counsel when called to the office of the county attorney to make and sign a statement does not suggest, of itself, any denial of a constitutional right. In the first place, whatever the statement may have been which was elicited from Call—and we are not informed of its contents—it was not introduced or used against him in this case. Call entered a plea of guilty. Consequently, whether the statement would or would not have been admissible in evidence, were it offered in evidence at a trial, is entirely irrelevant.
In the second place, the petitioner does not allege that the statement was involuntarily made. Neither does he allege that, before making the statement, he was not informed of his right to counsel or of his right to remain silent. In the absence of such allegations, we are entitled to assume that the petitioner was fully advised by the county attorney as to his constitutional rights. The law presumes that a public officer will perform his duty in faithful observance of the law. (Wright v. Federal Reserve Life Ins. Co., 131 Kan. 601, 605, 293 Pac. 945; State v. Emory, 193 Kan. 52, 55, 391 P. 2d 1013.)
This court in Powers v. State, 194 Kan. 820, 402 P. 2d 328, recently considered the right of an accused to appointed counsel at the preliminary stage of an investigation into a crime, and we there said:
“. . . the Federal Supreme Court has never said one accused of crime is an incompetent person and entitled to counsel as such at every stage in a criminal proceeding.
“No case is cited which states or suggests that counsel must be provided at the investigation stage, or preliminary hearing stage, of a criminal case in Kansas, where the defendant has not requested counsel, has been informed of his rights to counsel, and makes an intelligent waiver, as the appellant did in the case presently before the court.” (p. 824.)
See also State v. King, 194 Kan. 629, 632, 400 P. 2d 975, and State v. Stubbs, 195 Kan. 396, 407 P. 2d 215.
As to the third point, the petitioner has not alleged that he was deprived of his right to appeal from the sentences imposed against him on his pleas of guilty but only that he was not apprised of Rule 56, which, in substance, provides for appointment of counsel to conduct an appeal upon request of an indigent accused.
While this ground is contained in petitioner s motion, it is not argued or even mentioned in his brief and may, therefore, be considered as having been abandoned. Even were the ground not abandoned, it is difficult to comprehend why the sentence should be voided merely because the petitioner was not aware of an appellate right when he pleaded guilty. Surely, he does not seriously contend that his guilty pleas were entered because he did not know of his right to appointed appellate counsel. This would be a patently absurd proposition.
We are not here confronted with the question of what effect ignorance of Rule 56 would have on a defendant’s right to appeal. The petitioner’s contention, as clearly set forth in his motion, is that his sentence should be vacated because he was not advised of the rule. This is manifestly an untenable position.
The final claim set forth in the petitioner’s motion, i. e., that appointed counsel was negligent, ineffective and incompetent is bottomed solely on the assertion that counsel entered pleas of guilty on Call’s behalf without having advised him of his “rights to take more time for the preparation of the defense.” In effect, we think this charge is equivalent to a contention that Call was denied the effective assistance of legal counsel because of the shortness of the time allowed him to consult with the attorney appointed for him.
The petitioner further urges that whether he was adequately represented by competent counsel can be determined only upon an evidentiary hearing. Before we can intelligently assess the merits of such a premise, as related to the facts of this case, we must refer to record. Before doing so, however, it will not be amiss to repeat what this court has stated before; that while the law requires loyal and faithful representation on the part of counsel for an accused, either employed or court appointed, it does not guarantee the assistance of the most brilliant and experienced counsel. (Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147; State v. Calhoun, 194 Kan. 378, 399 P. 2d 886.)
Searching the record itself, we find that this petitioner first appeared before the district court in the company of three individuals with whom he was jointly accused of committing five crimes. The single information charging the offenses was read to all accused by the judge, who then explained to the quartet the nature of the offenses charged and the penalties provided upon conviction. The court then asked if there was any question “you would like to ask about the matter,” to which this petitioner is shown to have answered “No sir.”
The right to counsel was thereupon explained to the four accused malefactors, at the conclusion of which the court appointed Ray Neale to act as attorney and asked Neale to talk to them. Thereafter, but on the same day, Mr. Neale reported back to the court that there might be a conflict of interest between the accused and recommended that separate counsel be provided. This recommendation was adopted by the trial judge, who thereupon appointed other attorneys to represent Call’s three codefendants, while Neale continued to represent Mr. Call. The journal entry recites that the cause was continued to allow Call an opportunity to confer with his attorney.
The transcript of. the proceedings had when Call was personally arraigned, as well as the journal entry, reflects that thereafter, and on the same day, the petitioner appeared with counsel and that he personally entered a separate plea of guilty to each of the five charges. This recitation refutes the claim that the petitioner’s pleas were entered by counsel. The transcript also reveals that when, at the allocution, the petitioner was asked if there was any reason why sentence should not be pronounced, he answered “No.” The record nowhere indicates that the petitioner requested the court for more time, nor is there any suggestion in petitioner s motion that such a request was made of counsel. Indeed, it is somewhat difficult to perceive how further delay would have been of benefit to the petitioner, considering his several pleas of guilty.
We believe the record negatives the imputation that Mr. Neale’s representation of his client was cursory or inattentive. The conclusion, which he formed after consulting with all four defendants, that their interests might be in conflict, and his recommendation that separate counsel be provided, is indicative both of diligence and of faithfulness to his obligation as a lawyer. After perusing the record, we believe there can be little doubt that Mr. Neale did have opportunity to confer alone with his client, and that the latter was fully informed as to the nature of the charges made against him and the penalties therefor. In testing the quality of Neale’s representation, we deem it of some significance that all five sentences involving checks amounting to over $600.00 were made to run concurrently—and this in the face of additional outstanding checks totaling some $3,000.00.
The adequacy of services performed by an attorney on behalf of a client must be gauged by the totality of his representation, not by fragmentary segments analyzed in isolated cells. Viewed in this context, neither the efforts expended by Mr. Neale on behalf of his client nor the results which were achieved can be termed unimpressive.
We have held in State v. Burnett, 194 Kan. 645, 400 P. 2d 971, that the right to an evidentiary hearing in proceedings brought under K. S. A. 60-1507 does not extend to those instances where the claims advanced are trivial, frivolous or insubstantial. In Webb v. State, 195 Kan. 728, 408 P. 2d 662, we further hold that a sentencing court is vested with discretion in ascertaining whether a claim made under the foregoing statute is substantial before granting an evidentiary hearing thereon and requiring the petitioner’s presence.
Viewing the present record as a whole, we cannot say that the trial court abused its discretion when it determined that the contentions placed before it by the petitioner did not merit an evidentiary hearing in the petitioner’s presence, but that they could be resolved by reference to the files and records of the case itself.
Much of the petitioner s brief is devoted to the proposition that his pleas were induced by coercion, threats and promises and, consequently, were not freely and voluntarily made. This contention was never presented to the trial court. In fact, the petitioner concedes in his brief that this issue was not mentioned in his motion to set aside the judgment and vacate the sentence. We are therefore in no position to pass upon the question. This court will not consider, on appeal, issues which have not been presented to the trial court. (Hardcastle v. Hardcastle, 131 Kan. 319, 327, 291 Pac. 757; Green v. Kensinger, 193 Kan. 33, 38, 392 P. 2d 122; State v. Talbert, 195 Kan. 149, 152, 402 P. 2d 810, certiorari denied, 382 U. S. 868, 15 L. Ed. 2d 107, 86 S. Ct. 143.)
Our consideration of the record, and of the authorities herein cited, leads us to the conclusion that error was not committed by the trial court. Its judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Fatzeb, J.:
The petitioner is presently confined in the Kansas State Penitentiary for a term of one to five years pursuant to a plea of guilty to an attempted felonious assault imposed by the district court of Franklin County, on February 13, 1964. On February 17, 1965, the petitioner filed a petition pursuant to K. S. A. 60-1507, to vacate and set aside that sentence, which was denied by the district court without a hearing on the ground that the petition, files and records of the case conclusively showed the petitioner was entitled to no relief. The petitioner appealed, and Mr. Ralph A. Skoog, a member of the Franklin County Bar, was appointed to assist him in the preparation and presentation of his appeal in this court.
The petitioner was arrested on a warrant charging him with breaking jail and committing a felonious assault. A preliminary examination was had and at the conclusion of the state’s evidence, the petitioner was bound over to the district court to stand trial on both charges. An information was subsequently filed in the district court charging him with one count of jailbreak and one count of felonious assault.
On February 5, 1964, Myron S. Steere, a member of the Franklin County Bar, was appointed to represent the petitioner in the district court. On February 13, 1964, the petitioner appeared with his attorney, Mr. Steere. The state dismissed the first count of the information charging jailbreak, and the petitioner entered a plea of guilty to the amended information charging him with one count of attempted felonious assault. The petitioner was sentenced to confinement in the Kansas State Penitentiary for the term heretofore indicated.
The petition alleged numerous grounds as to why the sentence should be vacated and set aside. The district court, after carefully considering each of the claimed violations of the petitioner’s rights, found that the petitioner was entitled to no relief and the petition was summarily denied without requiring the production of the petitioner.
In this appeal, the petitioner claims error on the part of the district court in failing to set aside the sentence because of each of the grounds alleged and, in addition, in failing to hold an evidentiary hearing in the presence of the petitioner. Whether the district court erred in not granting a plenary hearing without petitioner’s presence depends on the nature and veracity of the grounds alleged.
The petitioner first complains that he did not have counsel at his preliminary examination. This court has repeatedly held that an indigent defendant has no constitutional right to have an examining magistrate furnish him with counsel at his preliminary examination. Cases on this point are becoming too numerous for exhaustive citation, but see tire well-annotated opinion of Tarr v. State, 194 Kan. 798, 402 P. 2d 309, and for later cases see Huston v. State, 195 Kan. 140, 403 P. 2d 122; State v. Talbert, 195 Kan. 149, 402 P. 2d 810; State v. Atkins, 195 Kan. 182, 403 P. 2d 262, and Portis v. State, 195 Kan. 313, 403 P. 2d 959.
The petitioner next complains of delay in his arraignment. He was arrested on December 31, 1963, and brought before a magistrate January 2, 1964, some 36 hours later. It will be noted that the day following the arrest was January 1st, a legal holiday. Also, under the well-established rule in this jurisdiction, any claimed irregularities preceding or pertaining to a preliminary examination are deemed to have been waived where a defendant, represented
by counsel, enters a voluntary plea of guilty in the district court. (State v. Wharton, 194 Kan. 694, 401 P. 2d 906; Portis v. State, supra.)
The petitioner states that in direct contravention of K. S. A. 62-611, he was not granted a preliminary examination within 10 days following his arrest. The district court found:
“This contention is negated by the fact that the Preliminary Hearing was held on January 7, 1964, only 7 days after his (defendant’s) arrest." Emphasis supplied.)
The contention is without merit.
The petitioner alleged in the district court that mental coercion took place in that his attorney stated the county attorney would press -for a higher penalty if he continued to fight the case. He here contends that his plea of guilty was not freely and voluntarily made by reason of the fact that the county attorney used undue coercion by threatening to invoke the Habitual Criminal Act. (K. S. A. 21-107a.) After the petitioner entered his plea of guilty, the following colloquy occurred:
“The Court: And this, Mr. Fields, is what you wish to do is enter a plea of guilty?
“Mr. Fields: Yes, sir.
“The Court: Of attempting to commit felonious, assault?
“Mr. Fields: Yes, sir.
“The Court: An attempt to commit felonious assault, as your attorney has stated?
“Mr. Fields: Yes, sir.
“The Court: You understand that that is a felony?
“Mr. Fields: Yes, sir.
The district court concluded:
“The fact that the movent considered the alternatives, including the possibility of a sentence under 21-107a if movent’s prior record of convictions would justify the same, and entered a plea of guilty after advising with counsel, would not vitiate his plea of guilty and the resulting judgment of guilty to a lesser included offense of one of two counts originally charged.”
The conclusion is correct. In passing, we observe that had petitioner’s attorney failed to advise him of a possibility of sentence under the Habitual Criminal Act, the petitioner would have added such failure as an additional ground in his petition.
The petitioner further alleged that his lawyer was incompetent and failed to advise him of the mandatory requirements of G. S. 1961 Supp., 62-1304 (K. S. A. 62-1304), and did nothing in his defense. The conclusion of the district court disposes of the contention; it found:
“In (f) movent contends his lawyer was incompetent and failed to advise him of the mandatory requirements of K. S. A. 62-1304. Under question 11 (f) of his motion he states the evidence on which he intends to rely to prove this contention is ‘G. S. 62-1304, 1961, Kansas, Supplement/ Suppose movent relies also on his own statements. Rule 121 provides as follows:
“(g) Burden of Proof. The movant has the burden of establishing his grounds for relief by a preponderance of the evidence. The uncorroborated statements of the movant shall be insufficient to sustain the burden of proof.
“The attorney appointed for defendant in accordance with K. S. A. 62-1304 has been practicing law in this district for over twenty years. He served as County Attorney from 1947 to 1951 and was again elected to that office in the last election and since January 11, 1965, has again been serving the people of Franklin County and the State of Kansas in that capacity. Such experience would indicate ample qualifications. Furthermore, the constitution does not guarantee the most brilliant counsel. State v. Woods, 179 Kan. 601, 603.”
Nothing more need be added in answer to this contention, however, we note that the petitioner was originally charged with one count of jailbreak and a second count of felonious assault. Following the appointment of counsel, the district court deferred arraignment of the petitioner some eight days, until February 13, 1964. We assume that as a result of Mr. Steere’s representation of the petitioner, he conferred with the then county attorney and was instrumental in securing the dismissal of the count of jailbreak charged in the information and obtained the prosecutor’s permission for the petitioner to enter a plea of guilty to the lesser included offense of attempted felonious assault. Moreover, the petitioner was not sentenced under the Kansas Habitual Criminal Act. There is absolutely nothing to sustain the charge of inadequate representation of counsel.
The petitioner lastly contends that the co-defendants confessed to their part of the alleged crime without advice of counsel and that those wrongfully obtained confessions were used to coerce him to plead guilty. On this issue, the district court concluded:
“The movent contends that statements were elicited from all co-defendants without the benefit of counsel and were later used as a mental coercion to convict him and further introduced as evidence against him, contrary to Escobedo vs. Illinois, 375 US 902. (No trial was necessary. The movent entered a plea of guilty to a lesser included offense. The testimony of two co-defendants was used in the Preliminary Hearing.)”
The petitioner cannot complain of statements which were not used as evidence against him in the district court. See, Call v. State, 195 Kan. 688, 408 P. 2d 668.
After a careful examination of the record we are compelled to conclude the allegations of the petition and the files and records of the original prosecution conclusively show that the petitioner is not entitled to any relief. Therefore, the district court properly overruled the petition without an evidentiary hearing in the presence of the petitioner. In State v. Burnett, 194 Kan. 645, 400 P. 2d 971, this court held:
“Where a proceeding is brought under the provisions of K. S. A. 60-1507 and the files and records of the case conclusively show that the prisoner, or movant, is not entitled to relief, it is not required that a formal plenary hearing be had, or that counsel be appointed for the movant, or that the prisoner be produced for a hearing.” (Syl. ¶1.)
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The opinion of the court was delivered by
VALENTINE, J.:
This was an action brought in the district court of Lyon county by R. R. McCandliss, as administrator of the estate of James St. Clair Allen, deceased, against the Atchison, Topeka & Santa Fé Railroad Company, to recover for the benefit of the next of kin of the deceased, damages for injuries alleged to have been caused by the wrongful act of the defendant. The petition alleges in substance, that' on April 24,1882, plaintiff’s intestate was in the employment of the defendant as a common laborer, engaged in repairing the track of what is known as the “ McPherson Branch.” And while in such employment and in the line of his duties, and while being transported upon a flat car of a construction train to the' place of his work, and upon arriving near that place, the train stopped, and the foreman of the work ordered the employés to get off the train to resume their labors; that the car upon which the deceased was situated ivas then standing upon a bridge, and he was obliged to walk a long distance over the flat cars so as to get to a place where he could get off the train in safety; “and while so getting off, and while he was in the line and faithful discharge of his duty as such laborer, and without any fault on his part, the said train of cars, without any warning given, was, through the gross negligence, carelessness, wrongful act and omission of the said defendant and its servants and agents, suddenly, violently and rapidly started, propelled and jerked forward, throwing plaintiff’s intestate down between two cars, and drawing one car over him, crashing one of his legs and otherwise injuring him,” thereby causing his death. The defendant’s answer was a general denial, and a statement that the injuries to the plaintiff’s intestate were caused by his own negligence. The case was tried before the court aud a jury, and the jury found a general verdict in favor of the plaintiff and against the defendant, and assessed the damages at $2,000; and the jury also made the following special findings, in answer to the following special questions, presented to them by the court at the request of the defendant, to wit:
“1. "What was the age of Allen at the time he was killed? A. Forty-two years.
“ 2. Iiow much a month was Allen earning at the time of his death? A. $36.40.
“ 3. How much a month was Allen at the time of his death and prior thereto contributing to the support of his family? A.- Don’t know.
“4. At the time of Allen’s death and prior thereto, how much a month was he contributing to the support of the other members of his family outside of himself? A. Don’t know.
“ 5. Deducting that portion of Allen’s wages at the time of his death and prior thereto, which went to the use of himself, •or for his personal benefit, how much of said wages went to the support of his wife and children ? A. Don’t know.
“ 6. Did not Allen meet his death by falling between the ends of two flat cars which were coupled together? A. Yes.
“7. If the jury answer the last question in the affirmative, they may state what part of Allen’s body or person the car wheels ran over. A. Right leg.
“ 8. How many car wheels passed over Allen’s person, or any part of him? A. One.
“ 9. What car wheels passed over any portion of Allen’s person? A. Front wheel of front truck.
“10. Did both of the wheels on the south side of the front truck of the car from which Allen fell pass over his person or any part of him? A. No.
“11. If the jury answer the last question in the negative, they may state which of the two wheels on the south side of the front truck passed over any portion of Allen’s person. A. Front wheel.
“ 12. What was the distance from the west side of the west or front wheel on the front truck of the car Allen fell from, which was on the south side, to the east side of the rear wheel of such front truck? A. Seven feet one inch.
“ 13. What was the distance between the end of the flat car from which Allen attempted to step, at the time of his death, to the end of the other car upon which he was attempting to step, with the slack taken out between the two cars, and what was the distance between the two cars without the slack being taken out? A. Two feet one inch, and two feet ten inches.
“ 14. What was the width of the flat car upon which Allen was standing at the time he met his death? A. Nine feet.
“ 15. How near the center, in reference to its breadth, was Allen, on the car on which he was standing at the time he attempted to make the step which resulted in his falling? A. Midway between brake staff and south side of car.
“ 16. How far apart were the rails of the track where Allen Avas killed? A. Four feet eight and one-half inches.
“17. Did not Allen, at the time of his death, fall between the ends of two flat cars? A. Yes.
“18. Had not the train upon which Allen was at the time of his death, started to move prior to the time Allen attempted to make the step, in the attempt to make which he fell? A. Evidence conflicts, and we cannot answer.
“19. Was not the train moving upon which Allen was at the very time when he attempted to make the step, in the attempt to make which he fell between the cars? A. Yes.
“ 20. Is it not a fact that before Allen reached the car off from which he fell, that that car and the balance of the train was moving in the direction in which Allen was walking? A. Evidence conflicts, and we cannot answer.”
The defendant thereupon moved the court to render judgment in its favor and against the plaintiff upon the special findings of the jury, which motion the court overruled, and then rendered judgment in favor of the plaintiff and against the defendant for the amount of the damages assessed by the jury, and for costs. The defendant then brought the case to this court, and by its petition in error asks that this court shall order that judgment be rendered upon the special findings of the jury in its favor; and whether this court shall so order, or not, is the only question presented to this court.
The ground upon which it is claimed that judgment should be rendered in favor of the plaintiff in error, defendant below, and against the defendant in error, plaintiff below, is the fact that the jury did not answer the 18th and 20th special questions presented to them for their consideration. No objection was made at the time to this failure on the part of the jury to answer these two questions. The plaintiff in error, however, now claims that the jury, by failing to answer these two questions, in effect found against the plaintiff below; found that the train had already started, and was in motion before the plaintiff’s intestate attempted to make the last aud final step which resulted in his death; and that he had ample notice from the movement of such train of the dangerous character of the attempt to make such step. It seems to us, however, that the logic from the jury’s failure to answer these questions is against the plaintiff in error, and not in its favor. Upon the authority of the case of Morrow v. Comm’rs of Saline Co., 21 Kas. 484, 504, it would seem to follow that the failure of the jury to answer these questions, would in effect be a finding that the facts concerning which they were asked to find did not exist, or were not proved. In other words, it would seem to follow that it was not proved that the train had been put in motion or was moving prior to the time when the plaintiff’s intestate attempted to step from the car on which he was walking to the car in front of it; and by the 19th finding of the jury and their other findings and their general verdict, the jury in effect found that the train was then started with a sudden jerk forward, which caused the plaintiff’s intestate to step between the two cars and to fall between them and to be so injured as to cause his death.
The plaintiff in error claims that the plaintiff below was guilty of contributory negligence. Now the burden of proving such negligence, if it existed, rested upon the defendant below; and the burden of obtaining a finding showing such negligence also rested upon the defendant below. But the general verdict of the jury and their special findings are against the theory or claim that the defendant was guilty of contributory negligence; and it must be so held, unless it is shown by. the jury’s failure to answer the 18th and 20th special ques tions, that the plaintiff’s intestate attempted to make the fatal step after the train had started and while it was dangerously in motion. Bat as the burden of showing this rested upon the defendant below, the failure of the jury to answer the 3 8th and 20th special questions is in effect the same as a finding-that the train was not dangerously in motion at the time when the plaintiff’s intestate made such final step. And, indeed,, such failure is equivalent to findings that the train was not in motion at all at that time; but while it must be held that upon the question of contributory negligence on the part of the plaintiff’s intestate, the failure of the jury to answer the 18th and 20th special questions must be construed against the defendant, yet it is claimed by the defendant’s counsel that such failure was in effect a finding that the defendant was not guilty of negligence on its part; and upon this subject counsel forth e defendant — plaintiff in error — make a very ingenious, and plausible argument. Their argument is substantially as. follows: It devolved upon the plaintiff below to show negligence on the part of the defendant. The defendant was not negligent unless the train was moved without warning and without notice to the plaintiff’s intestate. If the train was-in motion while the plaintiff’s intestate was walking over the car from which he fell, he had sufficient notice and warning-that the train was in motion; indeed, he had actual knowledge of' that fact. Hence, in order to show negligence on the part of the defendant, it devolved upon the plaintiff to show that the train was not in motion prior to making such final step, and then that it started for the first time, and from a stationary position, and thereby caused the injury complained of. And it is claimed that the jury’s failure to answer these questions is in effect a finding by the jury that there was not sufficient evidence to show that the train was not in motion prior to the attempt by the plaintiff’s intestate to make such final step; or, in other words, that there was not sufficient evidence to show that the train was stationary up to that time;. and therefore it is claimed that no case of negligence is made-out against the defendant.
On tbe other hand, the defendant in error, plaintiff below, answers to this argument of the plaintiff in error, defendant below, by saying that he, the plaintiff below, introduced evidence showing that it was the rule of the defendant railroad company before starting an engine or train to always ring a bell as a signal that the engine or train was about to be started; that no such signal or warning was given in the present case; that the train was not put in motion, or moving, until the plaintiff’s intestate attempted to take the step which resulted in his injury; that the engineer was drunk at that time; that he then started the train with a sudden jerk from a stationary position, which caused the injury; that the general verdict of the jury was in favor of the plaintiff, which was in effect a finding in his favor and against the defendant upon all these matters, unless contradicted and overturned by some express special finding; and therefore it is claimed by the defendant in error, plaintiff below, that under such circumstances it devolved upon the defendant below to see that such special finding was made; but as no such special finding was made, the failure of the jury to make the same operates against the defendant below and not against the plaintiff below. There is also much plausibility in this answer of the defendant in error, plaintiff below. A general verdict is seldom overturned by inference; and as the failure to ring the bell or to give the usual signal or warning when starting a train is evidence prima Jade of negligence, a prima faeie case of negligence was in the first instance made out against the defendant below. But, after all, are not these special questions eighteen and twenty immaterial? "Would it have made any difference even if the jury had answered them in the affirmative? The questions were not put to the jury in such a manner as to require them to find that the train was put in dangerous motion, or was moving at a dangerous rate of speed, prior to the time when the plaintiff’s intestate made the final step. The questions, in order to be material, should have been so framed that an .affirmative answer to them would show that the train was moving at a dangerous rate of speed, and one that would make it dangerous for any person to step from one of the cars to another; but these were not so framed. These questions might have been answered in the affirmative, and still the train might have been moving very slowly, and only at the rate of one rod or one mile an hour.
Affirmative answers would not have shown that the train was moving at a dangerous rate of speed, or at a velocity that would have been a warning to the plaintiff’s intestate not to attempt to make the step from one car to the other. For the purposes of this case, we may assume that the train was moving at a slow rate, scarcely perceptible, (and many of the witnesses testified that it was not moving at all,) and that when the plaintiff’s intestate attempted to step from one car to the other it was then put in such quick and rapid motion, and by such a sudden jerk forward, as to cause the plaintiff’s intestate to step between the two cars instead of upon the one in front of him, and to fall between them and to be injured as he was. It must also be remembered that in this case the foreman of the work had ordered the plaintiff’s intestate, as well as others, to get off the train, and that the plaintiffs intestate was simply carrying out that order by attempting to get upon a car from which he could alight from the train with safety. And in such a case the plaintiff’s intestate had a right to presume that the defendant or its servants would not render it dangerous or unsafe for him to take the only means to get off the train which seemed to be open to him. Walking over a train of flat cars while the same are in motion, or even stepping from one of such cars to another while the train is in motion, is not negligence per se, as all the cars in such case are moving at the same rate of speed; and as the person walking over them is carried along with them and partakes of the same motion, there is usually but very little danger in walking over them or in stepping from one car to another. But even stepping from a train of cars in motion to a stationary platform, or to the stationary ground, which is more dangerous, is not always culpably dangerous and is not negligence per se. (G. H. & S. A. Rly. Co. v. Smith, 59 Tex. 406; Doss v. M. K. & T. Rld. Co., 59 Mo. 27; Filer v. N. Y. C. Rld. Co., 49 N. Y. 47; Ga. Rld. & B. Co. v. McCurdy, 45 Ga. 288; Pa. Rld. Co. v. Kilgore, 32 Pa. St. 292.) The same may be said with reference to getting on a train while it is in motion. (Swigert v. H. & St. J. Rld. Co., 75 Mo. 475; Eppendorf v. B. C. & N. Rld. Co., 69 N. Y. 195.)
The question of negligence in such cases is usually a question of fact for the jury, although sometimes and under some •circumstances it may be a question of law for the court.
We do not think the court below erred in ovei’ruling the ■defendant’s motion for judgment in its favor on the special findings of the jury; nor do we think that the court below ■erred in rendering judgment in favor of the plaintiff and against the defendant for the amount of the damages assessed by the jury, and for costs; and therefore the judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
HoktoN, C. J.:
On April 4, 1879, the defendant shipped from Pawnee Rock, in this state, to the plaintiffs, who are commission merchants at Chicago, Illinois, one car-load of broom corn, to be sold on account of the defendant. On April 12,1879, plaintiffs received notice from the Chicago, Burlington & Quincy railroad company of the arrival of the car-load of broom corn at Chicago, Illinois, consigned to them, and on the 23d of the same month received notice to remove the corn from the warehouse of the company. On the 24th and 25th days of the same month, at the instance of the plaintiffs, A. D. Ferry & Co. caused the broom corn to be hauled to their own warehouse in the city of Chicago; the last load of the broom corn was delivered and stored in the warehouse late in the .day of the 25th. Shortly afterward, a fire broke out in the warehouse, which consumed and destroyed all of the broom corn. Prior to the destruction of the broom corn by fire, the plaintiffs had advanced thereon to the defendant $100; had paid the railroad company for freight upon the broom corn $96, and for hauling the same to the warehouse the sum of $3.40. This action was brought by the plaintiffs to recover from the defendant these sums, aggregating $199.40. No defense to the action was made before the justice of the peace, but upon appeal, the defendant set up a counterclaim for $560, alleging that the plaintiffs were bound, by the usage of commission merchants, to insure the broom corn, and having failed so to do, were liable in damages for their negligence.
It is urged that as the action was originally brought before a justice of the peace, who had jurisdiction to render judgment for $300 only, that the district court had no jurisdiction to pass upon the merits of the counterclaim, .amounting to $560. Wagstaff v. Challiss, 31 Kas. 212, is cited as decisive. That case does not control. There, Challiss moved to strike out the set-offs because they were beyond the jurisdiction of a justice of the peace, and therefore not triable in the district court. The court sustained the motion. Here, the answer was filed with the consent of all the parties, and the plaintiffs and the defendant voluntarily appeared and proceeded to trial. No objection was made to the counterclaim, and the plaintiffs cannot now be permitted to say that the trial court had no jurisdiction. It acquired jurisdiction of the person by the appearance of the parties, and had, by virtue of its general powers,-jurisdiction of the subject-matter involved. (Shuster v. Finan, 19 Kas. 114; Miller v. Bogart, 19 id. 117.)
It is next urged that the judgment is not sustained by the evidence. In support of this, counsel say the defendant “ utterly failed to prove that according to general custom, insurance should have been taken out for the benefit of the consignor.” Counsel has evidently overlooked some of the testimony. Albert D. Ferry, of the firm of A. D. Ferry & Co., of Chicago, Ill., was a witness on the part of the plaintiffs, and he testified, among other things, that “he knew it was the rule or custom in Chicago to insure consigned merchandise for the protection of the consignor.” The defendant also introduced evidence tending to prove this custom or usage.
It is also urged that the court committed error in refusing to give the following instruction asked for by the plaintiffs: “ That in case the broom corn was placed in the store-house so late in the day, on April 25th, that insurance could not be effected on that day, the consignee is entitled to a reasonable time, after storage, to effect the insurance on the broom corn.” Under the evidence, this instruction would have been misleading. If it was the duty of the plaintiffs to take out insurance upon the broom corn, as the evidence fully established, they had ample time to do so between the arrival of the corn at Chicago and the time of its destruction by fire. There was no necessity for them to delay until April 25th, to effect the insurance.
Finally, it is urged that the court committed error in receiving incompetent evidence. It is said that none of the witnesses for the defendant showed themselves competent to testify as to the general custom among commission merchants of Chicago, Ill., to insure goods and merchandise consigned to them for sale. Before the witnesses were permitted to testify concerning this custom or usage, they were asked if they were acquainted with the custom or usage in Chicago, concerning the matter, and all of them answered, they were. Whether they became acquainted with this general custom as commission merchants or as shippers, is immaterial. If they had actual knowledge thereof from dealing with such commission merchants, as they testified they did have, their evidence was competent. (Griffin v. Rice, 1 Hilton, 184; Adams v. Peters, 2 Car. & Kir. [61 E. C. L.] 722.)
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
HoiiTON, C. J.:
The facts in this case are as follows: On March 27,1865, Elisha Mayfield recovered a judgment against John M. Hall in the district court of Linn county for $317.95, and to satisfy the same, obtained an order for the sheriff to sell the following attached property: the southwest quarter of section 35, in township 20, range 22, in said Linn county; subsequently an order of sale was issued to the sheriff of Linn county, and on August 28, 1865, the premises were sold at sheriff’s sale to Almira Mayfield, for $302.25; on September 28,1865, the sale was confirmed by the district court of Linn county, and the sheriff was directed to execute a deed of the premises to the purchaser thereof; on January 8, 1866, one D. F. Park, then deputy sheriff, executed to the purchaser a deed, but this deed nowhere recites who was the sheriff, and is signed and acknowledged by D. F. Park, deputy sheriff; on February 2, 1870, John M. Hall commenced an action in Linn county, against Almira Mayfield, to set aside the deed executed by D. F. Park, deputy sheriff, to her, alleging in his petition that the deed operated as a cloud upon his title to the land, and also alleged therein “that said pretended deed from said Park to said defendant is without authority, and vests in said defendant no title to or interest in said land.” In that action, an affidavit was filed for publication, alleging that the defendant was a non-resident of the state of Kansas; thereupon, service was made upon her by publication. On November 30, 1870, John M. Hall obtained judgment against her that the said deed of conveyance from D. F. Park to her was void as to the land described therein.
Almira Mayfield married a Mr. Mullen in 1867, and as Almira Mullen conveyed the land in controversy to Elisha Mayfield; Elisha Mayfield conveyed the land to John Young; and John Young conveyed the same to James P. Robinson, the plaintiff; Robinson took possession of the land in the spring of 1882. Before that time there were no improvements on the land; at that time he inclosed it with a fence — the whole quarter being fenced together; the fence consisted of two wires, with posts two rods apart. On May 22,1882, Robinson brought his action against John M. Hall to set aside the judgment of November 30, 1870, rendered in the action of Hall v. Mayfield, and to quiet his title to the land in controversy. The petition alleged, among other things, “that at the time of filing the petition in the action of John M. Hall v. Almira Mayfield, the latter was a citizen of and resident in the county of Linn and state of Kansas; that no service of summons was made upon her in the action; that no summons was issued in the action; that the affidavit for publication was, when made, false so far as it stated that Almira Mayfield was a non-resident of the state of Kansas, and that service of summons could not be made upon her within the state of Kansas.” The petition, also alleged that at the time of the commencement of the action, Almira Mayfield resided in and was at her residence in the county of Linn and state of Kansas, and continued to reside and remain in said county of Linn and state of Kansas for more than one year after the commencement thereof.
Upon the trial, the plaintiff offered in evidence the deed of January 8, .1866, executed by D. F. Park, deputy sheriff of Linn county, to Almira Mayfield. The defendant objected to the introduction of the deed, upon the ground, among others, that it was signed by the deputy sheriff, and not in the name of the principal. The court sustained the objection, and excluded the deed. This ruling is complained of. The law then in force in regard to the appointment of deputies by the sheriff, provided:
“Each sheriff may appoint such and so many deputies as he may think proper, for whose official acts and those of his under-sheriffs he shall be responsible,.and may revoke such appointments at his pleasure; and persons may also be deputed by such sheriff or under-sheriff, in writing, to do particular acts; and the sheriff and his sureties shall be responsible on his official bond for the default or misconduct of his under-sheriffs and deputies.” (Comp. Laws of 1862, ch. 52, §72; see also §§70, 73, 78, of said chapter.)
The appointment of general deputies conferred on them. the power to execute all of the ministerial duties of the sheriff, but the act of a deputy — to be valid — must be done in the name of the sheriff, the principal. Where a deed is executed by a deputy, it must be executed in the name of the sheriff. (Crocker on Sheriffs, §§ 17, 39, 547, pp. 13, 26, 263.) The court, therefore, committed no error in refusing to receive the deed of the deputy sheriff, as it was • not executed .in the name of the sheriff. The deputy sheriff might have signed and executed the same if he had done so in the name of his principal. (Lessee of Anderson v. Brown, 9 Ohio, 151; Lewes v. Thompson, 3 Cal. 266; Joyce v. Joyce, 5 id. 449; Rowley v. Howard, 23 id. 401; Simonds v. Catlin, 2 Caines, [N. Y.] 61; Paddock v. Cameron, 8 Cow. 212; Jordan v. Torry, 33 Tex. 680; Arnold v. Scott, 39 id. 378.)
The plaintiff then produced evidence showing that Almira Mullen, neé Almira Mayfield, moved from Bates county, Missouri, to Miami county, Kansas, in the fall of 1867, and lived in that county until May, 1870. She moved from Kansas, in May, 1870, to Noble county, Indiana, and then returned to Kansas in September, 1870. She moved back to Noble county, Indiana, in September, 1882, and has been living there ever since. The plaintiff further offered in evidence the journal of the district court of Linn county, of the date of March 27, 1865, containing the judgment in the case of Almira May-field v. John M. Hall, and also the journal entry of the district court of that county of September 28,1865, containing the confirmation of the sale of the land in controversy to Almira Mayfield. The plaintiff then offered in evidence the order of sale in the case of Elisha Mayfield v. John M. Hall, and the return thereon.. This was rejected, and of this complaint is also made.
We perceive no error in this ruling. The sale and order of confirmation did not pass the legal title. (Marshall v. Shepard, 23 Kas. 321.) The purchaser at the sheriff’s sale was not entitled to the possession of the premises, as a matter of right, until she obtained a deed. ' There was no actual possession of the premises taken under the deed of January 8, 1866. That deed was set aside — at least -an attempt was made to set it aside — on November 13,1874, in the action of John M. Hall v. Elmira Mayfield. Plaintiff did not take possession until the spring of 1882. Before that time, there were no improvements upon the land, and therefore, prior to that time, neither Almira Mayfield, nor anyone holding under her, was in the actual possession thereof. As the case is now presented, we are not called upon to give our opinion whether the judgment of Hall v. Mayfield was void, or voidable only, or to decide whether that judgment, even if valid, effected anything other than wiping out the sheriff’s deed of the date of January 8, 1866. If Almira Mullen, or any person holding under her, upon the confirmation of September 28,1865, shall apply for and obtain a sheriff’s deed, properly executed, an important question will arise as to the title of the premises in dispute.
There was no error in admitting the testimony of John M. Hall, N. Gr. Barter and others, as this evidence tended to prove that the statute was complied with as to constructive service upon the defendant in the case of Hall v. Mayfield.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by the defendant in error, plaintiff below, against the railway company, to recover the sum of $176, being the value of seven head of cattle alleged to have been wrongfully and* negligently killed by the railway company at the crossing of a public road. The jury found a verdict for the plaintiff below, and also returned special findings of fact. Among the special findings of fact were the following:
“Did the engineer of the train blow the whistle of the locomotive eighty rods west of the crossing where plaintiff’s cattle were struck, on the occasion of the injury? A. No.
“As soon as the engineer saw the cattle, did he apply the air brakes on his engine, and reverse the engine? A. No.
“ What is the shortest distance in which this engine could have been stopped at the speed it was going at the time of the injury? A. 350 to 375 feet.”
The evidence upon the question, whether the whistle was sounded eighty rods west of the crossing where the cattle were struck, was conflicting. The engineer testified, among other things, “As soon as he saw the stock, he immediately put on the air brakes and reversed the engine, and stopped in about 300 yards.” We do not find in the record any evidence conflicting with this. The engineer also testified, “ That the speed of the train was forty-five miles an hour; that he stopped the train in about 300 yards; that this was the quickest a train of that kind, going at the speed it was, could be stopped.” There was no testimony contradicting this statement, and no other witness testified within what space an engine could be stopped, going at the speed this engine was. The jury, therefore, not only disregarded the testimony of the engineer concerning the distance in which he might have stopped the engine, but made the finding that the engine could have been stopped in from 350 to 375 feet without any evidence whatever. This they had no right to do. As this finding, which was important as tending to establish negligence on the part of the railway company, was made without evidence, it affects all the findings, as it goes to show that the jury were determined to make the findings, regardless of the evidence, so as to sustain a general verdict against the railway company. It also affects the general verdict, because if important special findings of fact are made by a jury without the support of evidence, it cannot be said that their general verdict, upon conflicting evidence, is entitled to much confidence.
Counsel for plaintiff below suggest, however, that the jury “had the right to apply their own common sense and knowledge to the matter,” and therefore they had the right to say, of their own knowledge, “That the engine could have been stopped within 350 or 375 feet.” It was decided in Missouri River Railroad Co. v. Richards, 8 Kas. 101, that “the jury are always in a case, to use the knowledge and experience they are supposed to possess in common with the generality of mankind in making up a verdict;” and it was further decided in Anthony v. Stinson, 4 Kas. 211, that “the jury cannot be required by the court to accept, as matter of law, the conclusions of witnesses.” These decisions are not controlling in this case. It is not within the general knowledge of persons, in what space an engine or train can be stopped, going at the speed of forty-five miles an hour, and equipped with the appliances as the one operated' by the company at the time of the accident. To determine how long it takes to stop an engine or train requires experience in the running of trains, and in checking their speed, or opportunities on the part of a person giving opinion thereof to speak as an expert. (Railway Co. v. Stewart, 30 Kas. 226.) This was not a subject upon which the jury could use their own judgment, and if any one of the jury had any particular knowledge on the subject, he ought to have been sworn and examined as a witness. (Railroad Co. v. Van Steinberg, 17 Mich. 105; Rex v. Rosser, 7 C. & P. 803 [648]—32 E. C. L. 670; Railroad Co. v. Richards, supra.)
The complaint is not that the jury disregarded the opinion and statement of the engineer in the finding within what space an engine could be stopped, but it is that the jury not only ignored such testimony, but made their finding without any evidence to support it.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This proceeding was instituted in the district court of Atchison county, to enforce the individual liability of S. R. Howell, the plaintiff in error, as a stockholder in the Atchison Industrial Exposition and Agricultural Fair Association, a corporation organized under the laws of the state of Kansas, with its principal place of business at the city of Atchison. S. R. Howell subscribed to the capital stock of the corporation, and owned twenty shares thereof, amounting to one hundred dollars. The corporation became insolvent. A. Mianglesdorf & Co., the defendants in error, recovered a judgment against the corporation, upon which an execution was issued and a return thereof made, that no property or effects of the corporation could be found upon which to levy the execution. The defendants in error began this proceeding by a motion filed in the district court, and obtained service of the notice of the motion upon S. R. Howell, at Chicago, Illinois; He appeared specially, and moved the court to set aside the service of the notice and motion, for the reason that the same was not served within the jurisdiction of the court, but was served upon him in the state of Illinois, of which state he was and is a resident. This motion was overruled by the court, and an order made awarding an execution against 8. R. Howell as a stockholder in the corporation to the amount of the stock owned by him in the corporation. This action of the court is complained of by plaintiff in error.
The question to be decided arises under a statute which reads as follows: ■
“Sec. 32. If any execution shall have been issued against the property or effects of a corporation, except a railway or a religious or charitable corporation, and there cannot be found any property whereon to levy such execution, then execution may be issued against any of the stockholders, to an extent equal in amount to the amount of stock by him or her owned, together with any amount unpaid thereon; but no execution shall issue against any stockholder, except upon an order of the court in which the action, suit or other proceeding shall have been brought or instituted, made upon motion in open court, after reasonable notice in writing to the person or persons sought to be charged; and upon such motion, such court may order execution to issue accordingly; or the plaintiff in the execution may proceed by action to charge the stockholders with the amount of his judgment.” (Comp. Laws 1879, eh. 23, §32.)
It will be observed that two remedies for enforcing the individual liability of stockholders are prescribed in the statute above quoted. In the one case, the judgment creditor of an insolvent corporation may proceed by a summary action on a motion in the court where the judgment was rendered against the corporation; in the other, by an ordinary action to be instituted wherever personal j urisdictioh of the stockholders can be acquired. Before the summary proceeding by motion can be maintained, notice to the stockholder must be given, in order that he may appear and make such defense as can be made and as is necessary to protect his interest. The statute does not define the form of the notice nor the time nor place of its service, but only prescribes that a “reasonable notice in writing” shall be given to the person sought to be charged. Whether the notice given in this case is sufficient, and what constitutes a reasonable notice under this statute, must depend very largely upon the nature of the proceeding based upon the notice. While the proceeding is summary in its character, and its maintenance contingent upon the insolvency of the corporation, or upon the rendition of a judgment against the corporation and the return of an execution thereon of nulla bona, yet we cannot regard it as an interlocutory or auxiliary proceeding in the action against the corporation. In the action against the corporation no notice of its pendency is given to the stockholder; he is not directly interested in the action, as his liability is only secondary to the corporation, and exists alone by reason of this statutory provision, and of that provision of the constitution in pursuance of which the statute is enacted. (Const., art. 12, §2.) His liability to the creditors of the corporation is in the nature of a guaranty; the action or proceeding to enforce the same does not accrue until the execution upon the judgment against the principal is returned unsatisfied. We think that the proceeding against the stockholder, whatever remedy may be employed, is an independent one. It will readily be conceded if the proceeding is distinct and indepepdent, and the issues between the parties are personal, and if the consequence of the proceeding is in the nature of a judgment in personam, that the notice'or process of the court upon which the jurisdiction depends cannot be served beyond the jurisdiction of the state. Before either of the remedies pointed out by the statute can be employed by the creditors, the stockholder must be brought into court and have his day there. He is not concluded by the judgment against the corporation; that judgment is at most only prima fade evidence of his liability. (Grund v. Tucker, 5 Kas. 70.) When he is brought into court in this proceeding, he may interpose several defenses. Among other things, he may show that he is not a stockholder; or if he had subscribed to the capital stock of the company, it had been forfeited or released, or it had been sold and transferred and the liability sought to be enforced against him had been assumed and succeeded to by another; or he may show that the judgment is void. He may also set up as a defense, that he is discharged by having already paid the amount of his individual liability to other creditors of the corporation.
We think he may contest his liability in this proceeding to the same extent, and may interpose the same defenses, that he could have availed himself of if the creditor had chosen the second remedy prescribed by the statute, and proceeded in an ordinary action to obtain a judgment. The issues which may be framed in the proceeding are personal ones, and while the determination of the court in this proceeding is denominated an order, it is as binding and conclusive upon the stockholder as any judgment could be. (Thompson on the Liability of Stockholders, § 337.) The execution awarded in this proceeding is general, and goes to the same extent as one issued upon a judgment in personam. Under this execution any property of the stockholder not exempt, found within the limits of the state, may be seized and sold. While the order of the court has not the same scope and operation as some other judgments, (Hentig v. James, 22 Kas. 326,) yet in respect to its enforcement by general execution it is substantially a personal judgment. It has been said:
“Where the object of the action is to obtain a judgment against the defendant upon which an execution may issue, to be levied generally of his goods and chattels, or of his property, personal, real, and mixed, it is necessary at common law that there should be a personal notice, citation, summons or subpena, or that the defendant should voluntarily appear to the action. In cases of this character, such notice or appearance is indispensable to the jurisdiction of the court.” (Wade on the Law of Notice, § 1137.)
The notice here required is to advise the defendant of the pendency of the proceeding, and bring him. into court. It therefore serves the same purpose as original process, and is necessary to give the court jurisdiction of the defendant. It is immaterial whether the original process is called a summons, a subpena, or a notice. Whatever its name, it must be treated as a process of the court, and in cases of this character its proper service is essential to the jurisdiction of the court.
An examination of the statutory provisions relating to the service of original process will show that in all cases and proceedings where jurisdiction of the person of the defendant is necessary, service of such process can only be made within the boundaries of the state. It is true, that there are cases where service of process is authorized to be made upon persons beyond the limits of the state, (Civil Code, § 76,) but it will be seen that these are cases in the nature of actions in rem, where the jurisdiction depends upon the possession of the property seized, or the'control of the thing which is the subject of controversy, and not upon the person of the defendant, and the judgment to be rendered in such cases can operate on nothing except the property or thing which gives the court jurisdiction, nor can a general execution be issued thereon.
Again, that provision of the code relating to the service of notice of motions, we think is applicable here. It reads as follows: “The service of a notice shall be made as is required by law for the service of a summons; and when served by an officer, he shall be entitled to like fees.” (Civil Code, § 536.) These considerations determine us to hold that the notice in this proceeding must be served in the same manner as a sum-inons in a personal action is served, and that such notice cannot go or be served beyond the jurisdiction of the state. Rorrowing the language of Mr. Justice VALENTINE, “A state may have complete power and jurisdiction over all persons and things within its boundaries, but it cannot reach beyond its boundaries and into other jurisdictions, and there affect the status of persons or things. Neither the laws of a state, nor the jurisdiction thereof, nor any of its judicial processes, can reach beyond' its boundaries, or have any extra-territorial force or operation.” (Amsbaugh v. Exchange Bank of Maquoketa, ante, p. 105; Rorer on Inter-State Law, 22; Freeman on Judgments, §564; Coleman’s Appeal, 75 Pa. St. 441; Wells on Jurisdiction of Courts, § 113.)
This ruling does not deprive a creditor of the insolvent corporation of a remedy against the stockholder residing in another state, and upon whom service cannot be obtained here. While the liability is statutory, it is one which arises upon the contract of subscription to the capital stock of the corporation, and an action to enforce the same is transitory, and may be brought in any court of general jurisdiction in' the state where personal service can be made upon the stockholder. (Flash v. Conn, 111 U. S. 371; same case, 3 Am. & Eng. Corporation Cases, 28; Dennick v. Rld. Co., 103 U. S. 11; McDonough v. Phelps, 15 How. Pr. 372; Seymour v. Sturgess, 26 N. Y. 134.)
We think the ruling of the court upon the motion was erroneous. Its order and judgment must be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
VALENTINE, J.:
An objection is made to a hearing of this case upon its merits, for the reason that the case has not been properly brought to this court; and from an inspection of the record brought to this court, such objection would seem to be good. The record upon which the case has been brought to this court does not pmrport to be a case-made, nor a transcript of the full proceedings of the court below, but only a transcript of a portion of such proceedings. It does not contain the pleadings in the case, nor any statement as to what the pleadings or the issues were! It does not contain the evidence in the case, nor any statement as to what the evidence was. It shows that the case was tried before the court, without a jury, but it does not show what the issues were which were thus tried. It shows that the court made certain findings of fact and CQnclusions of law, but it does not show that either party desired the court to do so. Nor does it show whether these findings responded to the issues, or not. With such a record before us, we do not think that it would be our duty to attempt to decide the case upon its merits.
It must be remembered that this is not a case made for the supreme court, where both parties saw the case before it was settled; where one party made it, and the other party was given ample opportunity to make suggestions of amendments thereto; and where the case was afterward settled and signed by the' presiding judge, with an opportunity to both parties to be present; but it is simply a transcript of a portion of the proceedings of the court below, and of such portion only as the' plaintiffs in error bave chosen to bring to this court. "While this court will be inclined to look favorably upon all condensations and abridgments in cases specially made for the supreme court and settled and signed by the trial judge, we think we should not look favorably upon transcripts of only a portion of the proceedings, selected solely by the party bringing the case to this court; and entertaining these opinions as we do, we think this case should be dismissed from this court, and it is accordingly so ordered.
—The case of E. L. Martin and C. G. Perrin (copartners as E. L. Martin & Co.) v. J. R. Hall is in precisely the same condition as the case of Weaver & Bill v. Hall, and therefore the same order will be made in both cases.
All the Justices concurring. | [
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The opinion of the court was delivered by
JOHNSTON, J.:
This was an action of replevin, brought by G. W. Penn, to recover from the sheriff of Wilson county the possession of a small stock of goods, which the plaintiff claimed to have purchased from Howard Bros., of Fredonia, Kansas. The sheriff justified under orders of attachment that had been sued out by the creditors of Howard Bros. The sale and transfer of the goods were made about November 9, 1883. For a few months prior to the sale, Howard Bros, had been engaged in the grocery and restaurant business, and their goods, a portion of which is in controversy here, had not been paid for. Some four or five weeks after the sale of the goods to the plaintiff, several of their creditors brought suits, and caused the goods to be attached as the property of Howard Bros., claiming that the sale to Penn was invalid, and that it was made with the fraudulent purpose of defeating the creditors of Howard Bros. The cause was tried by a jury, and the verdict and judgment were in favor of the plaintiff, G. W. Penn, upholding the validity of the sale and his title and right of possession to the goods. Upon the trial it seems to have been conceded by all that so far as the Howard Bros, were concerned the sale was made with the fraudulent design of defeating their creditors in the collection of their claims. But it is claimed by the vendee, that the purchase was made by him in good faith, without any knowledge or notice of the fraudulent purpose of the vendors. It appears that the plaintiff took immediate possession of the goods under his purchase, and that the consideration claimed to have been paid for them was fair and reasonable. The only question therefore in the court below was, whether the plaintiff was a bona fide purchaser in good faith of the property in controversy.
The counsel for plaintiff in error contend, and argue at some length, that the testimony shows that the vendee had knowledge of the fraudulent intent of the vendors. Upon this question there was some conflict in the testimony, but the jury by their general verdict, and also in answer to special questions, have found in favor of the good faith of Penn, and that he was not chargeable with knowledge of the fraudulent purpose which actuated Howai’d Bros, in making the sale. The determination of this fact was within the province of the jury, and their finding puts an end to all inquiry thereon in this court. In such a case, as has been so often stated, we cannot weigh conflicting evidence or disturb a verdict, even though the testimony seems to preponderate against it. It is but just to say, however, that after a careful reading of the testimony, which is voluminous, it appears to us to abundantly justify the verdict that has been rendered.
Some objections are made to the rulings of the court upon the instructions refused and given. These objections are somewhat general and desultory in their nature. The defendant prepared a series of six instructions, none of which were given. But the court in its general charge, which was carefully prepared, embodied most of the propositions requested by the defendant. The two remaining ones we think were improper in the case, and rightly refused. In one, the court was asked to direct the jury in effect, that the mere knowledge of Penn that Howard Bros, were indebted, was of itself sufficient to charge him with guilty knowledge of the intention of Howard Bros, to defraud their creditors. Of course, actual knowledge by Penn of the fraudulent purpose of the Howard Bros, was not necessary in order to vitiate the sale. A “ knowledge of facts sufficient to excite the suspicions of a prudent man and put him upon inquiry is, as a general proposition, equivalent to a knowledge of the ultimate fact,” (Phillips v. Reitz, 16 Kas. 396;) and this principle of law the trial court in its charge to the jury clearly recognized and stated. But the mere knowledge of the purchaser that the seller is in debt, without regard to the amount, or his ability to pay the same, will not make void a sale, although the purpose of the vendor was to defraud his creditors, unless the vendee was a participant in the fraud. (Hughes v. Monty, 24 Iowa, 499; Atwood v. Impson, 20 N. J. Eq. 151; Beals v. Gurnsey, 8 Johns. 446; Durkee v. Chambers, 57 Mo. 575; Sisson v. Roth, 30 Conn. 15; Loeschigh v. Bridge, 42 N. Y. 421; Taylor v. Eubanks, 3 A. K. Marsh. 239; Bump on Fraudulent Conveyances, 201, 278, and cases there cited.)
The sixth instruction requested by the defendant below, was in part unobjectionable; but the latter portion of it assumed as facts, matters that were in controversy between the parties, .and about which the evidence was conflicting, as that the sale was made in great haste; that it was “a lumping trade;” and that there was much haste in placing upon record the bill of sale and other instruments evidencing the agreement of the parties. It was therefore improper. The court, in its instructions to the jury, cannot assume as a fact that about which the testimony is conflicting. (Wilson v. Fuller, 9 Kas. 176.)
Of the instructions given, complaint is made that the court failed to call the attention of the jury and advise them of the .significance and effect of certain circumstances sought to be proved by the plaintiff in error, and which he claimed tended to show fraud on the part of the vendee. We do not think there is any just ground of complaint in this respect, as it appears to us that the instructions given, fairly cover the issues and evidence of the case. In one of the instructions which the court gave, the theory upon which the plaintiff in error tried his case, and the circumstances upon which he relied to establish that the vendee knew, or had reason to know, of the fraud, were stated, and the jury were then informed that if they found that such was the case, the sale would be void, and the plaintiff could not recover, although he may have paid the full value of the goods.
A further objection is made to the direction given by the court, “that fraud is never presumed, but must be established by evidence.” Of the correctness of this proposition, or of its application to the case, there should be no question; but counsel seem to argue that the burden of proof was upon the plaintiff, to show that he did not participate in the fraud now conceded to have been intended by the Howard Bros. Fraud is not so lightly imputed. While certain circumstances will give rise to an inference of fraud, yet the law never presumes it. It devolves on him who alleges fraud to show the same by satisfactory proof; and the burden rested upon the creditors of Howard Bros., who assailed the good faith of Penn in this transaction, to show, by either direct or circumstantial evidence, that the transaction was fraudulent as to Penn. As the trial court stated:
“The law presumes, in the absence of evidence to the contrary, that the business transactions of every man are done in good faith and for an honest purpose, and any one who alleges that such acts are done in bad faith, or for a dishonest and fraudulent purpose, takes upon himself the business of showing the same.”
It is further contended that the motion for a new trial should have been granted on the ground of newly-discovered evidence. The new testimony is cumulative in character; besides, we think it is not sufficiently material to have justified the granting of a new trial. It related to the question of Penn’s good faith in the transaction about which so much testimony was offered. Two witnesses, one of whom testified in the trial of the cause, state that in conversations which they had with Penn at the time the negotiations were pending between him and the How- ards, Penn was informed that the Howards were indebted. The new testimony, which it is said will be given by the one who was a witness upon the trial, is a part of a conversation which he there testified to, and is in substance the same as the testimony which he then gave. The only material effect of his testimony, as well as that of the other witness, is to contradict the testimony given by Penn upon the trial; and looking at the whole evidence of the case, we cannot think that the new testimony would be likely to change the result already arrived at.
It is finally contended that some remarks made by counsel for plaintiff when closing the argument to the jury reflected upon the conduct of the opposite counsel, and must' have influenced the jury against the defendant. It was the duty of the counsel to have called the attention of the court to the objectionable remarks at the time they were made, rather than after the trial. But in the abstract of these remarks which we find in the record, it does not appear that any wrong was intended to be charged against counsel for defendant; the reference, it seems, was to the witness Howard, whose conduct as depicted in the testimony justified severe criticism and condemnation.
We find no error in the record, and therefore affirm the judgment of the district court.
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The opinion of the court was delivered by
Robb, J.:
Defendant, upon his own plea of guilty, was convicted of the offenses of burglary in the second degree and grand larceny. He was sentenced to confinement in the penitentiary.
He has appealed, and the only question presented concerns the fact he was not represented by counsel at his preliminary examination.
The record shows the following:
On November 14, 1963, in the county court of Wallace county a complaint was filed charging defendant in two counts—burglary in the second degree and grand larceny. On November 14 he was brought before the court. The state requested that his preliminary examination be continued. He agreed to it. On December 2 defendant was again brought before the court and was advised of his rights to employ counsel and to a sufficient opportunity in which to prepare his defense. He advised the court he was without money to employ counsel and stated that he waived his rights to a preliminary examination and agreed that he be bound over for trial on the charges against him. Notwithstanding his waiver of a preliminary examination the state, with the consent of the court, introduced the oral testimony of the sheriff which, we are told—and it is not disputed, consisted only of testimony concerning his investigation of the burglary and larceny and did not include any reference to any statements made by defendant during the course of the investigation. Defendant declined to cross-examine the witness. At the conclusion of the hearing defendant was bound over to the district court for trial.
On December 16, defendant was brought before the district court. Being an indigent person and without counsel, the court appointed James E. Taylor, an experienced and capable member of the local bar, to represent him. Mr. Taylor and defendant were given the time and opportunity to confer privately—which they did. Later, on the same day, counsel and defendant informed the court they were ready for further proceedings—whereupon they waived formal arraignment and defendant entered a plea of guilty to each of the charges. No reason being given why sentence should not be pronounced, defendant was sentenced to confinement in the penitentiary, the sentences to run concurrently.
On June 9, 1964, defendant mailed a “Notice of Appeal” to the district judge. This document was ordered filed and was, under the circumstances, considered as a valid notice of appeal by all parties. . Present counsel was appointed to represent defendant in his appeal, and he has filed an abstract and brief and appeared on oral argument of the appeal.
The sole specification of error is:
“Defendant was indigent and not represented by counsel at his preliminary hearing in the County Court of Wallace County, Kansas in violation of the Sixth Amendment to the Constitution as made obligatory upon the States by the Fourteenth Amendment.”
and so the only question is whether an indigent defendant has a constitutional right to have counsel appointed to represent him at a preliminary examination.
The question has been before this court many times—particularly within the past year or two—and it uniformly has been answered in the negative. There is nothing about the facts of this case to bring it outside the general rule. No useful purpose would result from discussing the matter further. It has been dealt with in many cases. See State v. Daegele, 193 Kan. 314, 393 P. 2d 978 (cert. den. 379 U. S. 981, 13 L. Ed. 2d 571, 85 S. Ct. 686), Tarr v. State, 194 Kan. 798, 402 P. 2d 309, Portis v. State, 195 Kan. 313, 403 P. 2d 959, and the many cases cited in those opinions.
The judgment is affirmed. | [
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The opinion of the court was delivered by
JohnstoN, J.:
Maria L. Schmidling brought an action in the district court of Lyon county against the city of Emporia, to recover for personal injuries resulting from a defective sidewalk on one of the streets within the corporate limits of that city. It appeal’s that on the 19th of July, 1883, as the plaintiff was traveling over the sidewalk on the east side of Merchants street, a loose board which formed a part of the walk was stepped upon by another person, one end of which tipped up and was thrown suddenly and violently against the plaintiff’s foot and ankle, bruising and spraining it badly. She alleged and claimed that the sidewalk had been out of repair for a considerable time prior to the accident, and that the city had knowingly and negligently permitted it to remain out of repair, and that by reason of its condition, and not through any fault of her own^ or negligence on the part of the person who stepped upon the loose board that was thrown against her, but only because of the negligence of the city, she was injured. For this injury, and for the expense incurred for physicians and nurses, as well as for loss of time, she asked damages. The cause was tried by a jury, and verdict and judgment were given in favor of the plaintiff for $1,000. The city, alleging error, brings the case here for review.
It is first complained that there was error in overruling the motion made by the counsel for the city to require the plaintiff to make her petition more definite and certain. Without reproducing the petition here, or entering upon a discussion of its allegations, we deem it only necessary to remark, that while it might with propriety have been more elaborate and precise in some respects, yet it was sufficiently full and explicit to fairly make known to the defendant the elements of the damages claimed by the plaintiff. An examination of the record satisfies us that the defendant was not prejudiced by the ruling upon this motion.
An exception was taken to the refusal of the court to charge the jury that “ if the walk in question was so dangerous as that its condition could be seen at a glance, then that of itself should have put the plaintiff upon her guard, and she cannot recover.” This instruction we think was rightly -refused. In the first place it is doubtful whether it was pertinent to the facts in the ease. It does not appear that the defect in the sidewalk was one which could be seen at a glance by the defendant. That the particular board which did the injury was unfastened and liable to be tipped up, was probably not apparent until it was stepped on by the passer-by. However, there is a more serious objection to the instruction; it expresses the idea that if the plaintiff undertook to pass over the sidewalk with the knowledge that it was defective or dangerous, then that of itself would constitute negligence which would defeat a recovery. This is not the law. Persons are not to be entirely debarred from the use of the streets because they may be out of repair. Frequently a street or sidewalk may be passed over and used with safety even though somewhat defective. Of course a person cannot heedlessly or recklessly walk into danger and hold the city liable for resulting injury. If danger exist, and it is known, ordinary prudence would require a greater vigilance and a care corresponding with the danger, to avoid injury. It has been said by this court that “the fact that a person attempts to travel on a street or sidewalk after he has notice that it is unsafe or out of repair, is not necessarily negligence.” (Corlelt v. City of Leavenworth, 27 Kas. 673; see also City of Osborne v. Hamilton, 29 id. 1; Osage City v. Brown, 27 id. 74.) If to the instruction asked, had been added the qualification, that if the plaintiff, after seeing the dangerous condition of the walk, failed to exercise that care and caution for her personal safety that a reasonable person would exercise under like circumstances, she cannot recover, it might properly have been given. But the court did not neglect to instruct the jury upon the subject of contributory negligence, and in regard to the duty required of those who used the sidewalks. In the general charge of the courts the jury were told that it is—
“The duty of those who travel upon sidewalks to use reasonable care and diligence to avoid injury, such as persons of ordinary care and diligence would under the same or similar circumstances; and in determining whether the plaintiff used such care and diligence at the time of the alleged injury, you will consider the nature of the alleged defect, whether visible, or not; the time of day, as to being light, or otherwise; the knowledge of the plaintiff with regard to its condition at and previous to the time of the alleged injury; and any other fact or circumstance disclosed by the evidence which may tend to show such alleged negligence, or the absence of it; and if you find from the evidence that the plaintiff was guilty of any negligence which directly contributed to the alleged injury, then the plaintiff cannot recover, and you will find for the defendant.”
Another instruction asked, the refusal of which is complained of, is as follows:
“The mere fact that after this accident occurred the city took up the walk in question, and in connection with other contiguous walks built a walk of other materials, cannot be considered as showing either knowledge or negligence on the part of the city prior to the accident.”
Inasmuch as the matter of the removal of the walk was before the jury, the instruction asked was a proper one. The fact that the walk was taken up by the city at that time, and another substituted therefor, was a circumstance which, in connection with other circumstances, might properly be considered by the jury as tending to show that the walk removed w as defective, but it is no evidence that the city authorities had knowledge that the walk was defective at or before the time of the accident. This testimony, however, was not offered by the plaintiff, nor relied upon by her as any evidence that the city authorities had knowledge prior to the accident that the walk was unsafe and unfit for public use. The fact came out only incidentally in the examination of the witnesses for the defendant, who explained that the walk was only changed in order to make a continuous walk of asphaltum along the entire block, and not because the portion in question was out of repair. Neither did the court adopt the theory, or intimate, that the removal of the walk after the accident occurred was any evidence upon which the city might be charged with knowledge that the walk was out of repair. On the other hand, the court in instructing the jury in what way the city became chargeable with negligence or knowledge, plainly referred to circumstances occurring before the accident, and directed them that they might infer that the city had knowledge of palpable defects which a reasonable degree of care and diligence would have discovered, and that any defect which, from its character, location or condition could not by reasonable care and diligence be discovered, must be brought to the actual notice of the city authorities before it will be liable for injuries caused thereby.
In view of the facts in the case, and the fullness of the instructions upon this subject, we cannot regard the failure of the court to comply with this request as other than harmless error, and not such a one as will justify us in reversing the judgment.
Counsel for the city criticise the instruction given by the court, as holding the city to a higher standard of duty than the law' requires. And they afgue that the effect of the instructions was, that the city is required to keep its sidewalks in an “ absolutely ” safe or perfect condition, and to hold it liable for all injuries resulting from a failure to put and keep them in such a condition. Certainly cities are not required to keep their sidewalks absolutely safe and intrinsically perfect. They are only held to construct and maintain them in a reasonably safe and suitable condition for their intended use, and for such travel as usually passes over them. They ought not and cannot be held liable for injuries resulting from defects that reasonable care and diligence on the part of the city authorities could not have discovered and remedied. In speaking of the liability of cities in cases of this character, this court has said:
“Accidents may happen, notwithstanding the utmost care. Does it warrant against all accidents? -We think not. . . . It must use reasonable care and diligence in making the walk strong and safe. The amount of care and diligence, to be reasonable, may vary with the circumstances of the case. More precaution may be needed where the walk is lifted twenty feet above the ground, than where it rests directly upon the dirt; but in all cases it must be, relative to the danger and risk, reasonable care and diligence.” (City of Atchison v. Jansen, 21 Kas. 575.)
While the court, in one of its instructions, made a somewhat inapt use of the word “ absolutely,” yet when the entire charge is read together, it is not, we think, fairly open to the interpretation placed upon it by counsel for the city. The court said that “a city is not required to have its sidewalks in an absolutely safe condition, but it is only required to use reasonable care and diligence to have them so.” In direct connection with the foregoing, the jury were told that, “it is the duty of every incorporated city to use reasonable care and diligence to have its sidewalks reasonably safe.” The same principle is reiterated in other portions of the charge; so that the court manifestly intended to rule, and the jury must have understood, that the city was only required to construct and maintain its sidewalks in such a manner as under all the circumstances will make them reasonably safe for public use.
Some other points are suggested, though not urged; but after a careful examination of the record, and the questions raised thereon by counsel for the city, we fail to find any error which would warrant us in reversing the judgment of the district court, and it will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On August 29, 1884, J. M. Limbocker,. as county attorney of Bourbon county, filed in the district court of that county an information against William Barnes, charging him with the violation of the provisions of chapter 128, Laws of 1881, commonly known as the prohibitory law. The same was verified by the county attorney upon information and belief, but J. T). Manlove further verified the information as true. ( The State v. Gleason, 32 Kas. 245.) At the September term of court for 1884, the case came on regm-larly for trial. The defendant, Barnes, plead not guilty. The jury found the defendant not guilty, and further found that the prosecution had been instituted without probable cause and from malicious motives by Manlove. The defend ant was discharged, and judgment entered against Manlove forthe costs of the prosecution. Subsequently, Manlove moved the court to set aside so much of the verdict as related to him, which motion the court overruled. From the ruling and judgment of the court, Manlove appeals.
The question is, as to Manlove’s liability for the costs. On the part of the prosecution, it is claimed that the following section of the statute is applicable:
“Whenever it shall appear to the court or jury trying the case that the prosecution has been instituted without probable cause and from malicious motives, the name of the prosecutor shall be ascertained and stated in the finding; and such prosecutor shall be adjudged to pay the costs, and may be committed to the county jail until the same are paid, or secured to be paid.” (Crim. Code, § 326.)
We do not think this section applies. The information was filed and verified by the county attorney under the provisions of § 12 of ch. 128, Laws of 1881. Section 12 of said chapter, among other things, provides:
“If the county attorney of any county shall be notified by any officer or other person of any violation of any of the provisions of this act, it shall be his duty forthwith to diligently inquire into the facts of such violation, and if there is reasonable ground for instituting a prosecution, it shall be the duty of such county attorney to file a complaint in writing before some court of competent jurisdiction, charging the suspected person of such offense, and shall verify such complaint by affidavit; but it shall be sufficient to state in such affidavit that he believes .the facts stated in such complaint to be true. . . If, in any prosecution begun by the county attorney under the provisions of this section, there shall be a failure to convict, the proper costs of such prosecution shall be paid by the county in which the prosecution was begun.”
In order to authorize the issuance of a warrant for the arrest of the defendant therein charged, the allegations and facts contained in the information or complaint were further verified by Manlove as being true. (The State v. Gleason, supra; The State v. Blackman, 32 Kas. 615.) The statute expressly provides that in prosecutions commenced under such circum stances, if there is a failure to convict, the costs shall be paid by the county. (Sec. 12, supra.) If any other construction were given to said § 12, a county attorney might ofteu be found liable for costs under the terms of § 326 of the criminal code, although he was attempting merely to faithfully perform his duty, as prescribed in said § 12.
The judgment of the district court rendered against the appellant will be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Fontron, J.:
This is an action to quiet the title to a section of land in Marshall county, known as the Drennan Ranch. The trial court adjudged the plaintiff, Harold H. Stump, and one of the defendants, John D. Finley, each to be the owner of an undivided one-half (3£) interest in the ranch, and quieted their titles accordingly. Stump and Finley, both, are appellees in this court and will be referred to, individually, by their surnames.
Two of the defendants, Mary Alice Drennan Flint and Helen Drennan Beckett, filed an answer to the plaintiff’s petition and contested the titles of both appellees in the court below. They alone have appealed from the trial court’s judgment and will be designated as appellants throughout this opinion.
Since Stump and Finley derive their titles by means of different conveyances, the validity of each title must be discussed and considered separately. We shall first direct our attention to the title asserted by Finley.
The Drennan Ranch was acquired in 1872 by John Drennan, a man of apparent foresight, industry and diligence, who fathered a family of ten children. Eventually, title to the ranch became vested in two of his brood; Alice, a maiden lady of some apparent business ability and acumen, and Edward, the youngest son, also single, who seemingly was overly protected by other members of the family. The appellee, John D. Finley, and the appellants, Mary Alice Drennan Flint and Helen Drennan Beckett, are third generation Drennans, being nephew and nieces respectively of Edward and Alice.
Alice Drennan died in 1954, leaving a will which is of controlling importance to Finley’s claim. The provisions of this document, which are pertinent to the present appeal, read as follows:
“First-. I give, devise and bequeath unto my brother Edward Drennan all my real estate and personal property of which I may be the owner at the time of my death, to be by him taken and held for his own use and disposal as he may deem right and proper, charging him only with my debts and expenses.
“Second-. It is my will that upon the decease of my said brother or upon my decease if I shall survive him, and the one-half interest which I own in Section Twenty-three (23), Township Four (4), Range Seven (7) in Marshall County, Kansas, has not been disposed of by him or me, then and in that event and subject to the rights secured to my brother hereby, I do give and devise the same in equal shares share and share alike to my nieces Mary Alice Drennan Flint and Helen Drennan Beckett.”
Alice’s will was duly probated and her estate administered. On June 6, 1955, a final decree was entered assigning Alice’s half interest in the ranch to Edward Drennan “subject to all of the conditions and provisions of said will.”
On October 24, 1955, after some preliminary conversations, Edward Drennan contracted to sell to John D. Finley, and his wife Eunice, the one-half interest in tire ranch acquired from Alice’s estate. The contract recited a consideration of Twenty Thousand Eight Hundred Dollars ($20,800.00), payable as follows: $2,800.00 on signing the agreement, and the remaining $18,000.00, which was to be secured by note and mortgage, to be paid over a twenty (20) year period, together with two percent (2%) interest on unpaid balances.
The appellants attack the validity of this sale on two grounds: First, that it was induced by fraud, undue influence, duress, or cheating on Finley’s part, and second, that it exceeded the limited power of disposal possessed by Edward under Alice’s will.
We may dispose of the first contention summarily. The trial court specifically found there was “no clear, satisfactory and convincing evidence of fraud or undue influence or duress or cheating in connection with the conveyance from Edward Drennan to John Finley.” On oral argument, appellants’ counsel conceded there was evidence to support these findings, and further consideration of the first contention is thereby precluded.
Supporting their second ground, the appellants urge that, under Alice’s will, Edward took only a life estate with qualified power of disposal, and they cite Pearson v. Orcutt, 106 Kan. 610, 189 Pac. 160, and Parsons v. Smith, Trustee, 190 Kan. 569, 376 P. 2d 899. We are inclined to agree with the appellants on this point and, indeed, Finley’s counsel, on oral argument, conceded that Edward was not empowered to dispose of Alice’s half interest in the ranch by gift.
The real controversy between Finley and his cousins, the appellants, is whether Edward’s conveyance exceeded his qualified power of disposal. The appellants argue that Edward’s power of disposition was limited under Alice’s will to his support and maintenance. If, by this, it is meant that Edward could convey the property only if he were destitute and without the necessities of life, we think the construction far too narrow.
The language of Alice’s will suggests no intention that Edward’s power be so circumscribed. Her words, in leaving Edward her property, are “to be by him taken and held for his own use and disposal as he may deem right and proper, charging him only with my debts and expenses.” (Emphasis supplied.) We believe Alice intended that Edward should be able to make any bona fide sale of the property left to him which would serve a purpose useful or beneficial to his interests.
The observations of this court in Pearson v. Orcutt, supra, are persuasive. In that case, the testator’s will was construed and held to give the widow a life estate in his property with power of disposal. In construing the language, “. . . with full power to sell and dispose of the same in any way that she may desire” (p. 614), the court had this to say:
“. . . His primary purpose was clearly to make provision for her maintenance, in the broadest sense of that term—for the use and disposition of the property for her interest and according to her judgment. She was at liberty to use it or its proceeds to meet the expenses of such manner of living as she might see fit to adopt, but this would not imply that she might give it away. (Blair v. Blair, 82 Kan. 464, 108 Pac. 827; Griffin v. Kitchen, 225 Mass. 311; Bevans v. Murray, 251 Ill. 603.) Doubtless she might have sold it in order to make an investment or embark in some other business than fanning— matters said in the Kansas case just cited to be beyond the scope of mere maintenance. . . .” (p. 615.)
We conclude that Edward’s power of disposal was not restricted to providing for himself the bare essentials of existence. It is our opinion that whatever sale Edward might in good faith conclude, the proceeds of which inured to his own benefit, would come within the ambit of his authority.
But the appellants contend that the transaction between Edward and Finley was not a bona fide sale, but a pretended or colorable sale only—that it was a mere sham. It is argued that Edward’s conveyance to Finley constituted only a gift of Alice’s half of the ranch. Specifically, it is urged that no consideration passed from Finley to Edward or that, at best, the consideration was inadequate. These contentions require further examination, not only of the sale documents, including the note and mortgage signed by Finley and his wife, but of other matters, as well.
As we approach the question, we recognize the duty which rests upon a life tenant, with power of disposal, to act honorably and in good conscience in exercising that power. In Windscheffel v. Wright, 187 Kan. 678, 360 P. 2d 178, 89 A. L. R. 2d 636, we held:
“A life tenant with power to sell real property devised to her for life with remainder to designated persons, is a trustee or quasi trustee and occupies a fiduciary relation to the remaindermen, and in the exercise of that power, she owes to them the highest duty to act honestly and in good faith by selling the property to a bona fide purchaser for the best price offered.” (Syl. f 3.)
The recited consideration of Twenty Thousand Eight Hundred Dollars ($20,800.00), appearing in both the contract and the warranty deed executed thereunder, may not, in our judgment, be regarded as inconsequential. Although the amount is a thousand dollars less than the appraised value shown in Alice’s estate, it is nonetheless a sizable and substantial sum, and to Edward, for reasons indicated by the record, it seemed reasonable.
Considerable emphasis is placed on circumstances surrounding the $2,800.00 down payment which Finley made by means of his check for $1,400.00 and a promissory note in like amount signed by himself and wife. The check was deposited in Edward’s bank account on October 31, 1955. The note, which had been delivered to Edward, was later returned to Finley bearing the following endorsement: “This note has been satisfied Edward Drennan Dec. 1, ’55.”
On December 8, 1955, two checks made payable to Finley for $1,000.00 and $300.00, respectively, are shown to have been charged to Edward’s bank account, and appellants would have us infer that they were given in repayment of Finley’s $1,400.00 check.
The appellants designate the entire transaction, in which they would include Edward’s two checks to Finley and the cancelled note, as a dishonest trick, but we doubt that it may thus be stigmatized. In two of his letters, penned after disagreement with Finley over a tenant, Edward indicates that Finley never did deliver the promissory note and the $1,400.00 check to him. The record itself, however, refutes such a claim. Edward and his nephew were on friendly terms until at least 1960. Finley’s testimony that he received the cancelled note and the two checks as gifts from Edward to help build a new home is quite believable. We are unable to infer, from anything in this record, any malign or preconceived plot on Finley’s part to avoid the down payment.
In conclusion, the appellants say that, under his agreement with Edward, Finley was enabled to pay for his half interest in the Drennan Ranch with Edward’s own money and, hence, that there was no consideration. This interpretation is drawn from the following provision in the sale agreement:
“The parties further agree that the $18,000.00 mortgage given by the second parties to the first party for the remainder of the purchase price shall be paid as follows:
“The entire rentals for each farm year will be collected and an account will be made between the parties by March 1 in each year. From the crop income, pasture rentals and other income of every nature from said real estate, the taxes will be paid and any insurance premiums will be paid. Any balance then remaining will be divided one-half (&) to Edward Drennan and one-half (K) to John D. Finley. The one-half (K) belonging to John D. Finley shall be retained by Edward Drennan and applied first to the payment of interest on all unpaid balances at the rate of two per cent (2%) per annum and any balance then remaining shall be applied on the principal debt. The first party gives to the second parties the privilege of paying additional sums on the unpaid balance at any interest payment date, which interest payment date shall be deemed to be March 1 in each year.”
This provision must be read in conjunction with the promissory note signed by the Finleys which reads as follows:
“Twenty (20) years after date we promise to pay to the order of Edward drennan Eighteen Thousand Dollars ($18,000.00) with interest at the rate of two per cent (2%) per annum until paid. Interest payable at Blue Rapids, Kansas. Interest payable semi-annually on the 24th day of October and April each year. Value received. The makers are given the privilege of paying on the principal of this note at any interest payment date in multiples of $100.00 and do now obligate themselves to make the following payments on the principal of this debt: The sum of $500.00 to be paid on the principal on the 24th day of October, 1956, and a like amount on the 24th day of October each year thereafter, with the remaining balance due and payable in full on October 24th, 1975.
“This note secured by a first real estate purchase money mortgage covering an undivided one-half (h) interest in Section twenty-three (23), Township four (4) south, Range seven (7) east, Marshall County, Kansas.
“Dated and signed this 24th day of October, 1955.”
Construed together, we think the note and contract provide a sensible plan of payment so far as Edward is concerned. The note obligates Finley and wife to pay $500.00 per year, plus interest, on the $18,000.00 indebtedness. These payments of principal and interest are due whether or not Finley’s share of the farm income is sufficient to make them. Edward is thus assured of a fixed minimum income each year. In addition, any excess of farm income over taxes, insurance, interest and annual payment must be applied to principal giving Edward even more for his needs in good years. This type of contract, in which income from property sold is applied to payment of interest and principal, is not uncommon and, we believe, may often serve a useful purpose. It does not appear to lack monetary consideration.
Edward has, in fact, received interest from Finley amounting to $1,946.80, and Finley’s note, since 1955, has been reduced to $11,-897.03. This balance is still due on the note and it has been judicially determined to be an asset of Edward’s estate, passing under Edward’s will to these appellants.
It is significant that these appellants successfully resisted an effort by Finley to establish an oral agreement with Edward which would have resulted in cancelling the note upon Edward’s death. By their insistence that Finley was bound on his note, the appellants may be said to have adopted an inconsistent position, but we are not disposed to predicate our decision on that basis. It is enough to say that Finley still owes substantially more than half the original purchase price of his half interest in the ranch.
We believe, moreover, that Edward received more than financial benefits from his agreement, for Finley assumed at least a portion of the burdens of management, including preparation of leases, accountings with the tenant, distribution of receipts, and handling other management details, both by phone and in person while visiting the ranch. It is safe to assume that Finley’s assistance in such matters was a source of relief and accommodation to a man of Edward’s background and age.
We find it unnecessary to discuss other matters in the record which tend to support our conclusion that a bona -fide sale was consummated. Nor need we comment extensively on the several letters in which Edward charged Finley with unfair dealing. Written after disagreements with Finley, they reflect no more than a change of heart on the part of a somewhat querulous old gentleman. Moreover, they are immaterial in view of the trial court’s findings negating fraud or unfair dealing.
The appellants raise a point of evidence. Over objection, Finley testified as to conversations between Edward and Edward’s counsel held on two occasions when Finley and Edward were at the attorney’s office in connection with the pending sale. Whether or not this testimony violated G. S. 1949, 60-2804, we believe its admission was not prejudicial. First, much of the conversation pertained to Finley’s claim against Edward’s estate, which the trial court denied, and second, the gist of the remaining conversations was established by other evidence, especially the sale documents. Under such circumstances, the admission of the challenged evidence, even if erroneoiis, would not constitute reversible error. (McCready v. Crane, 74 Kan. 710, 88 Pac. 748; Daniels v. Hummel, 108 Kan. 422, 195 Pac. 604; Kansas City v. Burns, 137 Kan. 905, 22 P. 2d 444.)
We hold that Edward’s conveyance to John D. Finley of the one-half interest in the Drennan Ranch, which he had inherited from Alice, was not in violation of his power of disposal under Alice’s will, but that it was a valid sale and vested title in the grantee.
We now proceed to the second phase of this lawsuit and consider the title asserted by Stump. Edward Drennan died December 30, 1961, leaving a will in which he directed his executor, Walter Youngquist, to sell the residue of his property, real and personal (except items specifically bequeathed), for the best price obtainable, and authorized said executor to execute and deliver the necessary title documents.
On June 25, 1962, Stump contracted with Youngquist, the executor, to buy Edward’s half interest in the Drennan Ranch for $30,-000.00 and, pursuant to that agreement, he received an executor’s deed dated July 16, 1962. This sale is attacked oh the ground that Youngquist acted in bad faith in making the sale, and that Stump* is chargeable with notice of Youngquist’s breach of fiduciary duty.
The appellants are correct in asserting that an executor acts in a. fiduciary capacity and is held to the utmost good faith in his transactions regarding the estate. (21 Am. Jur., Executors and Administrators, § 251, p. 515; Woodbury v. Schofield, 131 Kan. 432, 292 Pac. 802; Nelson v. Gossage, 152 Kan. 805, 107 P. 2d 682; In re Estate of Timken, 177 Kan. 545, 280 P. 2d 561.) The trial court, however, found that the executor acted in good faith and that the sale to Stump was bona fide. Under our oft-repeated rule, our quest thus becomes one to determine whether those findings are supported by substantial competent evidence. (1 Hatcher’s Kansas: Digest, rev. ed., Appeal. & Error, § 505, p. 205, § 507, p. 206; 2 West’s Kansas Digest, Appeal & Error, § 989, p. 589.)
The evidence was conflicting as to what Edward’s one-half interest in the ranch was worth. For estate purposes, it had been appraised at $33,200.00, and there was some additional evidence to support that value. On the other hand, there was testimony indicating a singular lack of interest on the part of prospective land buyers, including witnesses called by the appellants, in purchasing an individed interest in this land, and the record contains independent evidence that $30,000.00 was a fair price. It is worth noting that Youngquist reserved the growing wheat crop, valued at better than $1,800.00, and that he also saved a commission of from $1,000.00 to $1,500.00 by making the sale direct to Stump.
There is evidence that Youngquist talked to many people about selling the property, including Finley’s local attorney, from whom he got no response. It is true no inquiry was made of the appellants as to whether they might be interested in buying but, on the other hand, the appellants at no time prior to the sale expressed any interest in buying or made any offer of purchase. Although the appellants contend that Youngquist’s lawyer assured their counsel they would be advised before a sale of the land was made, this contention finds no support in the admitted evidence. The record does disclose rejection of a proffer of proof, by appellants, containing hearsay, but this is not even argued as error.
Further analysis of the evidence relating to Youngquist’s efforts to sell the land seem unnecessary, although we should add that Youngquist had refused Stump’s first offer of $25,000.00, and had obtained approval of the probate judge to accept Stump’s later offer of $30,000.00. We are constrained to hold that the court’s findings of good faith are sustained by the record.
Since we hold that the appellants have not sustained their charge of bad faith against the executor, allegations that Stump is chargeable with knowledge of bad faith on the part of Youngquist become moot. Stump cannot be said to have notice, imputed or otherwise, of bad faith which the court found did not exist. However, there is a connected aspect of the charge which we feel requires comment.
Stump’s notice is said to have been imputed to him by reason of his having employed the estate’s attorney to examine title to the land which Stump bought from the estate. In view of what we have heretofore said and held, it is unnecessary to enter into a discussion of when and under what circumstances knowledge of an attorney is imputed to his client, but those who are interested in the subject will find it treated in Hess v. Conway, 92 Kan. 787, 142 Pac. 253, cited by the appellants, as well as in 7 Am. Jur. 2d, Attorneys at Law, §§ 107-111, pp. 114-116.
While the attorney’s action in examining the title for Stump cannot be said to vitiate the sale in this case, we suggest that his representation of both vendor and vendee, under the circumstances shown, may not have been in the best tradition of our profession. Canon 6 of the American Bar Association Canons of Professional Ethics deals with the representation of adverse interests and we think it imperative, if the legal profession is to attain the public respect to which it legitimately aspires, that attorneys act with the greatest circumspection in the representation of multiple clients where there exists a possibility that their interests may conflict or be at cross purposes.
The case at hand provides an illuminating example of the embarrassment which may result from a lawyer’s failure to interpret strictly the admonition of Canon 6, even though representation may have been undertaken in the best of faith and no actual fraud may have been perpetrated on either client. The record here reveals that, as a result of his attorney’s examination, Stump required this action instituted to perfect title. Suit was then brought in Stump’s name by the estate, at estate expense and through the estate’s attorney, to satisfy title requirements made by tibe same lawyer acting for the purchaser. The possibility that conflicting interests might result from such dual representation should appear obvious.
It is to the attorney’s credit that he later withdrew from the case when the prospect developed that he might be needed as a witness, and that he then returned his fee to the estate. Such action on his part accorded with the import both of American Bar Association Canon 19 and of Opinion No. 9 of the Committee on Professional Ethics of the Bar Association of Kansas found on page 35 of the Handbook on Professional Ethics, recently published by our State Bar Association.
We have not overlooked the appellants’ reference to the doctrine of reconversion, stated in 19 Am. Jur., Equitable Conversion, § 30, pp. 23,24, as follows:
“It is a well-settled rule in equity that where a testator directs land to be sold and the proceeds thereof distributed among certain designated beneficiaries, such beneficiaries may elect, before the sale has taken place, to take the land instead of its proceeds. Where they have so elected and sufficiently manifested their election, the authority to sell the land cannot thereafter be exercised by the executor, but is extinguished. . . .” (Emphasis supplied.)
See also Schneider v. Schneider, 135 Kan. 734, 739, 12 P. 2d 834, where reconversion is mentioned.
It will be seen that the rule requires an election on the part of the beneficiaries. As to the manner and mode of election, it is said in 18 C. J. S., Conversion, § 53, p. 80:
“To effect a reconversion, the beneficiary should clearly and unequivocally express his intent to take the property in its original and unconverted form, as by positive declaration or conduct warranting inference of such intent.”
It is apparent to us that the rule has no application to the facts presented here. There is no evidence anywhere in the record that the appellants ever signified an intent, either orally or through ■correspondence, to take Edward’s half interest in the Drennan Ranch in its original form.
In terminating what has become a somewhat wordy opinion, we might say we have endeavored to treat all the salient points raised by a rather long record and discussed in the three supporting briefs. After carefully examining the evidence before us, and the authorities cited to us, we are forced to conclude that no error inheres in the judgment entered by the trial court, and that the same must be affirmed.
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The opinion of the court was delivered by
Fatzeb, J.:
This was an action to enjoin the state superintendent of public instruction from carrying out duties under the act known as the School Unification Law, enacted by the 1963 regular session of the legislature.
The 148 plaintiffs are school districts of various types located in many counties of the state. The plaintiffs challenged the constitutionality of Chapter 393 of the 1963 Laws of Kansas which is now K. S. A. 72-6734 et seq. The district court held this act to be constitutional and valid. The plaintiffs appealed to this court, and because the case involves a pressing public question, the court announced its decision at an early date so that the parties and the legislature were advised. (Tecumseh School District v. Throckmorton, 194 Kan. 519, 403 P. 2d 102.)
The statute questioned by appellants provides for reorganization of the school districts of the state. At the time of enactment, there were some 1843 public school districts of many different types but chiefly common school districts offering grades 1 to 8, high school districts offering grades 9 to 12, and city school districts offering grades 1 to 12. Each high school district overlays all or part of one or several common school districts. The act would cause all of the school territory of the state to be reorganized into unified school districts offering grades 1 to 12 and disorganizing the old districts.
Appellants primarily contend that the statute makes an unlawful delegation of legislative power to the state superintendent of public instruction. Other contentions will be noted later in this opinion. The gist of appellants’ main argument is that the act vested legislative power in the state superintendent to organize new public school districts without consent of local school officials or local voters; that the state superintendent need not act uniformly and may overrule the desire of voters expressed at elections on establishing new districts; that this is the exercise of legislative power and therefore in violation of Article 2, Section 1 of the Kansas Constitution.
The establishment or creation of school districts is a function which is legislative in character. This court has so held repeatedly. (State, ex rel., v. Storey, 144 Kan. 311, 58 P. 2d 1051; State, ex rel., v. Hines, 163 Kan. 300, 182 P. 2d 865; School District, Joint No. 71 v. Throckmorton, 189 Kan. 590, 370 P. 2d 89.) Moreover, school districts are purely creatures of the legislature and subject not only to its power to create but its power to modify or dissolve. (State, ex rel., v. French, 111 Kan. 820, 208 Pac. 664; State, ex rel., v. School District, 163 Kan. 650, 185 P. 2d 677.)
The enactment in question authorizes the state superintendent to establish unified school districts and disorganize other districts, either if an election has been held approving the establishment or if certain local school boards petition for the establishment. Such a petition may be submitted and acted upon even though electors have voiced disapproval. Appellee has conceded that this is a delegation of power of grave importance, and that it may be a function that is legislative in character. We hold that at least some of the powers delegated to the state superintendent of public instruction are legislative.
Appellants rely on State, ex rel., v. Hines, supra; School District Joint No. 71 v. Throckmorton, supra, and State, ex rel., v. Hardwick. 144 Kan. 3, 57 P. 2d 1231, in support of their position that the delegation made is unlawful. The difficulty with their position is that none of those cases involved a delegation of legislative power to the state superintendent of public instruction. The Hines and Throckmorton cases considered and disapproved delegation of legislative power to local boards for school planning. The Hardwick case concerned delegation of power to a county tribunal to prevent soil erosion. Neither of those cases passed upon the point now before the court, i. e., delegation to the state superintendent of public instruction of legislative power with respect to the establishment and disorganization of school districts.
The question before the court is not novel. In State, ex rel., v. Storey, supra, it was contended that the state superintendent of public instruction is an executive officer under our Constitution; that the legislature cannot confer legislative power upon an executive officer such as the state superintendent of public instruction. Mr. Justice Harvey, speaking for the court, said:
“. . . Forceful as this argument is, it overlooks article 6 of our constitution dealing specifically with education, the pertinent portions of which read:
“‘The legislature shall encourage the promotion of intellectual, moral, scientific and agricultural improvement by establishing a uniform system of common schools, and schools of a higher grade, embracing normal, preparatory, collegiate and university department.’ (Art. 6, § 2.)
“ ‘The state superintendent of public instruction shall have the general supervision of the . . . educational interests of the state, and perform such other duties as may be prescribed by law. . . .’ (Art. 6, § 1.)
“By these provisions of the constitution the legislature was required to establish a uniform system of common schools and schools of a higher grade. Realizing that many questions pertaining to educational matters naturally would arise, and which would need the attention of a competent official who could investigate and determine what is best to be done, our constitution gave to the superintendent of public instruction ‘the general supervision of the . . . educational interests of the state,’ and specifically authorized him to ‘perform such other duties as may be prescribed by law,’ without limiting those duties to such as might be classified as executive or administrative only. He is authorized to perform, any duties pertaining to the educational interests of the state which the legislature deems wise and prudent to impose upon him. Under these provisions it cannot be said that the legislature is without authority to authorize the state superintendent of public instruction to perform duties, or determine questions, with respect to the educational interests of the state which, in the general classification of powers of government, would) be regarded as legislative in character.” (1. c. 316, 317.) (Emphasis supplied.)
Far from overruling the Storey case, the Hines case reaffirmed its holding, and in the opinion it was said:
“. . . the legislature can confer legislative power upon the state superintendent of public instruction because the constitution ‘specifically authorized him to “perform such other duties as may be prescribed by law,” without limiting those duties to such as might be classified as executive or administrative only’.” (1. c. 304.)
The legislature has plenary power over the establishment, alteration and disorganization of school districts. It may delegate any part of that power to the state superintendent of public instruction. Interested citizens may question the wisdom of the legislature in authorizing the state superintendent to reorganize the school districts of the state, but the question of the wisdom or necessity of a law is for the legislature and not for the courts. (State, ex rel., v. City of Pittsburg, 188 Kan. 612, 623, 364 P. 2d 71.) None of the powers delegated by the act are offensive to Article 2, Section 1 of our Constitution.
Appellants contend that the act is vague and indefinite; that those required to perform duties thereunder do not know what to do. This contention is not borne out by the facts. This court takes judicial notice that the school districts of Kansas have been virtually reorganized by the state superintendent under the act. The 1965 regular session of the legislature saw fit to approve establishment of some 284 of the new districts comprising nearly 90 percent of the territory of the state and 75 percent of the pupils. Local bodies studied, reported, and recommended under the statute; the state superintendent acted under it; the purposes of the act have been carried out, and to a large extent the act has been executed. We hold that the act is sufficiently clear and definite to be valid.
Appellants next contend that the act amends and repeals existing laws without referring to them. K. S. A. 72-6750 (amended by the 1965 legislature) imposed additional requirements on transfer of school territory and issuance of school bonds. The legislature apparently felt additional restraints would be beneficial in carrying out the school reorganization. Such provisions are common and have been specifically approved by this court. (State, ex rel., v. Rural High-school District, 126 Kan. 166, 170, 171, 267 Pac. 2) The act does not violate Article 2, Section 16 of our Constitution.
Appellants seems to make a somewhat vague complaint about uniformity of the enactment. This court is of the opinion that a very beneficial measure of uniformity is being accomplished for the school system of Kansas under the school reorganization. It could hardly have been less uniform than at the time the legislature acted. The legislature in passing this act was carrying out its constitutional obligation under Article 6, Section 2 of the Constitution.
Having fully examined the record, we are of the opinion that Chapter 393 of the 1963 Session Laws of Kansas (now K. S. A. 72-6734 et seq., as amended) is valid, and the district court did not err in entering judgment for the defendant.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J. :
We will consider whether the note sued on and the mortgage sought to be foreclosed were barred by the statute of limitations as to the defendant in error R. L. King. It is first claimed by the plaintiff in error that the extension agreement executed by the Iowa Cattle- Company on May 8, 1891, with coupons attached, and the payment of said interest coupons up until January 1, 1893, prevented the running of the statute. It will be noticed that this extension agreement was between the cattle company and Jarvis, Conklin & Co., and that the interest coupons were payable to the latter. The original note and mortgage, however, from Bergthold and wife, were given to the Jarvis-Conklin Mortgage Trust Company, and the latter, in March, 1888, more than two years before the execution of the extension agreement, had duly assigned the mortgage in question to the Mercantile Trust Company, and at the time of the execution of the extension agreement said Mercantile Trust Company was the owner of said mortgage, as shown by the evidence in the case. Were we to sustain the contention of the plaintiff in error that Jarvis, Conklin & Co. and the Jarvis-Conklin Mortgage Trust Company were identical, still the extension agreement appears to have been given to a stranger to the mortgage. (Sibert v. Wilder, 16 Kan. 176; Schmucker v. Sibert, 18 id. 104.) The payment of interest to a stranger not shown to be acting for the person entitled to receive said payment cannot stop the running of the statute of limitations.
The reply to the answer of King avers that E. M. Donaldson and J. L. Hosmer have been non-residents of the state of .Kansas since the 22d day of August, 1893, and that plaintiff, during all the time subsequent to that date, had been unable to procure service of summons on either of them. This reply was insufficient under the peculiar reading of our statute. The fact of non-residence is insufficient to bring the case within the exception and prevent the running of the statute. The question is not one of domicile but of personal presence in the state. (Mary E. Lane v. The National Bank of the Metropolis, 6 Kan. 74; Hoggett v. Emerson, 8 id. 265; Coale v. Campbell, 58 id, 484, 49 Pac. 604.) Nor does the fact that the plaintiff below was unable to procure service of summons on said parties assist it to extend the time of the running of the statute. While the reply was demurrable, yet the court below treated it as sufficient and permitted testimony to be introduced regarding the absence of Donaldson and Hosmer from the state. We have examined this testimony and fail to find proof sufficient to show that since the date named in the reply the defendants Donaldson and Hosmer have been absent from the state of Kansas.
Complaint is made of the exclusion of the testimony of Minnie C. Donaldson. She testified at the trial that she had been the wife of E. M. Donaldson, and that the latter had not resided in the state since August, 1893, and was not then in the state. On cross-examination she made answers to questions as follows: “ Ques. Whatever you have known about his whereabouts has been such as you have learned from communication? Ans. Yes, sir. Q. That was while you were his wife? A. Yes, sir.” The court then, on motion of the defendant below King, excluded such testimony from the consideration of the court. The testimony, in our judgment, relating as it did to residence in the state, and to the fact that Donaldson was absent from the state at the time of the trial, was incpmpetent. But in addition to this, if the knowledge of her husband's residence was derived from a communication from him, she was disqualified to give testimony concerning it. (Gen. Stat. 1897, ch. 95, § 334; Gen. Stat. 1889, ¶ 4418.) And if the knowledge of his residence was communicated to her by other persons than her husband, her testimony would be hearsay. The court below was justified, under the testimony offered, in finding that the defendants Donaldson and Hosmer were not absent from the state of Kansas a sufficient length of time to prevent the running of the statute of limitations.
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The opinion of the court was delivered by
Doster, C. J. :
This was an action for damages brought by Allie May Henry, widow of Frank B. Henry, against the Atchison, Topeka & Santa Fe Railroad Company for negligently causing her husband’s death by its failure to maintain a highway-crossing suitable for the passing of a harvesting-machine over it, whereby the machine became stuck upon the track, and the engine and train collided with it. The case has been reviewed by this court before (Railroad Co. v. Henry, 57 Kan. 154, 45 Pac. 576), and the substantial facts are stated in the report of the former decision. It was reversed because of misdirection of the jury. Upon the second trial the plaintiff again recovered a verdict and judgment, from which error has been prosecuted to this court. The alleged defects in the highway-crossing were insufficiency of width to accommodate the harvesting-machine, and the failure to lay the planks composing it to correspond with the angle made by the railroad and the highway. The railroad company’s defense to the action was that the crossing maintained by it was at a proper angle and of sufficient width to accommodate all the ordinary travel over it; that the harvesting-machine was of an unusual width, and that it had no knowledge that a machine of such width and requiring such highway accommodations was in use. The jury made special findings of fact, of which those material for reference are as follows :
“Q,. 2. Did Edmund Stredder know the condition, of the crossing in question at the time he attempted, to cross over it with the binding-machine on the day of the accident? A. Yes.
“ Q,. 3. Could Edmund Stredder have passed over the crossing in safety had not one of his horses shied and crowded the others so as to cause the wheel at the end of the sickle-bar to run off at the end of the plank crossing'and catch on the rail of the track? A. No.
“Q,. 4. Did Edmund Stredder before attempting to p>ass over the crossing with his binder know what the width of the crossing was, and believe it was of sufficient width to admit of the binding-machine passing over it? A. He believed it was of sufficient width.
“Q,. 5. Was there a plank crossing of the railroad track at the place where Edmund Stredder attempted to cross with his binding-machine on the day of the accident? A. Yes.
“Q,. 6. If you answer the last question in the affirmative, then state how many planks there were between the rails, and how many on the outside of each rail. A. Four between and one on outside of each rail.
“ Q,. 7. If you answer that there was a plank crossing at that place, then state the length of the planks at that crossing. A. Fourteen feet.
“ Q. 8. If you answer that there was a plank crossing at the point in question, then state the thickness and width of the planks. A. Two and one-half inches thick by eleven inches wide.
“ Q,. 9. If you answer that the space between the Tails at the crossing was not all planked, then state what part or portion of it was not planked. A. None except room for flanges on wheels.
“ Q,. 10. If you answer that there were planks at the outside of each rail of the crossing in question, then state the width and thickness of such planks. A. Two and one-half inches thick by eleven and one-,'half inches wide.
“ Q,. 11.. How many horses did Edmund Stredder .have drawing the binder at the time he attempted to pass over the crossing in question? A. Three.
“ Q,. 12. Of what make or manufacture was the binding-machine in question? A. Déering binder, seven-feet cut.
“ Q,. 13. How many wheels were there that carried the binder or on which it ran? A. Two.
“Q. 14. What was the distance from the outside of the main or drive-wheel and the outside of the small wheel that carries the sickle? A. Ten feet and four inches.
“ Q,. 15. Could the binding-machine in question have been taken over the crossing where the accident occurred with safety if drawn by two horses, and with the exercise of ordinary care and prudence on the part of the driver? A. No.
“ Q,. 16. If you answer 15 in the negative, then state why it could not. A. The surface on the approach was too narrow.
“ Q,. 17. Could the binder in question have been driven over the crossing in question, if drawn by three horses abreast, without getting caught or stuck upon the rail, if the outside horses had traveled outside of the planks and between the ties? A. No.
“Q,. 18. Was there anything to prevent a horse from walking over the track outside of the planks at the crossing in question? A. Yes.
“ Q,. 19. If you answer the last question in the affirmative then state what there was to prevent' a horse crossing the track at the end and off the planking. A. The ties and rails.
“Q,. 20. Did the outside horse, called ‘ Old Bony/ crowd the other horses so as to cause the small wheel carrying the sickle-bar to run off the planking and get caught upon the rails of the track? A. Yes.
“Q,. 21. When Edmund Stredder drove upon the crossing just before the accident, with the machine in question, did both the drive-wheel and the small wheel carrying the sickle-bar run upon the planking of the crossing? A. No.
“ Q,. 46. Had Edmund Stredder, whose binder was stuck on the crossing, the day before that crossed the same kind of a crossing on defendant’s track with the same machine without any difficulty or trouble? A. Similar crossing.
“ Q. 47. What was there to prevent Edmund Stredder from leading the third horse so as to have his machine pulled by the team only over the crossing, outside of the extra trouble or care? A. Inconvenience.
“ Q. 48. At the time of the accident in question, could Edmund Stredder have crossed over this crossing with the machine with a team of two horses easily, and without any trouble or danger of getting off from the crossing? A. No.
“ Q,. 49. If you answer the last question in the negative, then state why he could not have driven it over the crossing with a team of two horses in safety at that time. A. The approach was too narrow.
“ Q. 50. Gould the binder in question have gone over the crossing so as to have left a foot and a half from the outside of its wheels on each side of the ends of the plank on each side? A. No.
“Q,. 51. If you answer the last question in the negative, then state how much room would have been left on the outside of each of the wheels on the plank crossing. A. One inch on each end.
“ Q. 52. At what angle did the railroad cross the alleged public road at the time of its construction? A. Seventy degrees and twenty-eight minutes.
“ Q. 54. Did the traveled track of the road both north and south of this crossing make a bend so as to make the crossing at more nearly a right angle? A. No evidence to show that it did at this particular time.
“Q,.77. Do .you find from the evidence that Edmund Stredder had as much knowledge of the character and condition of the crossing where this accident occurred, and of the Deering binder, and of the breadth of crossing required by it when pulled by three horses, as the defendant company had before the time that he attempted to drive over the crossing with the machine so pulled by three horses? A. Yes.
“ Q. 78. Did Edmund Stredder before he got upon the crossing believe that he could drive over it with the machine pulled by three horses with safety, without the machine getting caught or stuck upon the crossing? A. Yes.
“Q,. 79. Were the opportunities of Edmund Stredder for knowing the condition of the crossing as to being safe over which to drive a machine of this character pulled by three horses as good or better than those of the railroad company? A. It was as good.
“ Q. 80. Do you find from the evidence that Deering binders like the one with which the train collided were in general use in the vicinity of the crossing in question prior to that time? A. No.
“ Q,. 82. Had Edmund Stredder been acquainted with the crossing where this casualty occurred ever since the railroad was constructed over that highway? A. Yes.
“ Q,. 83. Do you find from the evidence that Deering binders of the size of the one with which the train in question collided had ever been transported over this railroad crossing or upon this highway pulled by three horses prior to the date of the derailment of the train? A. No.
“ Q,. 84. Do you find from the evidence in this case that Deering binders of the size and description of the one with which this train collided had been transported over the crossing in question along that highway prior to the date of the collision and derailment of the train? A. No.
“ Q. 86. Does a Deering binder of the size and description of the one in question require a greater width of crossing when drawn by three horses than when drawn by two? A. Yes.
“Q. 87. Do you find that the railroad company had knowledge that Deering binders of the size and description of the one with which the train collided were transported over and along the highway in question prior to the date of the derailment of the train. A. No.
“ Q. 89. Do you find from the evidence that Edmund Stredder was the first person that ever attempted to pass over the crossing with a Deering binder drawn by three horses? A. Yes.
“ Q.. 90. Did Edmund Stredder, prior to the time his binder became stuck on the crossing in question, know or have reason to believe that Deering binders such as the one in question could not be safely taken over this crossing when drawn by three horses without being caught or stuck upon the railroad-track?
A. No.”
There is nothing in these findings which acquits the plaintiff in error of the charge of negligent maintenance of the crossing. It is true that Deering binders of the size and description of the one in question in this case had never been transported over this particular crossing prior to the time of the accident, and it is also true that the evidence did not show that Deering binders like this particular one were in general use in the vicinity where the accident occurred. The jury, however, do not find that binders other than those of the Deering make, and of a 'size and description like those of Deering, were not in general use in that vicinity or had not been transported over that particular crossing. It is also true that Stredder, the driver of the binder, had as much knowledge as the railroad company of the width and other conditions of the crossing, and that he had driven the machine over a similar crossing the day before. None of these matters, however, will avail to excuse the railroad company. The statute requires railroad companies to maintain highway-crossings at least twelve feet wide. That is the minimum, but if the necessities of public travel require them of greater width, railroad companies must take notice of the fact and establish them accordingly.
Kansas is a wheat-growing state, and binders and harvesting-machines of all kinds are in common use throughout its limits. Railroad companies must know the requirements of harvesting-machines at highway-crossings, and they cannot be excused from the obligation to maintain crossings of a width sufficient to accommodate the machines in general use in the state upon tlie ground that they did not know that one of more than ordinary width had been introduced in a particular community and was liable to be driven over the crossings there. While they may not be required to take immediate notice of recent and extraordinary enlargements of the size of harvesting-machines as soon as the inventions are put upon the market, and immediately to improve their highway-crossings to accommodate such new inventions, they nevertheless are chargeable with knowledge of the requirements of such machines as are in general use in the agricultural states through which they pass. There is, as before remarked, nothing in the findings to indicate that machines of the size of the Leering binder in question were not in general use in the vicinity where the accident occurred. In fact, there is nothing in the findings to indicate to persons without special knowledge upon such matters that the machine in question was one of more than usual size or width. Its width is stated, but we do not judicially know from that whether it was wider or narrower than the average. We infer, however, from the arguments of counsel that it was wider, and have viewed the case accordingly.
Passing beyond the findings of the jury to the evidence in the case, it appeared in testimony that the accident in question occurréd in Ellsworth county, and that that county is in the wheat belt of the state, a region where wheat-growing is more general than in other parts, and that Deering machines of the size and kind in question were, and for ten or twelve years had been, in common use in that part of the state. While no specific findings were made that _ Ellsworth county is in the wheat belt, and that the machine in question was in general use in the wheat belt, these matters, so far as essential to the plaintiff’s recovery,' are included in the general verdict and operate as much in plaintiff’s favor as though they had been specifically found. It matters not that Stredder had as much knowledge as the railroad company of the suitability of the crossing for the purpose of driving harvesting-machines over it. The case is not determinable upon the strength of what Stredder knew or did not know, nor upon presumptions as to what the railroad company in fact knew, but upon what it as a matter of general knowledge was required to know.
Some exceptions were taken to the reception of evidence in behalf of the defendant in error, and some objections were made to instructions given to the jury. We have examined these claims of. error. They are unfounded. The judgment of the court below is affirmed.
Johnston, J., concurring. | [
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Per Curiam :
In an attempted appeal from a judgment of a justice of the peace the railroad company gave an appeal bond which was insufficient in amount. In the district court the company offered to give a new and sufficient bond, but its application .was denied and the appeal dismissed. The company seeks by mandamus to compel the district court to accept the amended bond and to reinstate the appeal. The only substantial objection to the bond was the insufficiency of the amount. The other objections were captious in their nature and not entitled to serious consideration. It was the duty of the court to allow the filing of a new and sufficient bond and to take cognizance of and hear the case upon its merits. (St. L. & S. F. Rly. Co. v. Hurst, 52 Kan. 609, 35 Pac. 211.) The amount involved being less than $100, the ruling of the district court dismissing the appeal cannot be reviewed on error or appeal.
The remedy of mandamus, however, is not available. The district court, in dismissing the appeal, acted judicially, and mandamus will not lie to control discretion or to revise judicial action. The fact that the ruling of the inferior court is plainly erroneous is no ground for mandamus where the question of dismissal is properly within its jurisdiction. Nor will mandamus lie even though the party aggrieved has no right of appeal or other remedy to review the action of the court, as the want of such remedy does not of itself entitle the party aggrieved to the extraordinary remedy of mandamus. (High on Ext. Leg. Rem., §§ 173, 189, 190.) Writ refused. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action brought against the Atchison, Topeka & Santa Fe Railway Company in behalf of George Potter, who was injured by a moving train in the yards of the company at Larned. It was alleged that while attempting to pass around one train another was negligently backed against him without signal, warning, or any precaution for his safety, crushing his foot so that amputation became necessary. The trial resulted in a verdict and judgment against the company for $5500.
Complaint is made of several rulings of the trial court on the pleadings, testimony, and instructions. The company asked the court to compel the plaintiff below to make his petition more definite and certain by setting forth the purpose of George Potter in crossing the yards w'here he did, and whether the accident occurred on a street or on the private grounds of the company, but the motion was refused. In this respect the petition was defective. It was important for the company to know whether the plaintiff below claimed the injury was inflicted at a public crossing or on its private grounds, and if on its private grounds, whether he was there by invitation of the company or as a trespasser, or whether he went there to board a train as a passenger, or was merely playing in the yards and was hurt while attempting to catch on a passing train. The duties of the respective parties on a street differ materially from those required of them on the private grounds of the company, and acts which would constitute negligence in one place could not be regarded as negligence or grounds of liability in the other. In order to prepare for trial and make its defense the company was, therefore, entitled to know what claim in this respect the plaintiff below made.
Mrs. Penrose was called as a witness and stated that she had talked with George Potter just a short time after he was injured, and heard him tell how the accident occurred, but the court would not permit the statement to be given. The company then offered to prove by her that in the conversation she then had he said that he was hurt while attempting to climb or hold upon a passing train. The evidence was excluded by the court on the ground that George Potter was incapable of understanding the nature of an oath, and that the court had previously refused to receive his evidence for the same reason. ' In this there was error. There is probably no more important kind of testimony than the declarations of suitors made against their own interests, and the admissibility of such testimony does not depend upon- whether the person making such declarations recognizes or understands the nature of an oath. Infants who have not a due sense of the obligation of an oath may be excluded by the court, but when an infant becomes' á party to a suit, or is liable, the same species of evidence is received against him as though he were an adult. His declarations are to be cautiously received on, account of his age, but the value and force of the same are necessarily left for the determination of the jury. (Mather v. Clark, 2 Aik. 207; Tyler on Infancy, 187.) In this case the infant was less than seven years of age, but it would seem from the answers given by him on the inquiry as to his competency that his testimony should have been received. That was a question for the trial court, and it has a large discretion in the determination of the same. The test in such a case is not alone whether the infant is able to narrate facts correctly, but it is whether he comprehends the binding effect of an oath. As declarations against interest are not made under oath, that test is not applicable, and where, as in this case, the infant appears to be able to relate facts, his declarations should be received, leaving the jury to judge as to the value of the evidence from the age and intelligence of the infant and the conditions under which the declarations were. made.
The general rule requiring all evidence to be given under the sanction of an oath which operates to exclude some infants and other persons from testifying is not a bar to the admission of the competent declarations of such persons when related by competent witnesses. Under the common law, as well as in some of the states, atheists and persons without religious belief are deemed insensible to the obligations of an oath and incompetent as witnesses, but declarations made by them against their own interests would not, for that-reason, be rejected in a litigation in which they were interested. Nor should declarations of a like kind made by an infant be rejected merely because the court concludes that he does not understand or appreciate the nature of an oath. The vital importance of the evidence excluded can easily be understood when it is' known that there were but two witnesses who saw the accident, one of whom testified that he was run down by the train, while the other testified that he was hanging on the steps of a car. The declarations of the boy made immediately after the occurrence might have had great weight with the jury in settling the disputed question, and might have proved a controlling element in the case.
John Potter, who was a witness in behalf of his son, testified on direct examination as to the age of the boy, and upon cross-examination testified that he was a bright boy. This testimony was received without objection, but afterward the court, on motion of the plaintiff below, struck it out. As an issue of contributory negligence was raised, the brightness or intelligence of the boy was an important consideration. This was recognized by-the court in charging the jury, when an instruction was given that they might take into consideration the age and intelligence of George Potter in determining whether he was guilty of contributory negligence. Then, again, the jury were instructed that, in fixing the amount of damages, if plaintiff was entitled to recover, they might take into consideration the boy’s age and intelligence ; and a special interrogatory was submitted to the jury as to whether he had sufficient intelligence to know the danger of getting in front of a moving train. For the determination of these questions the testimony stricken out was material and important. It is suggested that it wTas not proper cross-examination, but no objection was made to it on that ground when it was introduced, and, on the whole, we think it was admissible.
For the errors mentioned the judgment will be reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Doster, C. J. :
This was an action brought by A.
B. Green against the receivers of the Atchison, Topeka & Santa Ee Railroad Company to recover damages for injuries received by him as a passenger on one of the company’s trains prior to the appointment of the receivers. A phase of the controversy recently came before us in another action. (Railroad Co. v. Green, ante, p. 20, 55 Pac. 281.) In that case it was held, construing the orders of the United States circuit court appointing and controlling the receivers, that they were liable notwithstanding the injuries were received previous to their appointment, and at a time when the company itself was in the operation of its line of road. The main case is now before us for consideration. The jury returned a verdict and special findings of fact in favor of the plaintiff, upon which judgment was rendered for him. The findings, aided in some particulars by the evidence, to which we have referred for a fuller understanding of the case, show the following facts : Green shipped a car containing a horse and household goods over the line of the railroad from Kansas City, Mo., to Caldwell, Kan. The car was loaded during the day, and the train started in the evening. A part of the agreement of shipment was as follows :
“Release. — In consideration of the free transportation granted me by the Atchison, Topeka & Santa Fe Railroad Company for the purpose of accompanying the stock shipped on the within contract, and of being permitted to go in, over and about the cars in the train in which said stock is carried, and of being furnished return transportation free over said company’s line to the point of shipment, as stipulated by the within company, we hereby release said company from all liability to us as to a passenger carried for compensation, assuming for ourselves all the risks of accident, injury or damage from any cause whatever yhile upon the trains or premises of said company in charge of said stock, and while being returned free to the point of shipment as aforesaid (if entitled to return transportation free as per rules printed below).
“ Signed this 30th day of October, 1893.
“Fred. C. Adams, Witness. A. B. Green.”
The train was an ordinary one with a caboose or way-car attached for the convenience of the trainmen and passengers. Green did not ride in the caboose. He rode in the freight-car with his horse and household goods. He did so, as he said, in order to look after his property. Just before starting from Kansas City he was seen in this car by the train conductor and station agent there, under circumstances reasonably indicating to them an intention on his part to ride in it. It was not unusual, though not the rule, for men shipping household goods to ride in the car with them. However, the trainmen .on the train in quesT tion did not know that Green was in the car. He did not surrender or exhibit his pass or contract of shipment.
The trip from Kansas City to Newton occupied about eighteen hours. Upon arriving at the latter place the car containing the horse and goods was taken out of the train in which it had that far been brought, and was made up with other cars into a different train destined for Caldwell and other points south. In making up the new train in the yards at Newton, another car was bumped with considerable violence against the one containing Green and his property, so much so that the horse was thrown partly down, and some of the household goods moved or slid a foot or more along the car floor, and upon arrival at Caldwell a table and some kitchen utensils were found broken, supposedly as a result-of the jar received by the bumping together of the cars at Newton.
The car in which Green rode was a grain-car with side doors constructed to slide upwards a certain distance on iron rods. When raised to the proper height the lower part of the door could be pulled inward and raised up and fastened to the roof of the car by a hook. Before the loading of the car at Kansas City, this door had been raised and the end of it hooked upwards as just described. It was seen in that position by Green at the time of starting although he did not specially inspect it to see how it was fastened. The mechanical device of raising, hooking up and lowering the door was very simple. It could have been readily comprehended by Green, and he could have easily unhooked and lowered the door had he desired. He placed a wagon-box in the center of the car between the two side doors. Inside this box he put a cot upon which he slept during the night, and sat, if he so desired, during the day. This cot was immediately beneath the hooked-up and overhanging door before described. At Newton the train on which Green had ridden was turned over to the yard workmen there, the men who had brought it from Kansas City leaving it in their charge. There was no evidence that any of the workmen knew that Green was in the car. In making up the new train the impact of the two cars mentioned caused the door to become unfastened and to fall, striking Green and injuring him, to recover for which this action was brought. It cannot be maintained.
Freight-cars are not designed for passenger travel, nor are they used for such except as the exigencies of particular cases require. A railroad company discharges its full duty to the public when it provides trains composed of passenger-coaches and puts cabooses to its freight-trains for the convenience of such passengers as have occasion to accompany their live stock or other property. It is not required in the management of its freight-trains, in making them up, in coupling its freight-cars together and in switching them about in its yards, to exercise that degree of care which is necessary in handling its passenger-coaches and trains, for the obvious reason that no passengers are supposed to be in its freight-cars. To hold railroad companies, as to passengers voluntarily and unnecessarily riding in their freight-cars, to the same degree of care required of them as to passengers in their regular coaches, or in their cabooses, would ■be preposterous. Carefulness is required of railroad companies, as of individuals, with relation only to that which may be injured or destroyed by the lack of it, and with relation to their knowledge of what has been committed to their care. With relation to passengers whom they have undertaken to transport, the highest degree of diligence which human skill and foresight can exercise is required of them ; with relation to freight they have undertaken to transport, a less degree of care and prudence is exacted. For example, the receivers may be liable for the negligent handling of the cars in the yards at Newton which resulted in damage to the goods of the defendant in error, but they are not liable to him for the injuries he received, because he voluntarily exposed himself to-the hazards of riding in a freight-car.
It is no sufficient answer to say that the trainmen knew the defendant in error was in the freight-car. In all probability they were unaware that he was in fact in it; nor were they bound by the usual course of their duty or their observation to know that he or other passengers would be liable to ride in such unusual place, but had they known him to be in the car the case would be nowise different. The increased dangers of riding in such car were as well known to him as to the trainmen, and their knowledge that he was exposing himself to the increased perils of such kind of passage, or their permission to him to do so, constitutes no justification for his act. He was of mature years and discretion, and needed no one to warn him against the hazards he was taking. He as well as they were charged with notice that freight-cars are not fit and safe vehicles for travel.
The principles applicable to this case have been heretofore declared by this court in A. T. & S. F. Rld. Co. v. Lindley, 42 Kan. 714, 22 Pac. 703. In that case it appeared that a live-stock shipper was directed by the conductor to go upon the top of the train hauling his stock, so as.to assist in watering it. He did so, and was injured by the negligent act of the engineer in violently bumping together detached portions of the train. It was ruled that riding upon the top of the cars was negligence upon his part, and also that the direction or request of the train conductor to do so constituted no excuse for his assumption of the risk. In the opinion by Chief Justice Horton many of the cases elucidating the. rules in question are cited and quoted. No cases involving a state of facts entirely like those under consideration have been called to our attention, but many of an analogous character are cited in Ray on Negligence of Imposed Duties, ch. viii. The rule collectible out of these cases fully supports the decision made in this case and in that of Lindley, supra.
It is true that the portion of the written contract of shipment made by the defendant in error recites that he was “permitted to go on, over and about the cars in the train in which said stock is carried.” This, however, was not a permission to ride throughout the entire journey on other parts of the train than the caboose, but it was, as the language reads, a permission to go on, over and about the train, and was, of course, designed to enable him to make such inspections en route of his horse and other property as might be thought necessary to care for it properly. There was no occasion for him to ride continually in the car with his horse and household goods in order to care for them, nor does the contract of shipment presuppose a necessity for doing so, and therefore confer upon him a corresponding right. The demurrer to the. evidence of the defendant in error, plaintiff below, should have been sustained; so, likewise, judgment should have been rendered against him on the special findings of the jury. The judgment of the court below is reversed, with directions that these be done. | [
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The opinion of the court was delivered by
Doster, C. J. :
This was an action originally brought by Charles Dunn against the Atchison, Topeka & Santa Fe Railroad Company to recover a sum of money claimed to be due upon an award. The railroad company desired to purchase some town lots for right of way and other purposes, and to adjust a claim against it for damages for trespass committed by it upon the lots. The parties entered into a contract in writing, by the terms of which Dunn agreed to sell and convey and the company to buy the lots at a price to be fixed by arbitrators or appraisers of value. The appraisement was made, but the company refused to pay the amount awarded, whereupon suit was brought to enforce the terms of the agreement. This is the second time the case has been before us. (Guild v. Railroad Co., 57 Kan. 70, 45 Pac. 82.) Upon the former hearing the judgment was reversed. When first presented it was entitled in the name of Guild, as administrator of the estate of (Charles Dunn, as plaintiff in error. After the reversal of the case the right of action was assigned to •the present plaintiff iti error, Francis C. Downey. ‘The facts out of which the controversy arose are fully stated in the report of the former decision. The second trial of the case developed no additional matter of sufficient importance to be specially noted.
As will be observed by a reading of the former decision, the railroad company claimed the benefit of certain disclosures of misconduct on the part of Whittaker, one of the arbitrators or appraisers, made in the evidence adduced upon the trial of the case, without having pleaded such conduct as a defense to the action. It was ruled, however, by a majority of the court that “ where fraud, misconduct or mistake is relied upon as a ground for setting aside an appraisal of land duly made by appraisers selected in accordance with the agreement of the parties, it must be pleaded.” After the case was remanded to the district court for a new trial, the railroad company amended its answer by alleging that the award or appraisal was fraudulently made by the arbitrators or appraisers, through collusion with Dunn, the former plaintiff and owner of the lots, for the purpose of extorting from the railroad company a sum of money greatly in excess of the real value of the property. "Without quoting this portion of the answer, it is sufficient to say that the plaintiff in error claims in his argument, and we think correctly, that the allegations were too general in their terms to constitute a charge of fraud. The answer in respect to this matter was principally made up of animadversions upon the conduct of the arbitrators, or appraisers, in overestimating; the value of the town lots and of conclusions of fact rather than the facts themselves. The answer, so far-as it consisted of allegations of fact, amounted to a charge of misconduct and partiality, or partizanship, upon the part of the arbitrators. Such parts of this-portion of the answer as conformed to the rules of' pleading can perhaps be fairly stated in the language of one of the findings of fact made by the court below»
“In the making of said appraisement said J. B; Whittaker considered that he was acting for and on behalf of said Charles Dunn, and was endeavoring to obtain for him the highest price possible for said land ; that during the meetings of said Whittaker and said Jewell as appraisers, or arbitrators, Charles Dunn was frequently present and counseled and advised with said J. B. Whittaker in regard to said matter.”
The award or appraisement was made in January, 1891. The action to enforce the award or compel the payment of the appraisement was commenced April 7, 1891, and the amended answer, which attempted to plead the fraud of the arbitrators, was filed September 19, 1896. To the allegations of fraud in the amended answer the plaintiff replied by setting up the two years’ statute of limitations. Upon the pleadings as they formerly stood and as amended in the particular noted a second hearing was had. The trial was to the court without a jury. Findings of fact were made and judgment rendered in favor of the railroad company, and the plaintiff prosecutes error to this court. In addition to the finding above quoted, one other only need be noted, which was as follows : “At the time of the commencement of the suit referred to, defendant company knew of the appraisement or award herein-before referred to, and knew of the circumstances under which the same was made.’’ Some of the questions presented to the court and disposed of on the former hearing are again discussed, but in the view we have of the case we are not required to reexamine them or to determine the binding effect of the former decision.
. The single necessary question now before us arises upon the amended answer setting up the misconduct of the arbitrators or appraisers, and the plaintiff’s reply of the statute of limitations. More than five years had elapsed since the occurrence of the claimed raisconduct and the filing of the amended answer of the railroad company in which the misconduct was for the first time pleaded. Indeed, more than five years had elapsed since the commencement of the action before the amended answer was filed, and the court below in the finding last above quoted states that at the commencement of the action the railroad company knew of the circumstances under which the appraisement, or award, was made. Whether by this is meant knowledge upon the part of the railroad company of the misconduct of the arbitrators, or appraisers, may be questionable. It was probably intended as a finding of such knowledge but its language is not clear in meaning. However, no question as to its meaning has been raised by the railroad company, and we will assume that it is to be understood as a finding of knowledge upon the part of the company in the particular mentioned.
The inquiries presenting themselves are these : Under the pleadings, was the defense of misconduct by the arbitrators barred by the statute of limitations, and if by any statute, by which one — that of two years or that of five years? We suppose the right of the railroad company to institute an action to set aside the appraisement, or award for the misconduct of the arbitrators, or appraisers, will not be questioned. It might have taken the initiative and brought an action to vacate the award. (Russell, Arbitr. 663.) This it would have been compelled to do within some statutory period of limitation. The same obligation rested upon it when it chose to assert its right defensively that rested upon it to assert it affirmatively.
‘ ‘When a right of action is barred by the provisions of any statute it shall be unvailing either as a cause of action or ground of defense.” (Gen. Stat. 1897, ch. 95, § 19; Gen. Stat. 1889, ¶ 4102.) In its controversy with the plaintiff and his assignee, the railroad company did not choose to found a right of action against the plaintiff upon the misconduct of the arbitrators, or appraisers, but chose to use it as a ground of defense to plaintiff's action, but it did not do so until the longest period of statutory limitation applicable to the case had fully run. If, therefore, the plaintiff in his reply has set up the period of limitation appli cable to the case, the railroad company’s defense of misconduct is unavailing.
Did the plaintiff plead in his reply the period of limitation applicable to the case, and if he did not, what is the consequence? These questions are but slightly touched upon by the counsel for either side, but in our view they are the controlling questions of the case, and to them we have given much thought, in the light of the authorities. Our conclusion is that the plaintiff did not set up the period of limitation applicable to the case, but instead thereof set up a shorter one, and by so doing must be regarded as having altogether waived the statute of limitations as a reply to the defendant’s answer. The failure of the plaintiff to plead the proper statute arose from a misconception of the character of the misconduct attributed to the arbitrators or appraisers by the defendant in its answer, and found by the court to have occurred. The arbitrators or appraisers were not charged or found to have been guilty of fraud. They were charged with partiality and favoritism for Dunn, the original plaintiff, and charged with having awarded to him, through their partiality and favoritism, a sum of money largely in excess of a just allowance. Under this charge, the court found as a fact that Whittaker, one of the arbitrators, misconceived his duty by supposing that he was acting for and in the interest of Dunn, and in endeavoring to secure for him the largest possible price for the lots, and the court also found that during the work of appraising the lots Dunn frequently counseled and advised with Whittaker concerning the matter. The court also determined, in a finding not necessary to quote in full, that the amount of the award, or appraisement, was largely in excess of the fair value of the property.
It was a grievous misconception upon the part of Whittaker to suppose himself to be the representative, or agent, of Dunn, and it was highly improper for him to hold converse with Dunn about the subject-matter of the arbitration, but neither of these things constituted what the law terms fraud. Fraud is deception or artifice by which disadvantage results to one who has a right to rely upon openness, candor, and fair dealing. (Bouv. Law Dict., tit. Fraud.) It is not deception or artifice by one whose duty is to .make a just appraisement to disregard that duty and make an unjust appraisement, even though it be done through corrupt and dishonest motives. It is a violation of trust, or misconduct in office, but it does not constitute fraud in the sense of its legal definition. Whittaker practiced no arts of deception upon the railroad company ; he made no false representations to it; he did not deceive it as to what he had done or would do ; he falsified as to no fact by which the company was led to do differently from what it would otherwise have done. He simply misconceived his duty in the premises, or, to state it as strongly as can be in any aspect of the case, he betrayed his trust. There are many ways by which a judge or an arbitrator bound to impartiality of duty may be guilty of fraud in its proper legal sense, but simply to render a judgment or make an award for a larger sum of money than the evidence justifies, even though from motives of partiality, is not one of them, because .there has been no deception or artifice — there has been only injustice of decision.
Cases have occurred in which awards have been set aside on account of actions similar to those attributed to the arbitrator Whittaker in this case. In such instances, however, the conduct of the arbitrator has been characterized as “ misbehavior,” “ misconduct,” “partiality,” “bias,” or “ partizanship.” (Bash v. Christian, 77 Ind. 290; The Wheeling Gas Co. v. The City of Wheeling, 5 W. Va. 448; Brown v. Harper, 54 Iowa, 546, 6 N. W. 747.) Such behavior, misconduct, partiality or bias constitutes sufficient ground to set aside an award or appraisement of land values such as was had in this case, and it constitutes a good defense to an action to enforce the award, or appraisement, brought by the one in whose favor it was made. The authorities are numerous and uniform to this effect.
To return, however, to the question of the period of limitation applicable to the case. It follows from the fact that the misconduct of the arbitrator Whittaker was not in its legal sense fraud, the plea in the plaintiff’s reply of the two years’ statute of limitations was unavailing. Had the defendant brought an action to set aside the award, it would have been, in the language of the sixth subdivision of section 12, chapter 95, General Statutes of 1897, “an action for relief not herein provided for.” Relying upon the statute defensively, as the railroad company did, its character, of course, is the same. Whether pleaded affirmatively or defensively, it must be done, in the language of the subdivision above mentioned, “ within five years from the time the cause of action shall have accrued.” The statutory period, therefore, which bars actions to vacate awards, or which bars defenses to such actions upon the grounds stated in the defendant’s answer in this case, is five years, and had the plaintiff pleaded such period of limitation his reply would have been good. However, he did not do so, and his reply in this particular was bad. Under all the authorities we have been able to find, a- plea of a shorter period of limitation than the one applicable to the case is no. plea at all; it is in effect a waiver of the longer and proper period of limitation which might have been alleged.
In Bridgeforth v. Payne et al., 62 Miss. 777, a six years’ statute of limitation was pleaded as a defense to an action to which a statute of seven years was applicable. The court held the plea of the shorter period unavailing, and remarked in the opinion, among other things, that “ the appellant, having relied upon a statute not applicable, cannot invoke the protection of another not pleaded. The party who pleads or replies to a“ statute of limitations not appropriate to the action must abide the result. (Boyd v. Barrenger, 23 Miss. 269; Trustees v. Gilman, 55 Miss. 148.)”
In Hunter et al. v. Hunter et al., 50 Mo. 445, the court ruled that “ a plea of the statute of limitations which only sets up a bar by lapse of five years' is not a good plea of a bar by ten years ” ; and in the opinion it was remarked: “Even if ten years had expired, the plea only set up the five years and not the ten years, so there was no proper plea of the ten years’ bar set up in this suit.” In Murphy v. De France, 105 Mo. 53, 15 S. W. 949, and 16 S. W. 861, the case of Hunter et al. v. Hunter et al., supra, and other eases to the same effect, were reaffirmed.
In Bruce v. Baxter, 7 Lea (Tenn.) 477, a statute of three years was pleaded to an action controlled by one of six years. The court, among other things, remarked : “We need scarcely cite authorities to refute the argument of the respondent, so earnestly pressed upon us, that he can have the benefit of the statute of limitations of six years without having claimed it in his defense by answer or plea. The law has been too long settled the other way in our state to be shaken, and we think correctly.”
In Retzer v. Wood, 109 U. S. 185, 3 Sup. Ct. 164, it was held that, in the absence of a statutory rule to the contrary, the defense of a statute of limitations which is not raised either in pleading or on the trial, or before judgment, is of no avail.
Statutory limitations upon rights of action or grounds of defense, while now looked upon with more favor than formerly, are not regarded with sufficient favor to justify the courts in correcting the mistakes of a party endeavoring to interpose them as shields-against his adversary. Certainly the courts cannot give to-a party the benefit of a statute of litnitatipns which he has not chosen to plead. Certainly they cannot give him the benefit of the longer statutory period applicable to his case which he did not plead, in lieu of the shorter period not applicable, but which he has nevertheless pleaded.- In such case he will be deemed to have waived the statute of limitations as a defense or as a reply, the same as though no statute at all had been pleaded.
It follows from the fact that the award, or appraisement, was tainted with the misconduct and partizan-ship of one of the arbitrators in the respect mentioned that it cannot be made the basis of a suit for its enforcement. Its infirmity in that respect lies *at the very foundation of the plaintiff's action. Any errors which the court may have committed in the trial of the case, unconnected with the question of the validity of the award, will not, therefore, constitute grounds for the reversal of the judgment. Quite a number of such claims of error have been forcibly pressed upon our attention, and although we have given them attention in the study of the case, we deem it unnecessary to express an opinion concerning them. We do not wish to be understood, however, £¿s holding the plaintiff in error remediless for the failure of the defendant in error to pay for the town lots taken by it, or for damages for the trespass committed by it. If there has been a trespass upon the town lots, or if the defendant in error has appropriated them, the facts may be ascertained and the law may yet' afford relief ; or for aught we know the written agreement to submit to arbitration may still be in force, and under it the parties may still be entitled to select new arbitrators, or appraisers, and secure thereby a valid award, or appraisal.
However, for the reasons above given, the judgment of the court below will be affirmed. | [
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The opinion of the court was delivered by
Johnston, J.:
This is ejectment for the recovery of land in Jackson county, and at a trial had in 1890 the defendants prevailed, but upon a review in this court the judgment was reversed and the cause remanded for another trial. (Douglass v. Lowell, 55 Kan. 574, 40 Pac. 917.) In the trial which followed defendants were again successful, and several of the rulings made during the trial are now assigned for error.
The plaintiff’s principal, claim of title was based on a sale of the land in 1863 for the taxes of 1862, when it was bid off by the county treasurer in the name of the county. The subsequent taxes upon the land for the years 1863 to 1867, inclusive, were charged against it under the sale of 1863. In 1868, the interest of the county was assigned to John C. Douglass, apparently for the amount for which the property was sold and the subsequent taxes levied against it, and in September of that year a tax deed purporting to convey the land to Douglass was executed by the county clerk in behalf of the county. This deed, when offered in evidence, was excluded by the trial court upon the ground that it was void upon its face. The claim of infirmity in the deed is that it shows in the recitals thereof that the assignment was for an insufficient consideration ; that is, that it was sold for less than the cost of redemption at the time the assignment was made. This view must be sustained. The recitals in the deed show that Douglass did not pay the amount due on the land, and was therefore not entitled to a certificate of purchase. The assignment was made for the amount for which the property was sold and the subsequent taxes, but the interest on these amounts, and which constituted a part of the cost of redemption, was not paid.
The plaintiff relies on the statement in the deed that the clerk did duly assign the certificates for a good and valuable consideration, but this general statement is overcome by the specific recitals showing that the amount paid for the assignment was less than the county clerk was authorized to receive. There is a positive statute prescribing the amount for which an assignment may be made and the conditions under which the county clerk is authorized to make it. There was no authority to make the assignment for less than the cost of redemption, and Douglass was not entitled to an assignment of the certificate until he had paid into the county treasury the interest which had accrued upon the payments of taxes ; or, rather, a sum of money equal to the cost of redemption of the land at the time of the redemption. The assignment was therefore void, and as the infirmity appears on the face of the tax deed it is a nullity and conveyed no title. (Noble v. Cain, 22 Kan. 493.)
Another point of contention was the ruling of the court excluding from the jury a sheriff’s deed executed in January, 1862, upon a judgment rendered in 1860 against Lemuel H. Springer, who then held the title to the land. The ground of the ruling was that the plaintiff failed to show the proceedings and power by virtue of which the deed had been executed. The claim of the plaintiff was that the sheriff’s deed, being regular on its face, should he deemed sufficient evi dence of the legality of the sale and the proceedings therein until the contrary was proved. This was the rule of statute until 1893. (Gen. Stat. 1889, ¶ 4557.) In that year this provision of statute was repealed (Laws 1893, ch. 109, § 28), and since that time the proper preliminary proof must be offered before such a deed is admissible in evidence. (Gatton v. Tolley, 22 Kan. 678.) The presumptions of sufficiency authorized to be drawn by the statute were taken away by its repeal, and therefore the burden of showing power to sell the land and the regularity of the sale was placed on the one who claims under the deed. The plaintiff, however, contends that the attempt to repeal this provision -was ineffectual, as the repealing statute only purports to repeal the section as designated in the General Statutes of 1889. The claim is that the sectionizing of that compilation and the designation of the provision in question as “4557” of the compilation is the work of the compiler and not of the legislature. It is argued that the only legal and authentic designation of the provision is “ section 459 of chapter 80 of the General Statutes of 1868,” and a reference to the compilation is without authority or force. This contention cannot prevail. The compilation of 1889 is authentic and has legislative recognition. The legislature of 1889 specifically provided that thereafter ‘ ‘ in any bill to repeal or amend any law or section thereof contained in said general statutes, it shall be sufficient to refer to the same by its proper designation in said general statutes.” (Laws 1889, ch. 240, § 3; Gen. Stat. 1889, ¶ 7306.) The redemption act containing the section repealing the provision in question is no exception to the general practice of the legislature in amending or repealing statutes by reference to the same as certain designated sections of the General Statutes of 1889. Such a reference and designation sufficiently indicates the legislative purpose, and we think the repeal is as effectual as if reference had been made to the published session laws or earlier compilations.
Having sustained the rulings of the trial court on the questions discussed, the other objections of the plaintiff become immaterial, and as none of the errors assigned authorizes a reversal the judgment will be affirmed. | [
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The opinion of the court was delivered by
Smith, J. :
This action was brought in the district court of Wyandotte county by Otto J. Morasch and Eliza Morasch, the father and mother of Irene Morasch, to recover damages from the plaintiff in error for the death of said Irene Morasch, an infant about twenty-two months old, said death being caused, as alleged, by a passenger-train negligently operated by the engineer and trainmen of the receiver running upon and over said infant. The accident occurred within, the corporate limits of Kansas City, Kan., a city of the first class. Plaintiffs below recovered a verdict for the sum of $1020, and judgment was rendered accordingly. On proceedings in error to the court of appeals, northern department, the judgment was affirmed. (8 Kan. App.—, 54 Pac. 323.) Afterward, and on October 3, 1898, the plaintiff in error made an application to this court for a certificate of review, seeking to have the decision of the court of appeals reversed for errors committed by that tribunal in the consideration of the case. This application was addressed to the discretion of this court, under section 23 of chapter 84, General Statutes of 1897, and was denied. The plaintiff in error, on October 6, 1898, filed in this court a copy of the case-made and transcript upon which the cause was considered in the court of appeals, together with a petition in error containing twenty-one assignments, and had summons in error issue to said defendants in error. A motion has been filed by defendants in error to dismiss the cause for the reason that an appeal to this court by plaintiff in error cannot be considered as a matter of right.
This last attempt to invoke the action of this court in the case proceeds upon the theory that the plaintiff in error is entitled to have the decision of the court of appeals reviewed here as a matter of right, under section 31, chapter 84, General Statutes of 1897, which reads:
“Proceedings in error may be taken from the judgment of the courts of appeals to the supreme court in any action or proceeding where the courts of appeals have original jurisdiction, or in any case involving the tax or revenue laws of this state, or the title to real estate, or the constitution of this state, or the constitution, laws or treaties of the United States.”
The establishment of the courts of appeals was intended to relieve the crowded docket of this court, and to save litigants from that long delay in the hearing of causes which theretofore, in some instances, resulted in a practical denial of justice. It is important therefore to parties litigant that in aid of the prompt administration of justice this court refuse to entertain jurisdiction of causes brought here from the courts of -appeals, unless the right to review the action of those courts is clear and undoubted under said section 31, or unless errors are pointed out which challenge the attention of this court to a degree demanding an order for the removal of the cause here for rehearing.
In the case at bar a review of the decision of the court of appeals is sought for the reason that that court sustained the validity of a city ordinance limiting the speed of railway-trains within the city limits to six miles per hour, which ordinance excepted from its. application the Inter-State Eapid Transit Eailway Company. It is claimed that this ordinance, enacted under legislative authority, not only violates section 17, article 2, of the constitution of Kansas, securing uniformity of all laws of a general nature throughout the state, but that it infringes upon the provisions of 'the fourteenth amendment to the constitution of the United States, providing that no state shall “ deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal .protection of the laws.” The ordinance was material evidence in the trial court, and its violation by the servants of the receiver constituted the chief charge of negligence.
It was established at the trial that the excepted company, the Inter-State Rapid Transit Railway Company, was a street-railway company operating a line of road for the carriage of passengers only along and over the streets and alleys of Kansas City, Kan.; that the road operated by the plaintiff in error was an ordinaxy railroad, for the cax’riage of both passengers axid freight; and that at the time of the passage of the ordinance the street-railway cars of the Inter-State coxnpany were propelled by “dummy” locomotives using stéaxn, but at the time of the accident the xxse of steam had been abandoned and electricity substituted as a motive power.
It is not contended by the plaintiff in error that there was any lack of power in the municipality to regulate the speed of railroad cars and trains running through its limits, but that the ordinance in question discriminates in favor of the Inter-State Rapid Transit Railway Coxnpany, which was operated in a manner axid with propelling force alike in all respects to the railroad then in the hands of the receiver. If there had been no evidence offered in the case explanatory of the workings of the Inter-State Rapid Transit Railway Coxnpany, it might be inferred from the face of the ordinance that the exception exempted from its penalties a railway similar to that operated by the plaintiff in error. The evidence heard in the trial court, however, showed that the Inter-State Rapid Transit Railway Company was designed and operated merely to facilitate travel and communication upon the public highways of the city, furnishing to the inhabitants of the municipality ready and rapid transportation from one part of the town to another. Can it be said, then, that a question is here presented which involves the constitution of this state or the constitution or laws of the United States? It is clear to us that the legislation enacted by the city council is not obnoxious to the provisions of the constitution of this state or to the fourteenth amendment to the constitution of the United States.
The mere assertion of an infringement of constitutional rights when the claim appears to be merely colorable cannot move this court to assume or retain jurisdiction of a cause for the purpose of review. This court will look beyond the alleged deprivation of rights guaranteed to ascertain whether the wrongs complained of have any substantial foundation in law or reason. Were it otherwise, the ingenuity of counsel would be constantly exercised in the pursuit and discovery of questions in a case “ involving . the constitution of this state, or the constitution, laws or treaties of the United States,” and, however remote and shadowy, compel the review here of decisions intended by the law to be final in the courts of appeals. If the jurisdiction of this court depends upon the niere contention of a party that the constitution of this state or the constitution or laws or treaties of the United States are involved, then inquiry is stifled and investigation into the good faith or soundness of the contention is a useless labor.
It is clear to us that the ordinance received in evidence was a mere police regulation, governing the speed of ordinary steam-railroad engines and cars only, and that the exception of a street-railway from the penalties prescribed by the same was not clas's legislation, nor were the constitutional rights of the plaintiff in error infringed thereby. The motion to dismiss the proceedings in error will be sustained. | [
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The opinion of the court was delivered by
Johnston, J. :
Each of the above-entitled causes in volves the title to eighty acres of land in Doniphan county, and both of the tracts together constituted the farm of Thomas Williams, who had an unquestioned title to the same on April 6, 1870. At that time he made a will by which he gave to his wife, Sarah A. Williams, a life estate in all of his land, and provided that at her death it should go to his two sons, William B. Williams and Thomas G. Williams, and be divided equally between them. On April 12, 1870, he died, leaving the wife and two sons above mentioned as his only heirs. On August 12, 1870, which was about a month after William B. Williams became of age, the will was admitted to probate, and it is claimed on one side, but denied on the other, that the widow expressly elected to take under the will, and also that her conduct in respect to the land was equivalent to an election, and estopped her to deny that she elected to take under the will. It is claimed, but disputed, that on March 5,1871, William B. Williams married Emma Muse, then known as Emma Stotts, and whatever the fact may be in respect to them, it appears that they lived together as husband and wife until his death, on September 9, 1873. On October 6, 1872, a child was born to them, named Ella Williams, and she died in less than a year after her father's death, leaving her mother, Emma, as her only heir. On October 9, 1876, Thomas G. Williams, the remaining son of Thomas Williams, deceased, died intestate, unmarried, and without -issue', and no administration was ever had upon his estate. Some time after the death of her husband, Sarah A. Williams married David Lee, and on August 19, 1880, they together executed a deed purporting to convey the land in controversy to the Dubachs, who have since held possession of the same. Since the death of William B. Williams, Emma has intermarried wütli W. W. Muse, and she claims a one-half interest in the property in controversy as the wife of William B. Williams and as the only heir of her daughter, Ella Williams.
M. O. Reville entered into a contract with Emma Muse, under which' he claimed an equity in the property, depending upon the successful termination of this proceeding. The Dubachs insist that Emma Muse was not the wife of William B. Williams, and that the child Ella Williams was not entitled to inherit as his daughter; that, as the widow of Thomas Williams, Sarah A. Lee inherited an undivided one-half of the land, and as the mother of the sons she inherited the' remaining undivided one-half of the land, giving her the entire estate, and that her conveyance of the land to the Dubachs was complete and effectual. The trial resulted in favor of the Dubachs, and the titles claimed by them, were quieted as against the claims of the opposing parties.
One of the important questions before the trial court was whether or not the widow elected to take under the will. No record of such an election was found in the probate court, and the contention of the Dubachs is that the record of that court is the only evidence by which an election can be established. This view was sustained by the trial court, and much of the testimony offered tending to show an election in fact was excluded. In this there was error. It seems to be well settled that an election may be made by acts in pais, and if the acts are plain and unequivocal, and done with full knowledge of the widow’s rights and of the condition of the estate, it is as binding as though it was formally made. If she makes a deliberate and intelligent choice under tiré will, and thereafter proceeds as though an election were made, she is estopped from claiming under the statute. So, it has been held,'“an election by a widow to take under her husband’s will in lieu of dower at law may be evidenced by matter in pais as well as of record, but it must be shown that she’had requisite knowledge of the value and character of her husband’s estate, and that her^intention was consistent with such choice.” (Bradfords v. Kents, 43 Pa. St. 474.)
In Thompson v. Hoop, 6 Ohio St. 480, a question somewhat similar to the one we are considering was involved. There was a devise of real estate to a widow for life, and the remainder in fee to a son. The widow failed to make a formal election to take under the will; as the statute prescribes, but actually and in fact took under the will and had the use and occupancy of thé land devised for a series of years, and it was held that she was estopped to deny her election to take under the will.
Stilley v. Folger, 14 Ohio, 610, is cited as an authority to show that the only mode of proving an election is by the record, unless the record is lost or destroyed. This statement of the law is disapproved by .the supreme court of that state in subsequent decisions.' In Millikin v. Welliver, 37 Ohio St. 460, it is said that the decision in Stilley v. Folger, supra, seems at variance with Thompson v. Hoop, supra, and numerous other cases where an estoppel in pais was proved and held effectual.
Although the question has not been directly adjudicated in this court, Sill v. Sill, 31 Kan. 248, 1 Pac. 556, and James v. Dunstan, 38 Kan. 289, 16 Pac. 459, recognize the doctrine of implied election and that the widow may thereby be estopped from claiming in opposition to such election. See also Craig’s Heirs v. Walthall, 14 Gratt. 518; Chace v. Gregg, (Tex. Civ. App.) 31 S. W. 76; Nimmons v. Westfall, 33 Ohio St. 213; Rawley v. Sanns, 141 Ind. 179, 40 N. E. 674; In re Smith’s Estate, 108 Cal. 115, 38 Pac. 950; Burroughs v. De Couts, 70 Cal. 361, 11 Pac. 734; Reed v. Dickerman, 12 Pick. 146; Watson v. Watson, 128 Mass. 152; Clay v. Hart, 7 Dana, 1; 6 A. & E. Encycl. of L. 254; 1 Pomeroy’s Eq. Jur., §§ 514, 515.
Our own cases, as well as the other cited authorities, require that the proof to sustain an implied election be clear and satisfactory. The acts and declarations relied upon must be unequivocal, and must clearly evince an intention to elect and take under the will, and the choice must be made by the widow with the full knowledge of her rights and of the status of the estate. If, after she has ascertained her rights, and what she would acquire under the law as well as by the will, she deliberately proceeds as though an election had been made, accepts the benefits of the will, and actually takes under it, she will be concluded, and will not be heard to say, that no election has been made. 'In the present case the widow filed a written .petition in the probate court asking that the will be admitted to probate, and that such other proceedings might be had thereon as would establish and make valid the will in law. It is claimed that at the same time, and accompanying this act, statements were made by her of a positive and unmistakable character, showing an intention to elect and the fact of an election. This testimony strongly tended to show an election by the widow, and its exclusion was error. Proof that she occupied and used the entire farm, and received the rents and profits therefrom, was material to the case, and should have been received. "We cannot determine at this time how much proof will be required to .show an election, nor that the testimony offered and excluded would have been sufficient for that purpose. Parties claiming an election are entitled'to produce such competent proof.as they may have to sustain an election, and the court or jury trying the case can then determine under the rules of law whether the facts are sufficient to constitute an election.
Testimony was offered tending to show that, after the child Ella was born, her father, William B. Will-iams, generally and notoriously recognized her as his child. Á question having arisen whether William B. Williams and Emma were legally married, and as Emma inherits from her child Ella, who would in turn inherit from the father, the testimony was competent and should have been received. Even if William B. and Emma were never legally married, and if Ella was his illegitimate child, the testimony excluded was material, because under the statute illegitimate children inherit from the mother and the mother from the children, and they also inherit from the father whenever they have been recognized by him as his children, but such recognition must have been general and notorious, or else in writing. (Gen. Stat. 1897, ch. 109, §§ 21, 22; Gen. Stat. 1889, ¶ ¶ 2613, 2614.)
The testimony of Reville in respect to communications made to him by William B. Williams was ruled out, and counsel attempt to justify the ruling under the code. (Gen. Stat. 1897, ch. 95, § 333; Gen. Stat. 1889, ¶ 4417.) While Reville was a party to the action, the adverse party was not the executor, administrator, heir at law, next-of-kin, surviving partner or assignee of William B. Williams, nor was title to the cause of action acquired immediately from him, and hence the testimony does not fall within the inhibition of the statute. Similar objections to, the testimony of Emma Muse should have been overruled.
This disposes of the material questions in the case, and for the errors mentioned the judgments in the two cases will be reversed and the causes remanded for new trials. | [
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The opinion of the court was delivered by
Johnston, J. :
This proceeding involves the homestead right of Theodosia Coxen and her husband, Oscar L. Coxen, to an eighty-acre farm in Wabaunsee county. Theodosia Coxen inherited one-fourth of the land from her father and purchased a one-half interest from the other heirs. Upton claims title to the three-fourths interest acquired by Mrs. Coxen through a sheriff’s deed, which was based on a judgment and execution against Mrs. Coxen. The judgment was rendered by the circuit court of Shawnee county on January 18, 1892. On May 10, 1893, a transcript of that judgment was filed in Wabaunsee county. An execution on the judgment was issued and a levy made on the land in August, 1893, under which a sale of the land was made to Upton, the judgment creditor. It appears, however, without dispute, that one day before the transcript of the judgment was filed in Wabaunsee county, and when they held the undivided three-fourths interest in the land, Theodosia Coxen and her husband entered upon the land, claiming the same as their homestead, and have continued to occupy it as such ever since that time. On May 9, 1893, they, purchased lumber and building material, took the same upon the land, and began the erection of a house. .This house, although an inexpensive one, was completed and occupied by them until they gained possession of the old house, which was then occupied by a tenant to whom the farm had been leased by an administrator. The tenant grew a crop upon the cultivated land, and his possessoryright was not terminated until late in the fall of 1898. The Ooxens, however, under an arrangement with the-tenant, used a portion of the land for a"garden and as a pasture.
It is clear that the property became the homestead of the Ooxens on May 9, 1893, before the judgment of Upton became a lien thereon, and before the proceedings under which the sale of the property was made to him. The uncontradicted testimony is that the property was acquired with the intention of using the same as a homestead. They moved upon the property in good faith, and they were in actual occupancy of the premises one day before the judgment of Upton was filed in the district court of Wabaunsee county. It is true that the time between actual occupancy and the filing of the judgment was very short, but it was sufficient to give a priority of right to the Ooxens. There can be no question, however, about the time, as the land was acquired some time before-the actual occupancy of the same, and it is settled that the purchase of a home, with the intention to-occupy it as a homestead, followed by actual occupancy within a reasonable time, may impress it ab initio with homestead character and inviolability. (Edwards v. Fry, 9 Kan. 425; Gilworth v. Cody, 21 id. 702.)
It is contended that because of the possessory right of the tenant to the premises there was not such an occupancy by the Ooxens as to bring it within the provisions of the homestead law. The premises constituted a single tract and did not exceed in area the exemption provided by the homestead law. The fact that some one else may be temporarily upon the premises and may be actually using a portion of the same does not deprive them of the homestead character. The possession of the tenant was temporary and subordinate to the rights of the owner, and the use which he was making of the land was not inconsistent with the homestead rights of the Coxens. The tenant only remained until the end of the crop season, when he surrendered the temporary possession to the Cox-ens, who had claimed the entire premises as a homestead from the beginning. Under the interpretation which has been frequently given to our homestead provisions, the occupancy was sufficient to create the homestead right in the whole of the premises, and the plaintiff therefore acquired no right thereto upon his judgment or the proceedings taken thereunder. (Bebb v. Crowe, 39 Kan. 342, 18 Pac. 223; Hoffman v. Hill, 47 id. 611, 28 Pac. 623; Layson v. Grange, 48 id. 440, 29 Pac. 585; Pitney v. Eldridge, 58 id. 215, 48 Pac. 854.)
The judgment of the district court will be affirmed. | [
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The opinion of the court was delivered by
Johnston, J. :
Nathaniel S. Hart brought an action against the city of Kansas City, Kan., S. N. Simpson, and others, in which he alleged that Simpson and others, with their servants and employees, in digging out and hauling sand from a sand-bank in one of the alleys of Kansas City, undermined the sand-bank, leaving a large body of earth overhanging and liable to cave in and fall upon persons passing through the alley; that the defendants knew, or should have known, of the perilous condition of the excava tion, and also that small children were in the habit of playing in the alley and in and about the excavation ; that on October 18, 1894, the defendants left the excavation so made in such a negligent and dangerous condition “that suddenly and without warning it fell upon the eleven-year-old child, a daughter of this plaintiff, of the name of Daisy Hart, and did so crush, wound and bruise her that she did then and there die ; that plaintiff, by reason of the death of said child, so carelessly and negligently killed by said defendants, has been deprived of the love, care and assistance of said child, and deprived of the labor and earnings of said child from said date until she became twenty-one years old ; also, that by reason of the sudden death of said child, plaintiff’s wife, the mother of the said child, has been made sick and unable to do the housework, and plaintiff has thereby been compelled to and does keep help to do the work necessary about the house ; that by reason of the death of said child the plaintiff has been damaged in the sum of $10,000,” for which he asked judgment-. Afterward, and on motion of the defendants, the court struck out the averment of damages resulting from the sickness and loss of services of the child’s mother. The defendants answered separately, alleging a misjoinder of parties, a want of power in the plaintiff to prosecute the action, and the contributory negligence of Daisy Hart and her parents. .
The action was commenced on December 28, 1895, and came on for trial on December 9, 1896, more than two years after the injury and death of Daisy Hart. On an objection to evidence the plaintiff then asked and obtained leave to amend his petition in order that he might recover under the statute as the next-of-kin of the deceased child. By interlineation he amended, alleging the residence of Daisy. Hart at the time of her death, that no personal representative had been appointed, and that the plaintiff was her father and the next-of-kin. A demurrer of the defendants to the sufficiency of the amended petition was confessed by the plaintiff, and he then, upon leave of court, amended his petition as follows : “ That Daisy Hart at the time of her death, as hereinafter alleged, was a resident of this state, that no personal representative has been appointed for her estate, and that she left no husband surviving her, but did leave surviving her her mother and her father, who is plaintiff in this action, and that* her mother died on the 21st day of September, a. d. 1896, and the plaintiff is the next-of-kin of said Daisy Hart, deceased.”
The amendment was made on January 26,1897, and on February 5, 1897, a motion was made to strike the amended petition from the files on the ground that the amendment was a substantial departure, both in law and in fact, from the cause of action originally set up, but the motion was overruled. The objections that the amended petition constituted a departure from the original and set up a new cause of action which was barred by the statute of limitations were raised by answer and in various ways, but were not sustained. The trial resulted in a judgment rendered against the city and S. N. Simpson jointly for $4000, and the city and Simpson complain of the rulings of the court and bring them up for review in two separate proceedings in error.
Hart asks for a dismissal or abatement of the proceedings, because the city and Simpson did not unite in bringing a single proceeding for review. It would seem that both might have joined in bringing the case to this court, and in that way avoided the trouble and expense of more than one proceeding. This is certainly the better practice when it can be done, but it' is not practical where the complaining parties have distinct and conflicting interests. When the interests are not identical, or the parties against whom judgment has been rendered are really adverse toward each other, there may be good reasons why one should refuse to unite with the other. In such cases, either may make the other a defendant in error, and as such he ordinarily can fully present his errors and protect his separate interests upon a cross-petition in error in that proceeding. So far as we can discover, that practice might have been followed in this case. All parties against whom a joint judgment has been rendered are necessary parties to a review, and the failure to join them, either as plaintiffs or defendants, is generally ground for dismissal. These proceedings, however, are not subject to that objection, as Simpson has been made a defendant in error in the proceeding brought by the city of Kansas City, and the city of Kansas City a defendant in error in the one brought by Simpson. All the parties are before the court in each of the proceedings, and the fact that there are two proceedings would not warrant a dismissal of both. Possibly a question might ultimately arise as to the matter of costs, if the proceedings result against the judgment creditor, but as the parties have not been heard on that proposition it will not be determined at this time.
The first and controlling question on the merits of the case arises on the amendment of the plaintiff’s petition. .The original petition set up a claim by the plaintiff for a loss of seiwices of his daughter resulting from the negligent action of the defendants, while the amendment alleged a claim by plaintiff, as next-of-kin, for damages resulting from the death of Daisy Hart. The original petition alleged a claim under the common law, while the amended petition set forth a claim for death, the right to maintain which is given only by statute. (Civil Code, § 422; Gen. Stat. 1897, ch. 95, § 418; Gen. Stat. 1889, ¶ 4518.) As will be observed, the amendment was filed about two years and three months after the injury and death, and- actions to recover for death are barred by the statute of limitations in two years after the death occurs. It, therefore, became a material question whether the two-year period of limitation was reckoned from the date of the filing of the original petition or from the date of the filing of the amended petition. If the amendment was permissible and relates back to the filing of the original, the action was not barred. On the other hand, if it alleged a new and different right of action, which con-' stituted a departure either in law or fact, the bar of the statute is as available as if the amendment were a new and independent action. The averments of the original petition clearly indicate an attempt to state a common-law liability, and this was the view taken by the trial court, who in his instructions told the jury that the original petition upon its face merely contained allegations which .constituted a cause of action at common law, and did not set up a cause of action under the statute. While holding this view, the trial court permitted oral testimony as to the intention of the plaintiff’s attorney in drawing the pleading — whether he intended to state a cause of action under the common law or under the statute, and upon this testimony submitted to the jury'the question whether the cause of action sued on originally was the same cause of action set out in the amended pleading. In holding this view the trial court doubtless felt bound by and .followed the rule in Ball v. Biggam, 6 Kan. App. 42, 49 Pac. 678, a decision which we cannot approve.
We are clearly of the opinion that the effect of a pleading is to be determined by its averments, and not by the statements of the pleader as to what he intended that it should contain. As was said in Haley v. Hobson, 68 Me. 167, “the court looks to the declaration to ascertain what causes of action are provable under it, and not to the mind of the plaintiff when he commenced his action. The intention of the plaintiff at that time to recover upon an item not embraced, within the purview of the declaration will not avail him, nor will his want of an intention to maintain a particular claim prevent his recovery for that, if it is recoverable under the declaration.” Looking, then, at the original petition, it plainly appears to contain a complete cause of action, but quite unlike the one on which a recovery was had. The true criterion is, Did the: plaintiff so state his cause of action originally as to show that he had a legal right to recover what he subsequently claimed?
The right of action under the statute is a conditional one, and unless the plaintiff brings himself within the prescribed conditions the action cannot be maintained. (Hamilton v. H. & St. J. Rld. Co., 39 Kan. 56, 18 Pac. 57.) The action for death is distinct and independent from an action for services under the .common law, and a different measure of damages is applied. In City of Eureka v. Merrifield, 53 Kan. 794, 37 Pac. 113, which was an action by the next-of-kin to recover for a death, it was held that the petition must allege that the deceased at the time of his death was a non-resident of this state, or, if a resident of the state, that no personal representative of his estate had been appointed, and the omission of these averments was held to be a fatal defect. In that case the distinction between an action for death and the common-law action f'or injury is pointed out, and reasons are given why it cannot be maintained except under the statutory conditions. In the recent case of Walker v. O’Connell, 59 Kan. 310, 52 Pac. 894, the court, in speaking of the ruling in City of Eureka v. Merrifield, remarked that “.the decision of that case is well sustained by other like authorities. Its reasoning is entirely satisfactory to us, and it applies to all the various instances in which the rule was invoked in this case.” These essential averments were entirely absent from the original petition, and there was nothing to indicate a claim of the particular and exceptional right given by the statute until the amendment was filed, and at that time the bar of the statute against the assertion of such a claim was complete. The amendment, as we have seen, intro,duced a distinct liability, and “while the courts are liberal in permitting parties to amend their pleadings, they are not warranted in allowing amendments which substantially change the claim or defense previously-relied upon.” (Jewett v. Malott, ante, p. 509, 57 Pac. 100; Walker v. O’Connell, supra.) It is true, as a general rule, that amended pleadings relate back to the commencement of the action, but this rule never obtains where a separate and distinct cause of action is set up by way of amendment. Even though the amendment might otherwise be allowable, it is generally held that it will not be permitted when the effect will be to make the state of facts pleaded relate back so as to avoid the statute of limitations if the new cause of action would be otherwise barred. (Box v. C. R. I. & P. Rly. Co., 78 N. W. [Iowa] 694.) As the doctrine of relation rests on a fiction of law invented for the purpose of accomplishing justice, courts can hardly allow a new and different right of action which is barred to be engrafted on the original one that was not barred, and thus deprive the defendant of his defense of the statute of limitations.
A. T. & S. F. Rld. Co. v. Schroeder, 56 Kan. 731, 44 Pac. 1093, is a case quite analogous to the one under consideration. The plaintiff, who was an employee of the,railroad company and was injured in the service, brought an action alleging that the company had failed to perform its common-law duties of a master toward him. More than two years after the injury he amended his petition, alleging that the injury was the result of the negligence of a fellow servant;, and alleging a liability under the statute. The question arose there, as it does here, whether the amendment related back to the filing of the original petition, and the court reached the conclusion that they were distinct and independent causes of action and were based on .different grounds of liability, and that the amendment would not relate back to the commencement of the action. In that case.it was held that although the employee had but one grievance, which was the personal injury sustained by him, he could not, by adding an amendment which set up the statutory liability after having relied upon the common-law liability in the original petition, deprive the defendant below of the benefit of the statute of limitations as to such added cause of action.
Railway Co. v. Wyler, 158 U. S. 285, 15 Sup. Ct. 877, is a pertinent and instructive authority on this question. An action was. instituted in Missouri by Wyler for injuries caused by a fellow servant in Kansas. Within the period of limitation he brought an action stating a failure of the railroad company in its duties toward him as master — a common-law liability. After the statute had run, Wyler amended the petition, alleging the negligence of a fellow servant, and attempting to bring the case within the Kansas fellow-servant law, and the court held that the amendment introduced a new cause of action', and that it was barred by the statute. It was said :
“ If the charge of incompetency in the first petition was not per se a charge of negligence on the part of the fellow-servant, then the averment of negligence apart from incompetency was a departure from fact to fact, and, therefore, a new cause of action. Be this as it may, as the first petition proceeded under the general law of master and servant;, and the second petition asserted a right to recover in derogation of that law, in consequence of the Kansas statute, it was a departure from law to law. . . . The most common, if not the invariable, test of departure in law, as settled by the authorities referred to, is a change from the assertion of a cause of action under the common or general law to a reliance upon a statute giving a particular or exceptional right.” See Hiatt v. Auld, 11 Kan. 176; Lilly v. Railroad Co., 32 S. C. 142, 10 S. E. 932; Barker v. Anniston, Oxford & Oxanna Street Ry. Co., 92 Ala. 314, 8 South. 446; E. L. & Red River Ry. Co. v. Scott, 75 Tex. 84, 12 S. W. 995; Flatley v. Memphis & Charleston Railroad Co., 9 Heisk. (Tenn.) 230; Hurst v. Detroit City Railway, 84 Mich. 539, 48 N. W. 44.
Although the wrong or injury inflicted by the defendant may be the saíne in both cases, the amendment setting up a liability under the statute is deemed to be a new cause of action so far as the statute of limitations is concerned. In Holliday v. Jackson, 21 Mo. App. 660, the petition set up a common-law trespass. More than three years after the trespass an attempt was made to amend the petition so as to claim treble damages under a statute allowing such damages, but which prescribed a three-years’ limitation. Although both counted on the cutting and carrying away of timber, it was held that the amended petition stated a different cause of action and that the bar of the statute would apply. In Parmelee v. The Savannah, Florida & Western Railway, 78 Ga. 239, 2 S. E. 686, an action was brought against a railway company for excessive charges, which, it was alleged, were made in violation of a statute of that state. The plaintiff sought to amend by declaring on a common-law liability so as to save his claim from a special statute of limitations, but it was held that this would be to add a new cause of action by amendment, and that it could not be done. In Cotton Mills v. Railroad Co., 88 Ga. 441, 10 S. E. 118, an action was brought against the railroad company on a common-law liability, and an attempt to amend it, claiming a recovery on a statutory liability, was not allowed. See also Lambard v. Fowler, 25 Me. 308; Fairchild v. Dunbar Furnace Co., 128 Pa. St. 485, 18 Atl. 443; Melvin v. Smith, 12 N. H. 462; Hausberger v. Pacific Railroad Co., 43 Mo. 196; Newton v. Allis, 12 Wis. 378.
It is true that the original petition and amendment both alleged the same injury, but they are founded on entirely different rights, and testimony which would support the one would not support the other, while different rules apply in the measurement of damages in the two cases. It is clear that the amendment at least constitutes a departure from law to law, as set out in the authorities above quoted, and therefore we are forced to the conclusion that the cause of action set up by the plaintiff against the defendants in the amendment, and upon which a recovery was obtained, was barred by the statute of limitations.
The judgment against the defendants will be reversed and the causes remanded for further proceedings. | [
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The opinion of the court was delivered by
Johnston, J. :
This proceeding presents the question as to when the statute of limitations applies to the liability of a stockholder for.debts due from a defunct corporation. Samuel C. King was a stockholder in the Hyde Park Investment Company, organized on May 9, 1887, to plat and subdivide 173^ acres of land that had been purchased near the city of Atchison, and to sell the same. Only a part of the purchase-money for the land was paid by the corporation, and the unpaid portion, $7500, stood as a mortgage lien against the land. No part of this debt was ever paid by the company. The land was never platted or put on the market for sale in lots or blocks, nor did the company ever sell any portion of the same. It never at any time owned any property except this land, nor did it ever pay any taxes on the same. The First National Bank of Atchison became the owner of the mortgage debt in June, 1887, and on February 28, 1889, it commenced an action against the company and others to recover judgment and to foreclose the mortgage. In June, 1890, the bank obtained a judgment against the company for $9450 and a decree foreclosing the mortgage. In accordance with the decree the mortgaged property was offered for sale four times, beginning on February 9, 1891, but it was not sold for want of bidders. On October 1, 1891, on the fifth order of sale, the property was sold for $1334, it being more than two-thirds of the appraised value of the land, the property having theretofore been appraised at $2000. A general execution was taken out on November 19,1895, but no property could be found on which to levy, and in fact the company has owned no property of any kind or character, except the land in question, which was subject to levy, and there is now due and remaining unpaid on the judgment in favor of the bank $14,343.34.
It appears that the company elected officers immediately after the organization in May, 1887, and no other election of officers was ever held, nor was there any meeting ever held, either of stockholders or directors of the corporation, after October 6, 1888. Prior to the trial of the mortgage proceedings in 1890, the attorney for the bank had possession of the books and records of the company, and, after that trial at least, the bank knew that the company was not carrying on the usual and ordinary business for which it was organized. This proceeding to charge King as a stockholder was begun February 27, 1896, and the trial court held that it was barred by the three-years’ statute of limitations.
A correct conclusion was reached. It is shown that the company practically suspended business in 1888, and when a corporation suspends or ceases business for more than one year it is deemed to be dissolved within the meaning of the statute so far as to enable creditors to proceed against stockholders on their individual liability. (Gen. Stat. 1889, ¶ ¶ 1200, 1204; Gen. Stat. 1897, ch. 66, §§ 45, 49.) For that purpose a suspension of business for more than a year is equivalent to a dissolution by expiration of the time limited in the charter of the company or to a judgment of a court of competent jurisdiction decreeing a dissolution. When that occurs a right of action against the stockholders at once accrues in favor of the creditor, and from that time the statutory period of limitation is to be reckoned. “ The liability of the stockholders being one created by statute, the period of limitation upon the right to enforce it was three years.” (Cottrell v. Manlove, 58 Kan. 405, 49 Pac. 519.) This action was not instituted until more than seven years after the suspension of business, and clearly it was not in time.
The contention of the plaintiff in error that a corporation is not deemed to be dissolved after a suspension of business for one year, and that the right of action against .the stockholders only accrues after it has been shown in some judicial proceeding that there has been such suspension of business, is not sound. It is the fact of the suspension that operates and is treated as a dissolution, and a judicial proceeding and deter mination is not essential to the remedy of the creditor. Plaintiff in error insists that this provision was intended to extend the rights of the creditor, and was made for his benefit. This claim may be conceded, but while it gives him an earlier right against the stockholder, it carries with it the obligation or necessity of availing, himself of the remedy within three years after the time it is open to him. (Sleeper v. Norris, 59 Kan. 555, 53 Pac. 757.) The fact that there is another remedy based on the insolvency of the corporation does not warrant the creditor in postponing the institution of proceedings more than three years after the time when the right of action first accrues. It was held in Cottrell v. Manlove, supra, that “the creditor cannot extend the limitation upon that right by neglecting to sue direct, and in lieu of so doing, adopting the slower process of judgment against the corporation and motion for execution against the stockholders.” The condition of the bank would be no better if we assumed that it proceeded under paragraph 1192 of the General Statutes of 1889 (Gen. Stat. 1897, ch. 66, § 50), and that the right of action accrued upon the rendition of the judgment against and the insolvency of the corporation. The judgment was rendered, as we have seen, in June, 1890, and the mortgaged property was sold pursuant to the judgment on November 4, 1891. At that time, at least, the plaintiff was aware of the dormancy and insolvency of the corporation, but it did not take out -,a general execution on the unsatisfied judgment until the latter part of 1895. At any time after the sale of the property the bank was at liberty to perfect its right against the stockholders under that provision of the statute by the issuance of an execution, and it could not enlarge the period of limitation by indefinitely postponing the taking out of an execution. This precedent action rested entirely with the bank, and it is held that “a creditor who must take affirmative action to obtain a right or remedy cannot safely sit still when he might act, nor long delay the taking of such initiatory steps as will enable him to maintain the action ; and where he fails to act or take the essential steps within a reasonable time, the statutory limitation will run.” (Kulp v. Kulp, 51 Kan. 341, 32 Pac. 1118; A. T. & S. F. Rld. Co. v. Burlingame Township, 36 id. 628, 14 Pac. 271; Rork v. Comm’rs of Douglas Co., 46 id. 176, 26 Pac. 391; Bauserman v. Charlott, 46 id. 480, 26 Pac. 1051; Harrison v. Benefit Society, 59 id. 31, 51 Pac. 893.)
In Bauserman v. Blunt, 147 U. S. 647, 13 Sup. Ct. 466, where this question was under consideration, if was held that “the bar of the statute cannot be postponed by the failure of the creditor to avail himself of any means within his power to prosecute or to preserve his claim” ; and in Palmer v. Palmer, 36 Mich. 487, it was remarked that “ it is no stretch of language to hold that a cause of action accrues for the purpose of setting the statute in motion as soon as the creditor by his own act and in spite of the debtor can make the demand payable.” If the taking out of a general execution was necessary to give the bank a right of action, the act rested wholly with itself, and the step could be taken in spite of the debtor. If it desired to protect its rights, the steps should have been taken within a reasonable time, and the failure to avail itself of its remedy cannot, as we have seen, operate to enlarge the statutory limitation. This action was not brought within three years after these preliminary steps might reasonably have been taken, and in any view of the case this proceeding must be deemed to be barred.
The judgment of the district court will be affirmed. | [
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The opinion of the court was delivered by
Allen, J. :
Thi^is a proceeding against the mayor and councilmen of the city of Erie to compel them to levy taxes to pay a judgment rendered by the district court of Crawford county in favor of David Wilson, the plaintiff’s intestate, against the city of Erie, which was affirmed by this court. (City of Erie v. Phelps, 56 Kan. 185, 42 Pac. 336.) It -appears from the agreed statement of facts that an execution on the judgment has been issued and returned wholly unsatisfied ; that a demand has been made on the city officers to levy a tax for the payment of the. judgment; that the total taxes levied on the property in the city of Erie for the year 1898 amounted to 6T\- per cent., of which one per cent, was city tax for general revenue. This is the only city tax. The total assessed valuation of the property of the city for the year 1898 is $89,340. It appears that all of the one per cent, levy for city purposes is required to meet the current expenses of the city, and that no part of it can be applied to the ‘payment of plaintiff’s judgment. The question to be determined is whether it is the duty of the city officers to make an additional levy for the purpose of paying this judgment. The contention on the part of the city is that there is no statute making it the duty of the mayor and councilmen to make the levy, and that they can only be compelled by mandamus to perform a clear and legal duty. Erie is a city of the third class. The following are the statutory provisions relating to the power and duty of city officers in levying taxes so far as they affect this case. By section 53, chapter 38, General Statutes of 1897, the mayor and council are authorized:
“1st. To levy and collect taxes for general-revenue purposes, not to exceed ten mills on the dollar in any one year, on all the real, mixed and personal property within the limits of said cities taxable according to the ■laws of this state.”
“ § 75. At no time shall the levy of all the city taxes of the current year exceed four per cent, of the taxable property of the city as shown by the assessment books of the preceding year.”
“ § 78. The council may appropriate money and provide for the payment of the debts and expenses of the "city, and when necessary may provide for issuing bonds for the purpose of funding any and all indebtedness now existing or hereafter created of the city, now due or to become due. . . ' (Gen. Stat. 1889, ¶ ¶ 959, 965, 960.)
The power to issue bonds is restricted, however, by the succeeding provisions of the last section, and requires instruction by vote of the electors of the city as a condition precedent to their issuance. By other statutory provisions it is made the duty of the city officers to levy taxes annually to pay interest and principal on all bonds of the city. /
Construing all these provisions together they amout to this, that for general-revenue purposes the tax levy is limited to one per cent. For all city purposes it is limited to four per cent. The four-per-cent, limitation has no reference to state, county or any other than city taxes. The council is authorized by section 78 to provide for the payment of the debts of the city. A judgment is of course a debt. Can it be said that it is optional with the council to provide for its payment or not, as it may elect? There would seem to be very little advantage in going to the trouble and expense of obtaining a judgment against the city if no provision for its payment can be compelled. Of course there must be legislative authority before a tax can be levied. While the language of section 78 is in form permissive, it is a rule of very general application that where public authorities are authorized to perform an act for the benefit of the public,,or for an individual who has a right to its performance, the w.ord “may” is interpreted as meaning “must.” The language of the statute is that the council “may” provide for the payment of the debts of the city. .The creditors are lawfully entitled to payment. It is, therefore, not optional with the city officials whether they will or will not provide for their payment, and tlae word “may,” though merely permissive in its ordinary signification, is mandatory as to the payment of judgments against the city. This was the conclusion reached by the court of appeals in the case of Stevens v. Miller, 3 Kan. App. 192, 43 Pac. 439, construing the law relating to cities of the second class, which is precisely the same as that under consideration, and accords with what was said in the opinion in the case of Stewart v. Town Co., 50 Kan. 553, 32 Pac. 121.
The statute allows the city the. option of issuing bonds and funding the debt. This option cannot be exercised by the council without the authority of a vote of the people; but the existence of the option does not destroy the plaintiff’s rights. The city must pay. It may fund by issuing bonds, but, if it do so, taxes must ultimately be levied to pay the bonds. It merely amounts to a postponement of the time of payment. The assessed valuation of the city is not sufficient to admit of the payment of the judgment by one levy within the limits allowed by law. Three per cent, in addition to the levy for general-revenue purposes might be made ; this, however, would make the rate of taxation very high. There is some measure of discretion in awarding writs of mandamus, and they ought not to be allowed to operate .oppressively. We think that a levy of two per cent, per annum for the purpose of paying this judgment, in addition to the levy for general-revenue purposes, is as much as ought to be required, but this must be continued each year until a sufficient amount has been raised to discharge the judgment. As it is now too late to levy taxes for the year 1898 and too early to levy them for the year 1899, the city will be'granted until the 1st of June, 1899, to exercise its option of paying the judg ment by issuing refunding bonds ; but if it fail to do-so, then a peremptory writ will issue directing the, mayor and councilmen, and their successors in office, to levy, annually a tax of two per cent, on all the taxable property in the city for the purpose of paying the plaintiff’s judgment. | [
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The opinion of the court was delivered by
Johnston, J.:
This is a controversy between the preferred and unpreferred creditors of the Wichita Implement Company, a corporation which had been in a failing condition for some time prior to November 21, 1895. On that day the corporation preferred one of its creditors, the Grand De Tour Plow Company, by mortgaging and transferring to that company a considerable part of its property and assets ; and at the same time some other creditors were in like manner preferred. In this proceeding the unpreferred creditors challenged the validity of the mortgage and the transfer that was made to the Grand De Tour Plow Company, and asked for an accounting by that company of the property so mortgaged and transferred to it. The officers of the Wichita Implement Company realized the failing condition of the corporation and its inability to meet its obligations, and on November 16, 1895, a representative of the company visited the Grand De Tour Plow Company for the purpose of obtaining an extension of time, knowing that unless an extension' was granted it could no longer carry on its business. The extension was refused, and oh November 21, 1895, the mortgage in question was executed, and the transfer of the property and assets was made to the Grand De. Tour Plow Company. After the transfer was made, the Wichita Implement Company actually quit and went out of business, and has never since resumed.
The trial court set aside the chattel mortgage and other conveyances made by the implement company to the Grand De Tour Plow Company, holding that an insolvent corporation has no power, while in such condition, to transfer its property, or any part thereof, to one or more creditors to secure them, to the exclusion of others.
After the action was begun, the court, upon the application of the defendants in error, appointed a receiver to take possession of the property the transfer of which was sought to be set aside, and it is now contended that this proceeding should be dismissed because the receiver has not been made a party hereto. The receiver was not a party to the suit in any sense, and his name did not appear in any of the pleadings. He was not appointed as the representative of the insolvent corporation with authority to take possession of all its property and to carry on and conclude its business, but was a mere stakeholder, to keep posses sion of the property during- the pendency of the litigation, and to distribute and dispose of it as the judgment-of the court might direct. The assets placed in his custody were only a fraction of the property of the insolvent corporation, and, instead of standing as its representative, he was, rather, an officer of the court,, entrusted with the possession of the property during' the pendency of the suit, in which he had no interest whatever. Having no interest in the property, nor any standing in the case as a party, he had no right to appeal or to prosecute proceedings in error, and it was not necessary or proper to make him a party in this proceeding.
On the merits, the question presented is whether an insolvent corporation, which has made an unsuccessful attempt to obtain further extension of credit and has determined to quit business, may prefer one or more of its creditors. Although there is a diversity of opinion upon the question, the great weight of authoritj’ is that a corporation has the same power to make preferences among its creditors that a partnership or an individual has. Most of the courts which deny the right to prefer do so upon the theory that the assets of an insolvent corporation constitute a trust fund which must be applied pro rata to the. payment of all its creditors. Insolvency alone, however, does not operate as a dissolution of the corporation, nor does it create a specific lien or direct trust, in the corporate assets in favor of the creditors. The1 trust-fund doctrine has no place in the' common law,, and the greater number of the courts which have-given the subject consideration, as well as the reason of the law, unite in rejecting its application. It is true that the property of an insolvent corporation has, been sometimes referred to in this and other courts', as a trust fund,'but it was never intended by these expressions that by reason of insolvency alone the corporation lost the right to control and dispose of the property, or that it then became impressed with a trust. In Gould v. Railway Co., 52 Fed. 680, Judge Caldwell, in speaking,of the effect of insolvency, said :
“It is undoubtedly true that the property of corporations is, in one sense, a trust fund for the payment of its debts ; but this rule means no more than that the property of a corporation cannot be distributed among its stockholders or applied to any purpose foreign to the legitimate business of the corporation, until its debts are paid. The rule, so far as it relates to the payment of debts, is satisfied whenever the property of a corporation is applied to the payment of any of its bona fide debts. The rule, as has been often pointed out, does not prevent a corporation, whether solvent or insolvent, from making preferences among its creditors, and exercising in good faith absolute dominion over its property, in the conduct of its legitimate corporate business, so long as its right to do so is not restrained by statute or by judicial proceedings.”
On the same subject, the supreme court of the United States held that it was a trust fund only in the sense that the property of the corporation must first be appropriated to the payment of the debts of the company before any portion of it can be distributed to the stockholders, and not that the property is so affected by the indebtedness of the company that it cannot be sold, transferred or mortgaged to bona fide purchasers for a valuable consideration, except subject to the liability of being appropriated to pay that indebtedness. (Fogg v. Blair, 133 U. S. 534, 10 Sup. Ct. 338.)
In Hollins v. Brierfield Coal and Iron Co., 150 U. S. 371, 14 Sup. Ct. 127, Mr. Justice Brewer, in speaking of the limited sense in which the property of a corporation is spoken of as a trust fund, said :
“ The same idea of equitable lien and trust exists to some extent in the case . of partnership property. Whenever, a partnership becoming insolvent, a court of equity takes possession of its property, it recognizes the fact that in equity the partnership creditors have a right to payment out of those funds in preference to individual creditors, as well as superior to any claims of the partners themselves. And the partnership property is, therefore, sometimes said, not inaptly, to be held in trust for the partnership creditors, or, that they have an equitable lien on such property. Yet all that is meant by such expressions is the existence of an equitable right which will be enforced whenever a court of equity, at the instance of a proper party and in a proper proceeding, has taken possession of the assets. It is never understood that there is a spe,cific lien or a direct trust.”
Until the assets are properly brought within the jurisdiction of a court of equity the dominion and control of the same remain in the corporation, and it may make any honest disposition of .them. In the absence of statutory restrictions a corporation has the same control and power of disposition of its property that a natural person has, and an insolvent corporation has the power and right to prefer its creditors in the same way and under the same circumstances as an insolvent individual might do. Nothing in our statute affords any ground for a distinction between natural and artificial persons, as appears to be the case in some of the states where the right of preference is denied. A good deal may be said in opposition to the policy of allowing even a natural person when insolvent to make a preference among his creditors, but that common-law doctxfine is firmly established in the jurisprudence of this state, and no good reason has been given for excepting an artificial person or corporation from its operation.
The right of an insolvent corporation to make such preference has received much consideration and elaborate treatment by the courts and law writers, and a multitude of cases bearing upon the subject have been cited; but a review of them is not practicable or necessary. We deem it sufficient to call attention to 7 American and English Encyclopedia of Law (2d ed.), 742, where the authorities are collected, from which the author deduces the well-established doctrine that <(in the absence of charter or statutory restrictions, and in the absence of actual fraud, every corporation, though insolvent, and though it has ceased, or determined to cease, doing business, may prefer certain creditors over others whenever a natural person could do so.” In Hays v. Citizens’ Bank, 51 Kan. 535, 33 Pac. 318, it was held that the directors and managers of a corporation, who*were creditors of the same, could not prefer themselves, leaving the question undecided as to whether other creditors might be preferred. The ground of that decision is that the directors are the agents of the stockholders and creditors, and that their interests as creditors would be inimical to their duties as agents. They occupy a fiduciary relation to the creditors and stockholders and may not take advantage of their superior information and opportunity to gain an advantage over those whose interests they are guarding; nor are they permitted to contract with themselves as they may with third parties. The determination that they could not put themselves in a position antagonistic to those for whom they were acting is no recognition of the trust-fund theory.
The judgment will be reversed and the cause remanded with directions to enter judgment upon the agreed facts in favor of the plaintiff in error. | [
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The opinion of the pourt was delivered by
Doster, C. J. :
This was an action by James S. Taylor against the Atchison, Topeka & Santa Fe Railway Company to recover damages for bodily injuries negligently inflicted upon him as an employee of the company in the territory of Oklahoma. The plaintiff was a brakeman on one-of the defendant’s freight-trains. His train was going north, and had stopped at the city of Guthrie to do some switching and other necessary work. A part of the work to be done was the moving of some freight-cars which had been left standing on a side-track before the train upon which plaintiff was employed arrived. .The draw-bar at one end of one of these cars had been pulled out so that it could, not be coupled in the ordinary way. It was fastened to another car by means of a. chain which, as arranged, had more “ slack” or a greater length than should have been allowed to it. The plaintiff did not observe the condition of this car-nor the fact that it had been fastened to the other by means of the chain. In the performance of his .duties he was riding upon the top of this car as it was pushed by the engine. The engineer stopped quite suddenly. The slack of the chain before mentioned ran out to its full length. This at once arrested the motion of the car, causing it to rebound in the opposite direction. This unexpected occurrence threw the plaintiff off his balance and against another car, causing the injuries of which he complains.
The negligence charged in the petition was that of the enginemen in stopping the engine and attached cars with unnecessary suddenness. The case, however, was not tried upon the theory of their negligence, but was tried upon the theory of the negligence of the railroad company as master for allowing the broken car to stand upon the side-track without repair and without warning to the plaintiff of its dangerous condition. Counsel for both parties admit in their briefs that the case was tried on this theory and such is also manifest from the record. We shall, therefore, pay no attention to the variance between the plaintiff’s petition and his evidence.
The jury found a verdict in the plaintiff’s favor and in addition thereto made special findings of fact, one of which was that the common-law liability of the master for injuries received by a servant in his employ alone obtained in Oklahoma; that is, the statutes of that territory give no right of action to an employee for injuries negligently inflicted upon him by a coemployee or fellow-servant. The jury also found that the enginemen were not guilty of negligence in suddenly stopping the engine, so that, even if they were to be regarded in law as vice-principals, or in other words as the master, no recovery could be had because of their conduct. They also found that “the car in question had been out of repair long enough, under the rules of the company, for the servant of the road whose duty it -was to see to repairs, by the exercise of ordinary care, to have had the car repaired,” but another finding stated that there was no evidence as to how long the car in question had been out of repair. This last-mentioned finding was in conformity to the truth. There was no evidence as to the time when the draw-bar pulled out; no evidence as to the time when it had been chained to the other car ; no evidence as to when it had been set on the side-track at Guthrie, and no evidence as to how long it had remained there. Nor was there any evidence as to the existence of any rules of the company requiring its servants or employees to observe and report the damaged condition of cars from which a presumption of previous knowledge by the superior employees of the company could be drawn. At the time of the trial, but not at the time of the accident, the company had a rule upon the subject. The jury also found that at the time of the accident it was the duty of conductors to see that cars broken as the one in question was were properly chained for the purpose of switching in the yards. The jury also specially found as follows :
“Q,. 11. Were any servants or agents of the defendant company guilty of negligence directly contributing to plaintiff’s injury? A., Yes.
“Q. 12. If you answer the last question ‘yes,’ state what was the official position of said servants or agents of defendant company. A. Conductor.”
“Q,. 36. Was not the plaintiff, and all other brakemen and conductors on the division, hired, among other things, for the purpose of chaining up and bringing to a place' where they could be repaired cars in which the coupling apparatus had become so defective that they could not be repaired by the train crew? A. Yes.
“Q,. 37. Was the draw-bar in question so out of repair that it could not ordinarily be repaired by the train crew of which the plaintiff was a member? A. Yes.
“Q,. 38. If you answer the last question ‘no,’ was the train crew, or either member of it, guilty of negligence directly contributing to the plaintiff’s injury in failing to repair the draw-bar? A. No evidence.”
It is difficult to tell from these findings whether the jury meant to impute negligence to the conductor of the train with which the plaintiff was working, or to the conductor of the train in which the car became broken and from which it was set out on the side-track at Guthrie. It is, however, to be assumed that the former one was meant and counsel on both’sides have so argued. The fact, however, as shown by the evidence, was that this conductor knew nothing whatever about the damaged condition of the car. He was at the station-house at the time the accident occurred, and it is certainly not to be presumed that his duties required him to examine this and all other cars his subordinate employees were required to handle to determine for them whether such cars were in a fit and safe condition. One of the jury’s findings and an answer made by one of the witnesses would seem to charge a car inspector at Arkansas City, Kan., with knowledge of the broken condition of the car in question, but from the whole óf the evidence it is plain that Ms knowledge was acquired subsequently to tbe time of the accident. The case, therefore, may be generalized in statement of facts as follows : A railroad-car became broken and dangerous to handle along the line of defendant’s road where the common law of the master’s non-liability for injuries to his servants except through his own negligence obtained. A servant without fault upon his own part was injured in handling the car. There was no evidence showing knowledge or opportunity to acquire knowledge upon the part of the master or any of his vice-principals of the dangerous condition of the car, nor any evidence as to how long the car had been in that condition.
Under such a state of facts the common law does not hold the master liable for the servant’s injuries. The rule is plainly and forcibly stated in Wood on Master and Servant, section 882 :
“ The servant seeking to recover for an injury takes the burden upon himself of establishing negligence on the part of the master and due care on his own part; and he is met by two presumptions, both of which he must overcome in order to entitle him to a recovery : First, that the master discharged his duty to him by providing suitable instrumentalities for the business, and in keeping them in condition, and this involves proof of something more than the mere fact that the injury resulted from a defect in the machinery. It imposes upon him the burden of showing that the master had notice of the defect, or in the exercise of that ordinary care which he is bound to observe he would have known of it. When this is established he is met by another presumption, the force of which must be overcome by him, and that is, that he assumed all the usual and ordinary hazards of the business. To overcome the force of this presumption he must show that the injury did not arise from an obvious defect in the instrumentalities of the business, or from a. hazard incident to the business, but from causes that were previously unknown by him to exist, or from extraordinary causes, and not from causes that he ought to have foreseen and can be fairly said to have assumed, or some legal excuse for taking the risk, if known to him, which strips his act of the imputation of negligence and overcomes the presumption that he voluntarily took the risk upon himself. These are absolute burdens imposed upon the servant, and he is not relieved from their force by showing that an injury resulted to him in consequence of defective or improper instrumentalities employed in the business, but must go farther and show that the defects producing the injury were not known to him, but were known or ought to have been known to the master, or that he performed the service at the risk of the master.”
To supply the lack of evidence in such cases as this there is no presumption of knowledge by the master. In actions by passengers there is a presumption of knowledge by the master — the railroad company — of defective and dangerous conditions of its machinery and cars growing out of its ownership and control over them, but not so in the case of an employee or servant.' In the case of K. P. Railway Co. v. Salmon, Adm’x, 11 Kan. 83, which was an action by a railway employee, the district court had instructed the jury as follows : “I instruct you that the mere naked, unexplained fact of a collision of two trains of cars operated by the same railroad company raises the presumption of negligence on the part of the company.” This was held to be error, Mr. Justice Valentine in the opinion saying:
“All this would have been correct if the deceased had been a passenger, but it was certainly incorrect if the deceased was only an employee of the company. The said collision was the only proof of negligence on the part of the railroad company introduced on the trial. A collision always presumptively shows negligence ; but whether negligence of the company or negligence merely of some one or more of its officers, agents, or employees, is the important question in this case. As between the railroad company and a passenger, the negligence of any officer, agent, employee or servant of the company is the negligence of the company itself; but as between the railway company and one of its employees, the negligence of another employee — a coemployee — is not at all the negligence of the company. (Dow v. Kansas Pacific Rly. Co., 8 Kan. 642.) Therefore, while a collision presumptively proves negligence on the part of the company as between the company and a passenger, yet it never proves negligence on the part of the company as between the company and one of'its employees. It is a general rule that one employee does not represent the principal any more than any other employee, and negligence between co-employees is not at all the negligence of the principal. This rule has its exceptions. As to railroad companies, the general manager, the general superintendent, the general officer for the employment or discharge of the other agents and servants of the railway company, or, indeed, any other general officer, would probably be the representative of the company, in fact the company, as between the company and all other persons, whether such persons were employees or not. But proof of a collision does not at all show negligence on the part of any one of these general officers. It tends more properly to show negligence on the part of the brakeman, the fireman, the engineer, the conductor, or some other inferior officer, agent or servant of the company who has a more close and direct connection with the collision.”
The principle thus decided is applicable to the case before us. The judgment of the court below is reversed and a new trial ordered. | [
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The opinion of the court was delivered by
Doster, C. J. :
This was an action brought by the Mutual Benefit Life Insurance Company against William T. Corlett, J. E. Jarvis and others to foreclose a real-estate mortgage. Jarvis was the owner of the land by conveyance from the mortgagor. He filed an answer averring bis ownership and setting up the statute of limitations as a defense to the plaintiff's petition, and praying that, in consideration of the bar of the statute pleaded, the plaintiff's mortgage be canceled and his title quieted as against the plaintiff's assertion of a mortgage lien. Before trial the plaintiff dismissed its action, whereupon Jarvis demanded a trial upon his answer. This the court refused and dismissed the answer. Error is now prosecuted to this court.
The plaintiff in error contends that his answer was a counter-claim, or set-off, and that he was entitled to a trial under the provisions of section 394 of the civil code, chapter 95, General Statutes of 1897, notwithstanding the dismissal of the action by the defendant in error. This contention is 'unfounded. Counterclaims and set-offs must be causes of action existing in favor of defendants. (Civil Code, §§ 95-98, ch. 95, Gen. Stat. 1897.) The statute of limitations does not constitute a cause of action. It constitutes a defense to a cause of action. (Bowman et al. v. Cockrill, 6 Kan. 338.) It is a weapon of resistance, not of attack. A defendant cannot attach to his answer of the statute of limitations a prayer for affirmative relief, and thereby so change the character of his pleading as to call it a cross-petition, or a set-off, or a counter-claim. Under such an answer the defendant’s evidence would not go to the proof of a right in himself, but only to the disproof of the plaintiff’s claim of right. It would be nowise affirmative of anything, but would be entirely negative in its character. It would not build up anything; on the contrary, it would simply tear down. A counter-claim or set-off is not a negation ; it is an affirmation, and the evidence receivable under it must tend to the establishment of the defendant’s rights, not the denial of the plaintiff’s claims. The orders of the court below were right and its judgment is affirmed. * | [
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The opinion of the court was delivered by
Johnston, J. :
This is a prosecution for perjury, in which.John C. Williams is charged with swearing falsely in a proceeding wherein the city of Salina was plaintiff and Williams was defendant, on a charge of unlawfully assaulting and beating another and of disturbing the peace and quiet of the city. It is alleged that it became material to prove in the proceeding before the police court whether, at the time of the commission of the offense charged against Williams, he struck J. C. Stevens with a pistol, and whether the said Williams had a pistol in his hand and in his pocket and on his person at the time of the alleged assault. Williams is then charged with falsely swearing and testifying in that case “ that he, the said John C. Williams, did not, at the time' of the commission of the offenses charged in said complaint, strike the said J. C. Stevens with a pistol, and that he, the said John C. Williams, did’ not, at any time during the day of February 23, 1899, have a pistol in his hand or in his pocket or on his person,” whereas in truth and in fact Williams at the time did have a pistol in his hand and in his pocket and on his person, and did strike .Stevens therewith, thereby committing, as alleged, wilful, felonious and corrupt perjury. Although the sufficiency of the information is challenged, it appears to us to state an offense, and with, a sufficient degree of certainty. The statements on which perjury are assigned are alleged and appear to be material, and even if some of the statements were immaterial, it would not vitiate the information.
An application for a change of venue was properly overruled, and we discover no error in the denial of the defendant’s application for a continuance of the trial of the cause.
In opening the case to the jury, the county attorney stated that, while Williams was convicted in the police court,Tie took an appeal to the district court, where he was finally acquitted of the charge of assault and battery before a jury, and that the district court held in that case that the testimony was insufficient to sustain the charge of disturbing the peace. After the statement was made, the defendant moved for a discharge, claiming that the acquittal mentioned was in effect an adjudication of the truthfulness of the testimony, and that he could not afterward be put upon trial for perjury. The motion was denied, and counsel referred to a ruling of the United States district court for the district of Michigan as an authority against the refusal of the motion. ( United States v. Butler, 38 Fed. 498.) In that case the defendant, who had been acquitted upon a charge of selling liquor without the payment of the special tax required by law, was prosecuted for perjury for swearing that he did not sell the liquor, and it was held that his acquittal of selling liquor was an adjudication in his favor on the subsequent trial for perjury, and that the government could not show that his sworn statement was false. It will be observed, however, that the issues there were more nearly identical than in the present case. The defendant swore that he did not sell liquor, and the finding of the jury was that he did not sell it. So it was held that a person could not be convicted of perjury in swearing to a state of facts which a jury in another case against him had found to be true. Even in that case it was said that if the defendant had sworn that he had paid his tax and had been acquitted by the jury upon the ground that he did not sell the liqnor, the issue would have been different. So here the defendant may have had a pistol in his hand or on his person at the time of the alleged assault without being guilty of the offense charged against him in the police court, and he may even have struck Stevens with the pistol and still have been acquitted on the ground that it was necessary for his own defense; and therefore there is not the identity of issues that there was in the Butler case. The decision in that case, however, does not meet with approval in the courts of last resort. In State v. Caywood, 96 Iowa, 373, 65 N. W. 385, the supreme court of Iowa held “that a judgment of acquittal rendered in the case in which the alleged perjury was committed was not admissible on a trial for perjury to show the guilt or innocence of the defendant.” In Hutchinson v. The State, 33 Tex. Crim. 67, 24 S. W. 908, an appellant was arrested on a charge .of an aggravated assault and battery by striking another with his fist. On the trial he took the stand in his own favor and swore that he did not strike her. Although acquitted of that charge, he was indicted for perjury, and it was held that the judgment of acquittal was not admissible to show the guilt or innocence of the defendant of the charge of perjury. See also Kitchen v. The State, 26 Tex. App. 165, 9 S. W. 461; Underhill’s Criminal Evidence, 469, note 5. No error was committed in denying the motion.
In the information it was alleged that the pex’juxy was committed in an action pending before “ T. B. Chapman, who was then and there the duly elected, qualified and acting police judge of the city of Salina.” It also contained an averment that he was an officer having competent jurisdiction to' hear and try the case. The proof, when offered, showed that Chapman was appointed by the city council to fill a vacancy, and in the manner authorized by statute. It is claimed that an allegation of an election is descriptive and must be proved strictly as alleged, and that the variance in the case is reversible error. In the popular sense an election is a choice which several persons collectively make of a person to fill an office or position, while an appointment is a choice for such office or position by some single officer or person. As the selection in this case was made by the several members of the city council, it is argued that it is not inappropriate to say that Chapman was elected. The language of the statute, however, furnishes grounds for the claim that there is a distinction between a choice of the police judge by the electors and a choice by the council, wherein the- first is spoken of as an election .and the second as an appointment. (Gen. Stat. 1889, ¶ ¶ 769, 842; Gen. Stat. 1897, ch. 37, §§ 18, 99.) Assuming that there is a substantial distinction, we are well satisfied that the variance in this case is an immaterial one. While it is necessary to describe the officer who administered the oath, the commission of the officer „or the means by which authority was conferred on him is not an essential feature of the offense charged. It is enough to allege and show that the officer had the authority or the tribunal had the jurisdiction exercised by either. Strictness of proof is required in all matters which constitute the essence of the offense, but such proof is not required as to im material averments and those which are not descriptive of the offense. The principal element of perjury is the false swearing, and whether the police judge of Salina, who was alleged to have authority, was appointed or elected could not affect the truth or falsity of the sworn statements of the defendant. (16 Encycl. Pl. & Pr. 325.) For the same reasons the admission of .the official bond of the police judge, which contained a recital that he was elected to the office, was without prejudice to the defendant.
There is nothing substantial in the objection that the proceedings in the police court were improperly received in evidence. It is evident that the record in the former case was received in this to show the issues therein presented and the proceedings had, and the jury were instructed that they could not consider the record as proving or tending to prove that Williams testified falsely upon the trial in the police court.
The other objections are not deemed to be material nor to require special comment. The judgment of the district court will be affirmed. | [
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The opinion of the court was delivered by
Doster, C. J. ;
This was an action brought by A. B. Green, as plaintiff, against the receivers of the Atchison, Topeka & Santa Fe Railroad Company for damages for bodily injuries sustained on account of the alleged negligence of the employees of the company itself at a time prior to the appointment of the receivers. The court below first ruled that the action against the receivers could not be maintained for the tort of the company committed prior to their appoint ment. It subsequently sustained the plaintiff’s motion for a new trial upon the sole ground that the action could be maintained and that it had erred in holding to the contrary. From the order granting the new trial the defendants below prosecute error to this court. The case can be easily determined. The court was wrong in its first conclusion and right in its last one.
It will be observed that the action was not brought under the act of congress authorizing suits against receivers without leave of the courts appointing them. That act (U. S. Stat. L., ch. 866, §3) provides that a receiver “may be sued in respect to any act or transaction of his. in carrying on the business connected with the property, without the previous leave of the court in which such receiver was appointed.’’ Inasmuch as the.tort of the company or its employees committed previous to the appointment of the receivers was not their act, the statute, quoted furnishes no basis for the maintenance of the action, but the right to maintain it must exist, if at all, in the general principles of equity and in the practice governing the appointment and control of receivers. Under the facts of the case these principles of equity and rules of practice are ample for the maintenance of the action. The injuries complained of by the defendant in error, plaintiff below, were sustained in October, 1893. In December following the property and affairs of the railroad company were placed by the United States circuit court in the hands of receivers, appointed at-the suit of the trustee of the company’s mortgage bondholders. A portion of the order appointing the receivers and directing them in the administration of their duties is as follows : . <\
“ The receivers herein are therefore further directed to pay all just and legal debts, demands and liabilities due or owing by the defendant company which accrued or were incurred for work, labor, materials, machinery, fixtures and supplies of every kind and character, done, performed or furnished in the improvement, equipment or operation of said road and its branches, and all just and legal liabilities incurred by the said company in the transportation of freight and passengers, including damages for injuries to employees or other persons and to property, which have accrued, or upon which suit has been brought or was pending, or judgment rendered, within twelve months last past.
“The receivers are authorized and directed to pay all such debts and liabilities, as the same shall accrue, out of the earnings of the road.
‘ ‘ For all liabilities incurred by the receivers in the operation of the road they may be sued in any court of competent jurisdiction, or the claimant may, at his election, file an intervening petition in this cause and have his demand adjudicated in this court. Judgments obtained against the receivers in the state courts which are not appealed from, and judgments against the company on demands which - the receivers are by the terms of this order required to pay, not appealed from, will be audited and allowed by the receivers as of course ; or will, upon filing a transcript of the same in the master’s office of this court, be audited and allowed as of course, as adjudicated claims against the receivership. The receivers may be sued in any court of competent jurisdiction without an application by the plaintiff in such suit to this court for leave to do so.”
It will thus be seen that the receivers were directed “to-pay all just and legal liabilities incurred by the said company in the transportation of freight and passengers, including damages for injuries to employees or other persons, and to property, which have occurred with twelve months last past.” The right of the court to impose these equitable conditions to the ap pointment of the receivers is undoubted — is not denied by counsel for plaintiff in error, and, even if the right were doubtful, its exercise could hardly be questioned in a collateral proceeding such as this. Therefore the demand in question became under the above-quoted order of the court an obligation of the receivers, and its payment became an enforceable duty. The only question therefore relates to the manner of its enforcement.
The courts are by no means unanimous as to the right, independent of statutory provisions, to maintain actions against receivers without leave of the court appointing them. We are not called upon, however, in this case to determine that question. In the order appointing the receivers leave was granted to sue them in other courts. The last sentence in the order above quoted reads as follows: “ The receivers may be sued in any court of competent jurisdiction without an application by the plaintiff in such suit to this court for leave to do so.” Language clearer or more emphatic than this could not be used. The only possible question that could arise is whether it is the correct practice to give general leave to all complaining parties to sue, or special leave to particular parties as they may apply for it. We have no doubt, as a matter of practice, that the leave may be given generally as was done in this case, but, whether this be true or not, the question is one which cannot be collaterally raised in this court, nor is it raised by the plaintiffs in error.
The order of the court below sustaining the motion for new trial is affirmed. | [
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The opinion of the court was delivered by
Doster, C. J. :
This was a contest between the John S. Brittain Dry Goods Company, the plaintiff in error, an attaching creditor, and Blanchard, Shelly & Rogers, the defendants in error, mortgage creditors of-one J. J. Foltz. The controversy was over the valid ity of a mortgage upon live stock executed to defendants in error. Foltz was a merchant, a farmer, and live-stock dealer, and was also president of a bank. He owed the plaintiff in error about $8000 for goods purchased in his mercantile business. He desired to buy 200 steers from one F. S. Wilcox, of Nebraska, and arranged with defendants in error for. a loan of money from them to enable him to do so. It was agreed between the defendants in error and Foltz that the latter should purchase the cattle, take them to his farm near Oberlin-, this state, and execute a bill of sale of them to one N. J. Vinson, a man in his employ, who in turn should execute notes and mortgages upon them to the defendants in error as security for the borrowed money, whereupon they should pay it to Wilcox as the purchase-price of the cattle. Foltz stated to defendants in error, as his reason for not executing the' notes and mortgages himself but procuring Vinson to do it, that being in the banking business the making of a mortgage by him might affect the credit of his bank. The arrangement was fully carried out, except that Foltz failed to execute the bill of sale to Vinson.
The borrowed money was secured by two notes and mortgages all executed and dated the same day; one note and mortgage being for $3802.74, the other for $3675. The cattle covered by the one securing the larger amount were described as follows : “ 100 head of two-year-old steers, red and black, this day purchased of F. S. Wilcox, of McCook, Neb. ; branded ‘4A5 on left side, or ‘A4/ or ‘ Q.’ ” The cattle covered by the one securing the smaller amount were described as follows : “100 head two-year-old steers, reds and blacks, all branded ‘ 4-A’ on left side, this day purchased of F. S. Wilcox, of McCook, Neb.” There was no separation of the 200 head of steers into lots of 100 each to correspond with the two mortgages, but they were fed and kept together as an entire herd ; those covered by one mortgage being indistinguishable from the others, except in the case of such of those included in the larger mortgage as were branded “A4 ” or “ Q.” These, however, were few in number.
Some time after the execution of these mortgages, 108 of the cattle, presumably those most marketable, were selected from the total of 200 and were sold. With the proceeds of the sale the note and mortgage of |3802.74 were paid. The controversy which subsequently arose relates only to the remaining 92 head covered by the smaller mortgage of ¡¡>8675. The plaintiff in error, conceiving this mortgage to be fraudulent, brought suit upon its merchandise account against J. J. Foltz, and attached the cattle as belonging to him. The defendants in error intervened in the attachment suit and filed an interplea, and subsequently an amended interplea, setting up their mortgage claim. The court made findings of fact favorable to the interpleaders, and rendered judgment in their favor. From this judgment error has been prosecuted to this court.
Several contentions are made by the plaintiff in error. One is that the findings of fact are contrary to the evidence ; another, that the defendants in error, in their amended interplea, abandoned their claim of mortgage lien, and elected to claim one by subrogation to the vendor’s lien of Wilcox, the seller of the cattle, and that the findings and judgment of the court, rightly interpreted, award such kind of lien; ergo, there was no lien at all, because Wilcox had no purchase-money claim to which subrogation could be made. Another contention is that the chattel mort gage was not filed at such a time and in such manner as to charge the creditors of Foltz with notice ; another, that Vinson had no property interest in the cattle in question, and could not, therefore, execute a valid mortgage upon them, and that the arrangement between the various parties by which it was agreed that he should do so could not supply the lack of interest necessary in such cases to support the mortgage ; lastly, that the description of the cattle in the mortgage in question was void for uncertainty, in view of the fact that there was no separation of the animals covered by the two mortgages, and the description in one would apply as well to those included in the other.
We have examined these various claims of error. None of them is well founded. Only the last two will be specially noticed. A discussion of the others would in some instances require a setting out and interpretation of the language of the pleadings, findings, and judgment of the court, neither necessary nor useful to be done; and in others-would require an examination of conflicting evidence, which, under the repeated decisions of the court, we will not undertake.
It is true that Vinson had no interest in the cattle. He was employed as a mere intermediary through whom to transmit a mortgage lien upon them to the defendants in error, but the plaintiff in error does not claim that the arrangement by which he was so to act was entered into by the defendants in error with fraudulent purpose upon their part. Blanchard, Shelly & Rogers agreed to accept securities from Vinson upon the assurance by Foltz that he would transfer the legal title to Vinson by bill of sale. They did not agree to accept them from Vinson in order to aid Foltz to cover up the title to his property, but to avoid the credit of Foltz’s bank becoming affected, as-it was represented it might be if Foltz, its president, were to execute a mortgage in his own name. Their assent to this arrangement for this reason may not have been laudable or praise-worthy, but it was not fraudulent in fact as against Foltz’s creditors.
The description of the cattle is not uncertain. The two mortgages, executed as they were at the same time upon unseparated portions of the same herd of stock, to secure only nominally separated portions of the same debt due to the same creditor, and which stock was bought at the same time from the same vendor with the same funds, may well be looked upon in equity, in such a controversy as this, as constituting a single instrument covering an aggregate of 200 head of animals, of which ninety-two still remain ; but looking at the two mortgages as separate and distinct, and covering different cattle, the right to enforce the one now in question upon the unascertained and unselected 100 head of steers out of the total 200 head was maintainable upon the ground of a vendee’s right of election. “ If I give you one of my horses in my stable, there you shall have an election, and if one grant to another twenty loads of hazel, or twenty loads of maple, to be taken in his woods of D., there the grantee shall have election.” (Heyward’s Case, 2 Coke, 37.) If a mortgage upon an unselected portion of a whole number of things of the same kind is good between the parties upon the principle of election by the mortgagee, it is as good as against third parties, because the instrument in such a case gives a hint or clue to inquiring persons which, if followed, will lead to definite information, by bringing on an election of the mortgagee. An election may be compelled, if equitable to do so, and the description in the mortgage will be regarded as sufficiently definite, upon the ground that that is certain which can be made certain. The case of Oxsheer v. Watt, 91 Tex. 124, 41 S. W. 466, is full to this point and meets our approval. An election having been made under the larger of the two mortgages before the attachment of the plaintiff in error was levied, there remained only enough cattle to secure the other note and mortgage of |8675. These cattle were selected for the purpose of inclusion within that mortgage and the security of that note by the very act of selection of the others which were sold to discharge the larger note and mortgage.
It may have'been that some of the few steers branded “A4” or “Q,,” and which were alone covered by the larger mortgage, remained among the ninety-two head, the subject of this controversy. As to this we are not advised. It is not claimed that such was the case, and as to the right of lien upon such, if any there may have been, we express no opinion.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Johnston, J. :
Lovina Crawford brought this action against J. M. Crawford and his wife, Mathilda J. Crawford, to recover 426 acres of land situate in Coffey county. She alleged and claims that she is the widow and sole heir at law of John Crawford, who died December 7, 1895 ; that he abandoned her in Oregon and brought with him to Kansas $20,000, a part of which was invested in the land in controversy ; that the entire consideration of the purchase was paid by John Crawford, but, to exclude her from any interest in the land, he had J. M. Crawford named as grantee in the deed which was placed on record ; that J. M. Crawford and wife in turn executed and delivered another deed to John Crawford, conveying back to him the land, which deed was not recorded but was kept in his home ; that after the purchase so made John Crawford took possession of the land and retained it until his death, and that, shortly before he died and while upon his death-bed, some one purloined the deed from his house, and it has not since been found.
On the other side, it is claimed that the deed from J. M. Crawford and wife to John Crawford was never in fact delivered; that after it was written out it was placed in the possession of the scrivener to be retained by him until a certain event should happen ; and that later a different arrangement was made whereby the ownership of the land was to vest in J. M. Crawford, and that the deed to John Crawford, which for some reason had passed out of the possession of the scrivener, was to be destroyed.. It is also claimed that-$500 was paid by J. M. Crawford to John Crawford as a part consideration for the land, and that prior to the death of John Crawford J. M. Crawford had moved upon the land and taken possession of the same. The' jury found that J. M. Crawford and wife made a deed to John Crawford for the land in question, but that the deed was not left with the scrivener, but that John Crawford had possession of the same.
The controlling questions in the case were whether this unrecorded deed had actually been made and delivered, and whether John Crawford was owner of the land at the time of his death. In support of this claim of Lovina Crawford, testimony was offered of the declarations of John Crawford, made at different times during a period of about two years, to D. D. Craig and his wife, with reference to the title and ownership of the farm. The Craigs had rented the farm from John Crawford, and Mrs. Craig, who was a niece, had expectations that her uncle would ultimately de.vise the land to her. D. D. Craig was asked what he had heard John Crawford say while they were living with him on the farm as to the ownership of it, and he was allowed to answer, over objection, that John Crawford told him that the deed then stood in his name ; that the land was his; but that the deed would not be recorded while he lived. Mrs. Craig stated that while they were living on the farm her uncle told her that it was his farm ; that he had it deeded in J. M. Crawford’s name to keep people out west from making him trouble ; and that he often told her that J. M. Crawford had deeded the land back to him. She stated that her uncle had made a will to her, and told her that at his death the deed from J. M. Crawford was to be recorded. Other testimony of the same character was received over objection.
It is clear that the foregoing declarations are mere hearsay, and their admission must be regarded as a fatal error. They were not made in the presence of J. M. Crawford nor acquiesced in by him. ' They were not against the interest of the party making them, nor did they fall within any of the exceptions to the rule excluding hearsay testimony. In a controversy with J. M. Crawford, John could not have proved ownership by his own declarations to third parties, and they are not more available as testimony in favor of one who claims through him. (Ward v. Ward, 37 Mich. 253; Jones on Evid., § 236.) An exception to the rule of rejecting such declarations is where they constitute a part of the rés gestee, and it is contended here that the testimony in question comes within this exception. Voluntary and spontaneous declarations in connection with the' making of a conveyance or a declaration accompanying the taking possession of land which qualifies the possession taken, when made ini good faith, may be received as part of the res gestee. The objectionable declarations here, however, did not accompany the execution of the deed or the taking possession of the land, nor did they relate to the extent of the possession. They were mainly narratives of past occurrences, and had no legitimate connection with or tendency to qualify any act which is the subject of inquiry. For that reason they are not deemed to be a part of the res gestee. (Stark v. Cummings, 5 Kan. 85; Osborne v. Osborne, 33 id. 257, 6 Pac. 271; Tennis v. Rapid Transit Ry. Co., 45 id. 503, 25 Pac. 708.)
The claim that the testimony, if inadmissible, is immaterial cannot be sustained.' It is true that the signing of the deed by the plaintiffs in error appears to be conceded, but there is a sharp controversy in the testimony as to the delivery of the deed and the ownership of the land. It cannot, therefore, be treated as immaterial. It is true, as contended, that the evidence in the case strongly tends to support the findings and judgment, but it is impossible to say that the jury were not affected by the incompetent testimony, or that the error is without prejudice.
Having reached this conclusion, it is not necessary to consider the other questions discussed, and therefore the judgment will be reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Johnston, J. :
The creditors of W. L. Vickers & Co. brought this action to set aside a conveyance of lands made by O. C. Vickers and wife to P. B. Maxson, upon the alleged ground that the conveyance was made to defraud the creditors of W. L. Vickers & Go. This firm was engaged in the hardware and implement business at Wichita Falls, Tex., and was composed of O. O. Vickers and his nephew W. L. Vickers. O. C. Vickers resided in Kansas, where he owned a large farm, and also an interest in a bank at Dunlap, of which he was president. He furnished the greater part, if not all, the capital that was invested at Wichita Falls, while W. L. Vickers was the active manager of the business, and contributed but little.except experience toward the capital of the firm. The business was started in 1891, and many sales were made upon credit, so that when C. C. Vickers went to Wichita Falls in 1894 the assets of the firm consisted of a stock of merchandise worth about $7000, and notes, mortgages and accounts amounting to $17,700. C. C. Vickers determined to close out the business, and a sale of the goods on hand was made to two of the creditors for $7000. There remained debts of the firm to the amount of $11,000, and to secure this indebtedness the notes, mortgages and accounts due the firm, amounting to $17,700, were assigned and transferred to a trustee for the creditors, who was charged with the duty of collecting the same and applying the proceeds to the payment of such indebtedness. Only a small part of the notes and accounts had been collected by the trustee when the testimony in the case was taken, and hence the creditors are seeking satisfaction from the property of C. C. Vickers.
About the time that O. C. Vickers closed out his business in Texas, a sale of the land in controversy was made to P. B. Maxson, his father-in-law. The price of the land was fixed at $8500. It was subject to a mortgage for $3000, and Maxson agreed to assume the payment of the mortgage and to pay $5500 more. One thousand dollars was to be payable in ten days, and he executed two notes for $2250 each, due in six and twelve months. The bargain was made by Mrs. Vickers, and it was subject to the ratification of her husband, who was then in Texas. He ratified the sale and joined in the execution of the conveyance.
The creditors contend that the transfer was not an honest one, but was made to defeat and defraud them ; that while the amount of the notes and accounts of the firm exceeded its indebtedness, it was well known that a part of them was not good and that they were not worth to exceed fifty per cent, of their face value; that C. C. Vickers was in Texas about three months, and must have known the financial responsibility of the men who owed the firm. And it is also claimed that Maxson knew, or should have known, of Vickers’s circumstances and fraudulent purpose ; and, further, that while the negotiations were pending for the sale of the land he went to Texas, where Vickers then was, and had an opportunity to learn that Vickers was insolvent and that the sale was fraudulent.
On the other side, it is contended that Vickers thought his Texas assets were sufficient to pay the Texas liabilities, and that quite a sum would remain ; that the sale was only made to meet an obligation to the Dunlap bank, which was pressing, because it was an overdraft on a bank of which he was president; that the violation of law was liable to be exposed by a bank-examiner, and lest financial disgrace should result he decided to sell his land; that Maxson knew of this stress, and agreed to buy the land to relieve it and the anxiety of Mrs. Vickers, his daughter, because of it; that he had no knowledge of any fraudulent purpose of Vickers, nor of any facts that would upon diligent inquiry have disclosed it; that the information he gained in Texas was that the Texas assets were more than sufficient to pay the liabilities of the firm ; that Vickers so represented, and that he in good faith believed him. There was some testimony tending to sustain the various contentions of the parties, and the principal questions raised in this review arise upon the instructions given to a jury which was impaneled to try the facts.
Complaint is made of the seventh and eighth instructions, to the effect that actual knowledge by the vendee'of the fraudulent intent of the vendor need not be shown in order to avoid the sale, but that a knowledge of facts sufficient to excite the suspicions of a prudent man and put him upon inquiry will be sufficient. The principle embodied in these instructions is fairly within the authorities, and has passed beyond the stage of controversy into settled judgment. (Phillips v. Reitz, 16 Kan. 401; Kurtz v. Miller, 26 id. 314; McDonald v. Gaunt, 30 id. 696, 2 Pac. 871; Gollober v. Martin, Sheriff, 33 id. 252, 6 Pac. 267; Morse v. Ryland, 58 id. 250, 48 Pac. 957.) The instruction might have been elaborated as to constructive knowledge of fraud by requiring a knowledge of facts sufficient to excite the suspicions of an ordinarily prudent man. Maxson was only bound to act as a man of ordinary prudence would, and could not be required to act up to the standard of a person who was particularly suspicious and cautious by nature. The word "ordinarily” was not used, but we think the jury would infer from the language used by the court that the standard of ordinary prudence was intended. The court might have added that every suspicion of fraud is not to be deemed the equivalent of notice, but that the facts within the knowledge of the purchaser must be of such a nature as in reason will put him upon inquiry, and exite the suspicions of an ordinarily prudent person ; and that he is then chargeable with a knowledge of such facts as would have been gained by a diligent inquiry. The same idea is expressed in Richolson v. Freeman, 56 Kan. 467, 43 Pac. 772, where it was remarked that " a knowledge of facts sufficient to put one upon inquiry which, if duly prosecuted, would have disclosed such fraudulent intent, is equivalent to actual knowledge of the same.” Our view, however, is that nothing in the language of either instruction misled the jury or furnishes ground for reversal.
. A more serious objection is made to the ninth instruction, which reads as follows :
• "If the jury find from the evidence that the said C. C. Vickers and wife made a conveyance of the property described in the plaintiff’s petition to the said P. B Maxson for the purpose of hindering, delaying or defrauding the creditors of the said C. O. Vickers, or the creditors of the said W. L. Vickers and O. C. Vickers, partners as W. L. Vickers & Co., then you are instructed that if the said P. B. Maxson, before he made the purchase of said property, or before he paid the consideration therefor, had knowledge that the said firm of W. L. Vickers & Co. was insolvent — that is, in failing circumstances and unable to meet their obligations as they matured — and that the creditors of the said C. C. Vickers were pressing their claims against him, then the said P. B. Maxson would be chargeable with notice of fraudulent intent of the said C. C. Vickers and Avife, and he Avould not be a bona fide purchaser of said property, and your findings must be for the plaintiffs, unless you shall further find that the consideration which the said P. B. Maxson paid for said lands Avas a good and valuable consideration, and that the money paid by him Avas applied to the satisfaction of the debts of the said creditors of W. L. Vickers & Co. or the debts of the said C. C. Vickers.”
In effect this instruction holds that mere knowledge of the vendor’s insolvency is, as a matter of law, sufficient to charge a purchaser with notice of a fraudulent purpose on the part of the vendor. It asserts the proposition that if Maxson kneAV that W. L. Vickers & Co. Avere in failing circumstances and unable to meet their obligations as they matured, and that creditors Avere pressing their claims against the firm when he purchased the land, he was chargeable with notice of the fraud of Vickers. The fact that persons are unable to meet their obligations as they mature does not necessarily indicate dishonesty, or that a sale made by them at that time is necessarily fraudulent; and yet the court ruled that a knoAAdedge of this fact alone by Maxson made him a participant in the fraud of the vendor, although he may have had no knoivledge of any facts or circumstances indicating Vickers’s intent to commit a fraud. Insolvency and honesty are not necessarily antagonistic. Many persons not subject to the charge of dishonesty are unable to meet their obligations as they mature, and it is not uncommon th'at such persons, through the indulgence of their creditors, reach ultimate success. A present inability to meet all debts as they mature does not point so unerringly to a fraudulent design that all persons who deal with such debtor and have a knowledge of the inability must infer that he intends to commit a fraud. The insolvency of a vendor is a circumstance to be considered in determining whether fraud exists, but it cannot be declared as a matter of law that insolvency alone is sufficient to establish fraud. In Dobson v. Cooper, 50 Kan. 680, 32 Pac. 370, it was said that “insolvency is an element of proof entitled to consideration in canvassing badges of fraud in order to determine the honesty of the transaction. Proof of insolvency, does not necessarily establish fraud, but a sale of all his property by one insolvent is a circumstance which in connection with others may be sufficient tó awaken suspicion and create a. presumption of a fraudulent design.” The supreme court of Nebraska has ruled that “the insolvency of the grantor in a deed of conveyance, although a circumstance which may be taken together with other material facts to show a fraululent design in disposing of property, is not of itself sufficient to establish it.” (Leffel & Co. v. Schermerhorn, 13 Neb. 342, 14 N. W. 418; Albertoli v. Barnham, 80 Cal. 631, 22 Pac. 404; Dalton v. Thurston, 15 R. I. 418, 7 Atl. 112; Bump, Er. Conv., §§ 183, 184.)
The exception at the end of the instruction as to the payment of consideration does not neutralize the error that preceded it, as coupled with it is a requirement that the purchaser shall see to and be responsible for the application of the purchase-money to the payment of the vendor’s debts. The power to sell the property and to apply the proceeds among his creditors resides in the debtor. The fact that he is insolvent does not deprive him of the right to sell or mortgage his property in order to pay or secure his debts, nor to prefer creditors. In such cases debts cannot be paid until the property is sold or disposed of; and since the defendant has the unquestioned right to prefer one creditor to another, it is not easy to see how the purchaser is to be held to a proper application of the money paid. The insolvency of the debtor, the facts pointing to a fraudulent design, the circumstances surrounding the transaction, the knowledge and means of knowledge of the purchaser of the fraud, if any, of the vendor, may all be considered in determining the good faith of the purchaser and the validity of the sale ; but it cannot be said that the insolvency of the vendor alone is sufficient to charge the purchaser for a full consideration with notice of a fraudulent intent on the part of the vendor. In view of the claim of good faith of Maxson in the purchase and the testimony tending to support it, the instruction was clearly and materially incorrect.
It is suggested that as a jury trial could not be had as a matter of right, and as the findings of the jury are not binding upon the court, the instruction, although erroneous, is unimportant. The facts were submitted to the jury for their determination, and their findings were accepted and adopted by the court as its own, and the case was treated in all respects as though a jury trial was a matter of right. In such case “the same rules obtain as those which govern cases triable to juries as a matter of right, unless the court thereafter dispenses -with the jury for the purpose of trying the case itself.” (Loob v. Fenaughty, ante, p. 570, 55 Pac. 841.) Here, it appears, the jury was not dispensed with, nor was independent consideration given to the facts by the court; -and were we to overlook the findings of the jury, the instruction shows that the case was tried upon an erroneous theory — that is, that an incorrect rule was used by the court in weighing the testimony and in measuring the rights of the parties.
For the error mentioned the judgment will be reversed and the cause remanded for a new trial. | [
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Pee Curiam :
This action was brought by Moore to enjoin the railway company from constructing an embankment across a ravine over which the defendant's railroad was originally constructed on piling, leaving an opening underneath the track through which the plaintiff was enabled to pass from one part of his farm to the other. The claim of the plaintiff was that at the time he granted the right of way over his land to the railway company, under which the defendant claims, it -was agreed as a part of the consideration for the deed that the plaintiff should have this under-grade crossing as a perpetual easement. The relief demanded by the petition was that the defendant be restrained from closing up the opening used by the plaintiff. There was no prayer for a reformation of the deed. At the trial the plaintiff offered testimony tending to show an agreement between himself and the agent of the company who procured the right of way that he should be given such a crossing as he claimed, and that the railway company had recognized his right to it by so constructing its railroad and its fences as to afford an ample passage from one side of his farm to the other underneath the track. On the other side, the railway company offered in evidence the deposition of M. A. Low with reference to the authority of the agent to make such an agreement as was claimed by the plaintiff, and a receipted voucher for $800 paid by the railway company for the strip of ground for the right of way. A copy of the deed for the right of way, the execution of which was not denied, was attached to the answer. It showed an unconditional grant of a strip of land 100 feet wide part of the way, and 150 feet wide the rest of the way, oyer the plaintiff’s land, and contained no reference whatever to the under-grade crossing claimed by the plaintiff. On this testimony the district court denied an injunction and entered a general judgment in favor of the defendant. The court of appeals has reversed this judgment. (Moore v. Railway Co., 7 Kan. App. 242, 53 Pac. 775.)
The opinion of the learned presiding judge of that court assumes as a fact the existence of the parol contract with reference to the crossing, and the argument proceeds on this basis. It is stated in the opinion of the court that the testimony of the plaintiff’s witnesses with reference to the existence of the agreement is clear, emphatic, and uncontradicted. We deem it unnecessary to enter into a discussion of the legal questions considered by the court of appeals, because in our view the record fails to present them. At the trial the court had before it on one side the deed and written voucher prepared and executed for the purpose of showing the rights of the parties under their agreement, and the deposition of Mr. Low. On the other side was the oral testimony of the plaintiff and his witnesses. The issue presented was as to the right of the plaintiff to enjoin the defendant from making full and unrestricted use of the strip of land conveyed to it for making a right of way, and thereby to close up the crossing. No reformation of the deed was asked, and the validity of it was not on trial. The issue was as to the rights of the parties under it.
Assuming that the deed was not conclusive on the rights of the parties and might be contradicted by oral testimony, it still was not only evidence, but the highest character of evidence, as to what the agreement in fact was. The written voucher in which the plaintiff charged the railway company with the strip of ground, and receipt for the money, was some evidence at least as to the terms of the bargain. This documentary evidence it was the duty of the court to weigh in the balance as against the oral statements of witnesses. The trial court gave credence to the written evidence and discarded the oral. It had a clear right to do so. Even had this been an action in form to reform the deed, the rule is well settled that strong, clear and convincing testimony of the error in the document must be .adduced,.and the trial court had a right to take into consideration not only all the circumstances in the case, but the appearance and demeanor of the witnesses, for the purpose of ascertaining the truth. The doubts in this case were resolved on the testimony in favor of the defendant. The finding of the trial court, sustained by evidence, is in effect that the deed represents the real contract of the parties. The plaintiff, therefore, was not entitled to an injunction. The familiar case then was presented to the court of appeals of a finding adverse to the plaintiff in error on conflicting testimony, and this finding was conclusive on that court. No other questions than those arising on the merits were presented to or considered by the court of appeals, and these under the well-settled and oft-repeated rule of law were not open to review.
The judgment of the court of appeals is reversed, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
Claude K. Freeman is the sole appellant in each of the above cases. In this court they were briefed and argued together, but we shall deal with them separately. No. 37,499 is an action to quiet title. N. C. Dennett and wife (substituted as plaintiffs) on July 7, 1947, filed their amended petition in the district court of Butler county in which they alleged that they were the owners in fee simple and in possession of the northwest quarter of section twenty-eight, township twenty-eight, south, range six, east of the 6th P. M. in Butler county (hereinafter called the land); that they and those through whom they derived title have been in the open, notorious, undisputed, quiet and peaceful possession of the land for more than fifteen years; that the defendants and each of them claim some right, title or interest in or lien upon the land, or some part thereof, the exact nature and extent of which is to plaintiffs unknown, but allege that the claims of the defendants, and each of them, are null and void as to plaintiffs’ title and cast a cloud thereon. They prayed for appropriate relief in a decree excluding defendants, and each of them, from any interest in, or lien upon the land, and for costs.
Claude K. Freeman filed an answer which contained a general denial and in which he alleged “that he is the owner of one-sixteenth of the royalty in and lying under” the land, “and that said interest was confirmed in him by virtue of a judgment rendered by this court and made and entered in the case of Phoenix Mutual Life Insurance Company v. Mierau, et al., being case No. 15,113 in this court, the files and decree of said action being now incorporated herewith by reference, the same as if set out herein at length.” He further alleged that the plaintiffs and substituted plaintiffs and other defendants in the action claim some right, title or interest in or to the property of this defendant, as herein set forth, but defendant alleges the fact to be that any claim, whatever it may be, is subject to and inferior to the title of this defendant and that the same should be declared of no force.
To this answer plaintiffs filed a reply, which is a general denial. At the trial by the court on July 30, 1947, the following matters were stipulated:
1. That on the 3d day of March, 1920, August Siedl, Edith Siedl and Emil Siedl, deeded by warranty deed to E. C. Mierau all of the land excepting three acres sold to Friends Church “and excepting a one-sixteenth (1-16) of all oil and gas and other minerals which grantors reserved unto themselves and their heirs and assigns forever.”
2. In the 29th day of January, 1926, Edith Siedl quitclaimed all of her right, title and interest in the land to William Bunnell, by a deed which was duly recorded.
3. On the 11th day of February, 1926, Emil Siedl, a widower, quit-claimed all of his right, title and interest in said land to William Bunnell by a deed which was duly recorded.
4. On the 25th of February, 1946, William Bunnell and wife quit-claimed one-fourth of their right, title and interest in and to the land to Claude K. Freeman. This deed was duly recorded in Vol. 155 of Deeds, at page 155, in the office of the register of deeds of Butler county, Kansas.
It is also stipulated that in the action entitled Phoenix Mutual Life Insurance Company v. Mierau, et al., No. 15,113, in the district court of Butler county the plaintiff foreclosed a real-estate mortgage wherein Claude K. Freeman was one of the defendants. Pertinent excerpts from the files are as follows:
In the petition filed January 8, 1930, the Phoenix Mutual Life Insurance Company sought to recover a personal judgment against Edward C. Mierau and his wife upon a promissory note in the sum of $3,200, dated October 24, 1924, and to foreclose a mortgage upon the land here involved of the same date alleged to be in default. Claude K. Freeman was made a party defendant, and with respect to him the petition alleged:
“Plaintiff further says that the defendant,- Claude K. Freeman claims some right, title or interest in and to the above-described real estate by reason of a certain quit claim deed from William Bunnell and Bertha B. Bunnell, husband and wife, dated February 25, 1926, and recorded in the office of the Register of Deeds of Butler County, Kansas, in volume 155 of Deeds at page 155, but that said interests, if any there be, are junior, inferior and subsequent to the claims of this plaintiff.”
To this petition Claude K. Freeman filed an answer in which he alleged:
“That said defendant is the owner of an undivided royalty interest in and to the Northwest Quarter (NW %) of Section Twenty-eight (28), Township Twenty-eight (28) South of Range Six (6) East of the 6th P. M. and that the interest of this answering defendant is paramount to the interest of the plaintiff herein. Wherefore, this defendant prays that his interest in and to said property be declared a prior and paramount lien to the lien of said plaintiff.”
In the journal entry of judgment of April 16, 1930, the following statements are found:
“The court further finds that all of the defendants in this action, with the exception of Claude K. Freeman (and two others named) have defaulted herein and are still in default at this time, having filed no answer or other pleadings in this case.
“The court finds that the defendant, Claude K. Freeman, filed an answer herein. . . .
“Thereupon the plaintiff introduces evidence in support of its petition, and rests.
“Thereupon the defendant, Claude K. Freeman, introduces evidence in support of his answer, and rests.
“Thereupon the court, being fully advised in the premises, finds that the allegations contained in the answer of the defendant, Claude K. Freeman, are true and that said defendant is the owner of an undivided one-sixteenth (l/16th) royalty interest in and to (the land) and that said interest of said defendant is prior, paramount and superior to the interest of the plaintiff, The Phoenix Mutual Life Insurance Company.
“The court further finds that all of the allegations contained in the petition of the plaintiff, with the exception of those concerning the interest of the defendant, Claude K. Freeman, are true and correct, and that the plaintiff is entitled to judgment against the defendants (naming them, other than Freeman). . .
“The court further finds that the mortgage set forth in the petition of the plaintiff . . . is a valid lien on said premises and is in default and subject to foreclosure, subject only to the royalty interest held by the defendant, Claude K. Freeman.”
The decree provides that if the amount of the judgment is not paid within ten days the land should be sold at sheriff’s sale, and provides for the distribution of the proceeds of the sale. Plaintiff was given judgment for its costs, “and a further judgment forever barring all of the defendants, their heirs, successors or assigns from any right, title or interest in and to the above described premises, except only as to their right of redemption. . . .” (Italics ours.)
The order of sale recited the judgment in favor of plantiff against Mierau and wife and that the same was a lien upon the land, and provided that “said property be sold according to law, agreeably to said judgment and decree. . . .”
The sheriff’s sale notice, among other things, described the real estate and recited: “That said real estate will be sold subject to an undivided one-sixteenth (l~16th) royalty interest held by Claude K. Freeman, . . .”
The return of the sheriff shows that he gave notice and that on a day stated he sold the described real property “subject to 1/16 royalty interest of Claude K. Freeman in and to said real estate.”
Plaintiff’s motion to confirm the sale recited the fact that the sheriff had sold the described property “subject to an undivided one-sixteenth (1/16) royalty interest held by Claude K. Freeman. . . .”
The journal entry confirming the sale recites the proceedings and decree, “that said sale is hereby confirmed and the sheriff of Butler county, Kansas, is ordered to execute and deliver to the purchaser at said sale, the Phoenix Mutual Life Insurance Co., a corp., a certificate of purchase for said property, providing, among other things, that said title is subject to an undivided one-sixteenth (1/16) royalty interest held by Claude K. Freeman. ...”
Upon this evidence the court quieted the title to the land in the plaintiffs, N. C. Dennett and wife, and barred Claude K. Freeman of all right, title or interest therein. He filed a motion for a new trial, which was overruled, and he has appealed both from the judgment and from the order overruling the motion for a new trial.
In this court he presents two questions: (1) Did appellant, Claude K. Freeman, acquire any rights in the real estate here in question under the proceedings in the case of Phoenix Mutual Life Insurance Company v. Mierau and Freeman? (2) Does the grant of royalty give the grantee any interest in real estate?
We first note that the only evidence before the trial court was' documentary. In such a case this court has the authority and the duty of interpreting and construing the documentary evidence and is not bound by the interpretation or construction given it by the trial court. (See In re Estate of Kemper, 157 Kan. 727, 734, 145 P. 2d 103, and cases there cited.) We first note that the deed from August Siedl and Emil Siedl to Mierau contained the clause “excepting a one-sixteenth (1/16) of all oil and gas and other minerals which grantors reserved unto themselves and their heirs and assigns forever.” This was an exception as distinct from a reservation, if the word used makes any difference. (See Barrett v. Coal Co., 70 Kan. 649, 79 Pac. 150, and Moore v. Griffin, 72 Kan. 164, 83 Pac. 395.) By this instrument the grantors did not convey to Mierau the l/16th of the oil, gas and other minerals in or under the land. The conveyances of Edith and Emil Siedl to Bunnell were of all their respective rights, title and interest in the land, which necessarily included whatever fractional share they respectively owned in the oil, gas and other minerals in and under the land, which may have been the full l/16th. When Bunnell and wife quit-claimed to Freeman it necessarily conveyed to the grantee a l/4th of all their right, title and interest in the oil, gas and other minerals in and under the land which he acquired from the Siedls, and any other portion which he may have acquired from some other source, a fact which this record does not disclose. When the Phoenix Mutual Life Insurance Company brought its suit to foreclose its mortgage in 1930 the plaintiff recognized that Freeman had an interest in the oil, gas and other minerals in and under the land by a deed from Bunnell and wife, and sought to have its mortgage held to be superior thereto. In Freeman’s answer in that case he alleged that he had a l/16th royalty interest in the land.
After hearing Freeman’s evidence the court found that he had a l/16th royalty interest in the land, describing it, which was prior, paramount and superior to the interest of the plaintiff. The court foreclosed plaintiff’s mortgage subject to the interest of Freeman and the land was sold by the sheriff and the sale confirmed subject to the interest of Freeman in the land as decreed by the court. It is clear that the purchaser at that sale did not purchase the interest of Freeman in the land. In the law of judicial sales it is well settled that the purchaser does not buy more than is sold. (See Simmons v. Clark, 151 Kan. 431, 433, 99 P. 2d 739; Henne v. Wood, 153 Kan. 673, 113 P. 2d 98, and authorities there cited.)
The trial court was of the view that under the definition of the word “royalty,” as defined in Bellport v. Harrison, 123 Kan. 310, 255 Pac. 52, the use of the word “royalty” in the answer of Freeman and in the decree and other papers in the forclosure action conveyed nothing to the defendant Freeman, and that any remedy they had at that time was by appeal. This interpretation is erroneous. In Bellport v. Harrison, supra, the word “royalty” was defined only “as applied to an existing oil and gas lease.” The definition has no application here. There was no oil and gas lease on the property at the time Freeman acquired his interest thereto. His interest was acquired by conveyance and related to oil, gas and other minerals in place in the land. It is true that at the time the foreclosure suit was brought there was an oil and gas lease on the property which had been placed there after the mortgage had been executed, which was then being foreclosed, and for that reason it was set aside in the same decree of the court which fixed the interest of Freeman, and since that time there has been no oil and gas lease on the property. So it is clear that the defendant in his anwser, and the court in its decree, were not using the term “royalty” in its relation to an existing oil and gas lease.
The terms “royalty” and “royalty interest” frequently have been used rather loosely and at times otherwise than in its ordinary meaning as defined in Bellport v. Harrison, supra. When so used the test to be applied to its interpretation is the intention of the parties, for the terms of an instrument and not its name determine its nature and character. (See Anderson v. Allen, 129 Kan. 502, 505, 283 Pac. 509; Sledd v. Munsell, 149 Kan. 110, 86 P. 2d 567; Fry v. Dewees, 151 Kan. 488, 99 P. 2d 844, and Rutland Savings Bank v. Steele, 155 Kan. 667, 127 P. 2d 471.) In Rathbun v. Williams, 154 Kan. 601, 121 P. 2d 243, it was said (p. 604): “The owner of the mineral interest may sell and assign the royalty interest.” And in Miller v. Sooy, 120 Kan. 81, 242 Pac. 140, it was held:
“An instrument in the form of an assignment of a half interest in all royalties, rents and bonuses to accrue to the assignor under an existing oil and gas lease on certain land, or under any oil and gas leases thereafter executed thereon, is held to be valid and enforceable with respect to the subsequent leases as well as that already in existence.”
(See, also, Davis v. Hurst, 150 Kan. 130, 90 P. 2d 1100, and compare Brooks v. Mull, 147 Kan. 740, 78 P. 2d 879.)
These cases are cited as examples of how the court has dealt with the word “royalty” as used in instruments other than existing oil and gas leases. They disclose that in each instance the court analyzes the instruments involved to determine the intention of the parties and to construe the instruments in harmony with that intention. Naturally, they do not cover all instances possible to arise, and in fact do not cover specifically this case. Here it seems clear that the parties used the term “royalty” in the answer and decree of the foreclosure case as applying to the instruments under which Freeman acquired his interest in the property and as meaning an interest in the oil, gas and other minerals in the land.
In quieting title in plaintiff and barring Claude K. Freeman of any right, title or interest in the property the court stressed the final paragraph in the decree in the foreclosure case, hereinbefore quoted and italicized. We think the court erred in its interpretation of that paragraph of the decree. We construe it as applying only to what was sold at the sheriff’s sale. The language is perfectly proper when so construed, but it would be improper if construed otherwise in view of the several statements in the decree, the order of sale, the sale notice, and the order confirming the sale foreclosing the mortgage subject to the 1/16th royalty interest found to be vested in Claude K. Freeman.
In this court counsel for appellee argues that the interest of Claude K. Freeman could not be as much as l/16th. We think the appellee is not entitled to raise that question. The trial court in the foreclosure action, upon evidence offered, determined what his interest was. There was no appeal from that and this proceeding to quiet title is not a reexamination of that question.
The result is that the decree of the court quieting title in N. C. Dennett and wife in fee simple and barring and excluding Claude K. Freeman from any right, title, interest or estate therein is erroneous and should be reversed. It is so ordered.
We turn now to the appeal in No. 37,617. After the judgment was rendered against Freeman in the case to quiet title in No. 37,499 upon the ground, among others, that the court in the paragraph of the journal entry of judgment in the foreclosure action, which we hereinbefore quoted and italicized, had foreclosed him of all interest in the land his attorneys filed a motion in the foreclosure action for an order nunc pro tunc correcting that paragraph of the decree to make it clear that Freeman’s rights previously adjudged and confirmed in him by the decree were not affected by that clause. Notice was given and a hearing had upon the motion, at which time the affidavits of the attorney for the plaintiff and the attorney for Freeman in the foreclosure action, which tended to sustain the motion, were filed. The court denied the motion and advised counsel that it was doing so upon the grounds that “the motion of the defendant, Freeman, for an order nunc pro tunc is moot; that it would only further encumber and cloud the title to the real estate.” Freeman appealed from that ruling. We think those grounds were untenable. We shall not labor those points, however, since there is a good reason for denying the motion, namely, that the interpretation the court gave of the questioned clause in the journal entry in the foreclosure case was erroneous, as determined in our opinion in case appealed, No. 37,499. The motion for an order nunc pro tunc was not necessary and should have been denied for that reason. A correct ruling will not be set aside because a wrong reason was given. (See City of Wichita v. Boles, 156 Kan. 619, 621, 135 P. 2d 542. Therefore, the order appealed from in this case is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action for personal injuries sustained by a passenger in a streetcar against the owner of the streetcar, its motorman and the driver of a truck, and alleged to have occurred as the result of negligence in the operation of the streetcar and the truck. The owner of the streetcar and its motorman appeal from an order granting the plaintiff a new trial, and from precedent rulings.
For the purposes of disposing of the appeal it may be said that plaintiff’s petition alleged the corporate defendant was engaged in the business of transporting passengers in Kansas City by means of streetcars apd buses; that on June 14, 1947, she was a passenger on a westbound streetcar operated by defendant Callahan and that she was sitting on the left-hand side of the car with her left elbow resting on the window sill next to her seat; that at a stated place the streecar collided with a Ford truck operated by defendant Browning and that either the truck or a bedspring on the truck struck her left elbow, causing injuries alleged in detail; that all of her injuries were caused by the carelessness and negligence of the company and the operator of the streetcar stated in eight particulars, which need not be set out, and by the negligence of defendant Browning. Her prayer was for money damages. For present purposes it may be said the answer of the defendant company and Callahan alleged their version of the accident, the physical features of the streetcar and that plaintiff was guilty of negligence which contributed to her injuries in that she allowed her elbow to rest upon the window sill and did not keep the same within the streetcar.
The defendant Browning filed no answer and was not represented at the trial. The word defendants as hereafter used is intended to refer to the company and its motorman.
At the trial plaintiff offered evidence in support of her allegations and defendants’ demurrer thereto was overruled. The defendants offered their evidence and at the conclusion of all the evidence renewed their demurrer which was overruled. Under instructions, of which no complaint was made, the cause was submitted to the jury, which returned a general verdict in favor of the plaintiff and answered special questions as follows:
“1. How much space was there: (a) from the south side of the street car to the dirt roadway adjacent to the south side of the paving; and (b) from the south side of the paving to the south edge of the dirt roadway? A. (a) 13 ft. (b) 8 ft.
“2. Was the truck on the eastbound or south car tracks when the front end of the truck passed the south front of the street car? A. Yes.
“3. If you answer Question No. 2 in the negative, then state the distance between the left front of the body of the truck and the south front of the street car at the time it passed the front of the street car. A.
“4. If you find an object in the truck struck a part of the street car, then state: (a) whether or not it had been protruding before the truck passed the street car; (b) whether or not it slipped from its load and into the street car after the front end of the truck had passed the front end of the street car; and (c) what part of the object, if any, contacted what part of the street car, A. (a) Yes. (b) No. (c) Bear corner.
“5. Was the manner of driving on the part of Chester Browning, the truck driver in this case, the sole proximate cause of the accident? A. No.
“6. If you find for the plaintiff and against the defendant railway company and its operator, W. L. Callahan, then state what negligence you find said defendant and operator guilty of, if any. A. Wasn’t watching.
“7. Did defendants, the railway company and its operator, Callahan, provide a safe arm rest on the inside of the car for plaintiff’s left,arm. A. Yes.
“8. Did plaintiff have her left arm on the window ledge or her elbow out of the window at the time and place in question? If you answer ‘Yes,’ state which. A. Yes-^-window ledge.
“9. If you answer question No. 8 in the affirmative, state whether or not by such conduct on the plaintiff’s part she was guilty of negligence, and thereby contributed to her injury as a proximate cause thereof. A. Yes.”
After return of the verdict and special findings, the defendants filed two motions, one for judgment on the answers to the special questions and notwithstanding the general verdict, the other to set aside the answers to questions 4 (a), 4 (6), 5 and 6, for reasons assigned in the motion. The plaintiff filed three motions, one for judgment on the general verdict, one to set aside the answer to question 9 for reasons assigned in the motion, and one for a new trial “as to damages only.” Later and during the course of argument thereon, and over defendant’s objection that it was too late, the trial court permitted the plaintiff to amend her motion for a new trial by striking therefrom the phrase “as to damages only.”
After hearing the several motions the trial court overruled both of defendants’ motions, overruled the plaintiff’s motion for judgment on the general verdict, her motion to set aside the answer to question 9 and sustained her motion, as amended, for a new trial generally.
In due time the defendants perfected their appeal to this court from all adverse rulings, and they specify as error the trial court’s rulings (1) on their demurrer to plaintiff’s evidence; (2) on their demurrer renewed at the close of the evidence; (3) on their motion for judgment on the special findings of the jury; (4) on their motion to set aside certain special findings of the jury; (5) permitting the plaintiff to amend her motion for a new trial; and (6) sustaining plaintiff’s motion for a new trial. The plaintiff has filed no cross-appeal.
In our opinion it is not necessary that we consider each of the above specifications of error for what is hereafter said concerning the trial court’s ruling on the defendants’ motion for judgment on the special findings and the plaintiff’s motion for a new trial disposes of the appeal.
We start consideration of the motion for judgment on the special findings bearing in mind the oft-repeated rules that a general verdict imports a finding upon all of the issues in the case not inconsistent with the special findings; that the special findings are to be given such a construction, if possible, as will bring them into harmony with the general verdict, but if the special findings cannot be reconciled with the general verdict, are sufficiently full and complete in themselves and are not inconsistent in themselves, judgment must follow the special findings. Cases so holding include the following: Giltner v. Stephens, 166 Kan. 172, 200 P. 2d 290; Gabel v. Hanby, 165 Kan. 116, 193, P. 2d 239; Lord v. Hercules Powder Co., 161 Kan. 268, 167 P. 2d 299; Glenn v. Montgomery Ward & Co., 160 Kan. 488, 163 P. 2d 427; Walker v. Colgate-Palmolive-Peet Co., 157 Kan. 170, 139 P. 2d 157; Jilka v. National Mutual Cas. Co., 152 Kan. 537, 106 P. 2d 665; and others cited in the above. See, also, Hill v. Leichliter, 168 Kan. 85, 211 P. 2d 443.
It is not necessary that we again detail the answers to the special questions submitted to demonstrate that they are not inconsisent one with the other. In substance they find that the defendants were negligent and that the plaintiff was likewise guilty of negligence which contributed to her injury. The appellee’s argument that the trial court did not err in not rendering judgment on the special findings is that she objected to one question; that another question was improper and other answers were conclusions and not ultimate facts. The difficulty with the contention as presented to this court is that her motion in the trial court to set aside the answers to the special questions was based on substantially the same grounds as are now urged. The motion was overruled and she has not appealed therefrom. Notwithstanding, we have examined her contentions and find them not sustained. We find that the answers to the special questions are not inconsistent one with the other, but that the answer that plaintiff was guilty of negligence which contributed to her injuries cannot be reconciled with the general verdict, and is inconsistent with the general verdict. Under the statute (G. S. 1935, 60-2918) and the decisions noted above, the special finding that plaintiff was guilty of negligence controlled the general verdict, and judgment should have been rendered accordingly unless because of the ruling on the motion for a new trial.
An extensive review of our decisions on the power of the trial court to grant a new trial is not necessary. There is no doubt that the granting or denial of a new trial is largely within the discretion of the trial court. See the review in Bateman v. Roller, 168 Kan. 111, 211 P. 2d 440. Many cases might be cited that the trial court not only has the power, but the duty, to set aside a verdict and grant a new trial if it is not satisfied with the verdict, and should not render a judgment if not satisfied with the verdict. (Myers v. Wright, 167 Kan. 728, 208 P. 2d 589, and cases cited.) However, if the trial court stated the ground on which the new trial was granted, and that ground is one which this court can deal with as readily as the trial court, we examine the question to see whether the reason given, as a matter of law, justified the ruling made. (Atkinson v. Darling, 107 Kan. 229, 191 Pac. 486; In re Estate of Lightfoot, 163 Kan. 369, 182 P. 2d 887.)
In Ferguson v. Kansas City Public Service Co., 159 Kan. 520, 156 P. 2d 869, a situation very like the one now before us was under consideration. It was there said:
“Normally when a court grants a new trial the effect of it is not only to set aside any general verdict which has been returned by the jury, but also to set aside the special questions. In such a situation it is normally held that there no longer exists any i special questions upon which judgment can be rendered for defendant. (See Lapo v. Naillieux, 138 Kan. 99, 102, 23 P. 2d 500, set aside on rehearing, 139 Kan. 23, 29 P. 2d 1093.) We think this rule is not applicable here because the trial court stated the specific reason which prompted him to grant the new trial. This court has been quite liberal with trial courts in not interfering with an order granting a new trial where no particular reason for granting it is stated, or several reasons are given by the trial court, but it has been repeatedly held that when the trial court specifically states its reasons for granting a new trial this court may examine the question to see whether the reasons given, as a matter of law, justify the granting of a new trial.
“In Lindh v. Crowley, 29 Kan. 756, it was said:
“ ‘Where a motion is made for a new trial and the trial court sustains the motion for a manifestly insufficient reason, and it does not appear from the record brought to the supreme court that there was any sufficient reason for granting a new trial, the order of the trial court granting the new trial will be reversed.’ (Syl. ¶ 3.)
“See, also, Johnson v. Town Co., 7 Kan. App. 134, 53 Pac. 87; A. T. & S. F. Rld. Co. v. Brown, 51 Kan. 6, 32 Pac. 630; Sovereign Camp v. Thiebaud, 65 Kan. 332, 69 Pac. 348; Railroad Co. v. Werner, 70 Kan. 190, 78 Pac. 410; Sutter v. Harvester Co., 81 Kan. 452, 106 Pac. 29; Thompson v. Seek, 84 Kan. 674, 115 Pac. 397; Ahlstrom v. Kansas Milling Co., 85 Kan. 548, 118 Pac. 57.
“In Atkinson v. Darling, 107 Kan. 229, 191 Pac. 486, the rule is thus stated:
“ ‘Ordinarily no reversible error can be based upon the granting of a new trial unless the trial court indicates the exclusive and specific ground upon which the new trial is granted, and unless that ground happens to be one which the supreme court is in as good a position to consider and determine as the trial court.’ (Syl. ¶ 2.)
“And see, also, Bowers v. Carlson, 139 Kan. 396, 32 P. 2d 246.
“The case before us falls within this class. So we are confronted with the question as to whether the reason given by the trial court for granting a new trial was legally justified. The pertinent portion of our statute (G. S. 1935, 60-2918) reads:
“ ‘In all cases the jury shall render a general verdict, and the court shall in any case at the request of the parties thereto, or either of them, in addition to the general verdict, direct the jury to find upon particular questions of fact, to be stated in writing by the party or parties requesting the same. . . . When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly.’ (Emphasis ours.)
“In this case special questions were properly submitted to the jury and the court properly instructed the jury that it should answer the special questions as they found the facts to be without regard to the effect their answers might have on the general verdict. It is not infrequent, as many of our cases disclose and as the statute evidently contemplated might be true, that the special findings of fact are in conflict with the general verdict, and the legislature provided which should control in such an event. The statutory provision is that the special findings shall control, and that has been the repeated holding of this court. (See the many cases on this point annotated under the statute.) A conflict between the special findings of fact and the verdict is not given in our statute as one of the grounds for granting a new trial. Indeed, the statute provides for the contrary, namely, that the judgment should be rendered on the special findings of fact. We think it is as novel as it is unsound to grant a new trial for the reason that there is a conflict between the findings of fact made by the jury and the general verdict.
“The result is that the ruling of the court in granting a new trial in this case cannot stand. The findings of fact returned by the jury, being sustained by the evidence and so treated by the trial court, which in fact approved them as being sustained by the evidence, must control the judgment therein entered.” (l. c. 532.)
The court held:
“In action for damages for personal injuries, the jury returned a verdict for plaintiff and answered special questions, clearly finding plaintiff guilty of negligence which caused or contributed to his injury. Held, under our statute (G. S. 1935, 60-2918) it is the duty of the court to sustain defendant’s motion for judgment in its favor on the answers to the special questions notwithstanding the general verdict; and where the court in effect approved the answers to the special questions it had no authority to grant a new trial upon the ground a conflict existed between the general verdict for plaintiff, which had inherent in it a finding that plaintiff was not guilty of contributory negligence, and the answers to the special questions clearly showing his negligence.” (Syl. ¶ 6.)
And see, also, Craig v. Sturgeon, 151 Kan. 208, 98 P. 2d 139, where it was held that an answer to a special question may not be set aside merely because it is inconsistent with the general verdict.
In the instant case, all the post-trial motions were presented at one time. The trial court remarked that the jury were instructed that if they found the defendants were guilty of negligence but found the plaintiff was guilty of negligence they should find in favor of the defendants but that they found a verdict for plaintiff and then found the plaintiff was negligent. Referring to the defendants’ claim that plaintiff was guilty of negligence as a matter of law, the court stated it had instructed the jury that was not the law. “But there was evidence there was negligence on her part, and they thought so. And then they find for the plaintiff. They found both ways, as far as the plaintiff is concerned.” And it further stated the only solution was to give the parties a new trial. As previously indicated, the trial court then denied the post-trial' motions except plaintiff’s amended motion for a new trial which it sustained.
We are of the opinion that the instant case is controlled by the reasoning and holding of the Ferguson case, and that it must be and is held that the trial court erred in not sustaining the defendants’ motion for judgment on the answers to the special questions and notwithstanding the verdict, and in its ruling sustaining plaintiff’s motion for a new trial. Those rulings and judgments are reversed and the cause is remanded to the trial court with instructions to sustain the defendants’ motion and to render judgment for the defendants. | [
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The opinion of the court was delivered by
Price, J.:
This is an original proceeding in mandamus in which petitioner seeks to compel the respondents to perform certain duties imposed upon them by statute arising out of the formation of petitioner rural high-school joint district. Briefly summarized, the petition alleges the following:
Prior to the attachment proceedings hereinafter described, Rural High-school District No. 1 of Neosho county was a duly organized and exisitng rural high-school district, with its territory comprising all of Grant township in Neosho county and no other. The district had been organized for many years and had continuously operated its rural high school with the school buildings being located at Stark, in the district. On January 7, 1949, a majority of the electors residing in a territory consisting of approximately twenty sections of land in Allen county and approximately eight sections of land in Bourbon county, all of which was not within the limits of any rural high-school district, but which was adjacent to the territory of Rural High-school District No. l'of Neosho county, made written application to the board of the latter district for the attachment of said territory to the rural high-school district for rural high-school purposes. On the same date this application was unanimously approved by the rural high-school board and on the following day, January 8, 1949, the county superintendent of public instruction of Neosho county consented to and approved the attachment of the territory to Rural High-school District No. 1 of Neosho county and made a record thereof. On January 19, 1949, a notice of the attachment of the territory involved was published by the county superintendent of public instruction of Neosho county, as provided by law, and that as a result of the attachment proceedings and the publication of the notice Rural High-school District No. 1 of Neosho county became a rural high-school joint district and is now Rural High-school Joint District No. 1 of Neosho, Allen and Bourbon counties.
The petition then alleges that thereafter a number of electors of the attached territory and the board of county commissioners of Allen county appealed to the state superintendent of public instruction from the order of attachment made on January 8; that such appeal was heard by the state superintendent of public instruction on March 10, 1949, and was by him denied on April 26, 1949. It is then alleged that on or about May 24, 1949, the county superintendent of Neosho county notified the county clerks and county superintendents of Allen and Bourbon counties of the fore going attachment proceedings, but that on the last Monday of May, 1949, the county superintendents of Allen county and Bourbon county failed, neglected and refused to certify the boundaries of Rural High-school Joint District No. 1 of Neosho, Allen and Bourbon counties, as provided and required by G. S. 1935, 72-218, and that said officials still fail, neglect and refuse to do so; that the school building and the greater portion of territory of the petitioner district lie within Neosho county; that under the circumstances it is the duty of the county clerks of Allen and Bourbon counties to furnish the county clerk of Neosho county with the assessed valuation of the territory of said district lying within each of said Allen and Bourbon counties; that a written request and demand for such assessed valuation was made on or about August 17, 1949, upon the respondent county clerks of Allen and Bourbon counties by the respondent county clerk of Neosho county, in order that the latter could determine the levy of said district for rural high-school purposes and certify the same to the county clerks of Allen and Bourbon counties to extend on the tax rolls of the property in their respective counties lying within the boundaries of petitioner district, but that the county clerks of Allen and Bourbon counties refused to make such certification.
The prayer is for an order of this court directing and requiring the county superintendents of Allen and Bourbon counties to certify to the county clerks of their respective counties the boundaries in their respective counties of petitioner district, and for a further order directing and requiring the county clerks of Allen and Bourbon counties to certify to the county clerk of Neosho county the assessed valuation for the year 1949 of the taxable property of the territory of said petitioner district within each of those two counties, so that the respondent county clerk of Neosho county can determine the tax levy for 1949 on all taxable property of petitioner district and certify such levy to the respondent county clerks of Allen and Bourbon counties to be extended by them on the tax rolls of the property of said district in their respective counties. .
To this petition the respondent county superintendents and county clerks of Allen and Bourbon counties filed demurrers on the ground that the petition fails to state facts sufficient to constitute a cause of action against such respondents and to justify the relief sought.
The respondent county clerk of Neosho county filed a motion to dismiss as against him on the ground that he is not a necessary party to the controversy and that he was made a respondent in the action only for the reason that he refused to join as a petitioner and that he has been and is ready, willing and able at all times to perform his official duties. This motion to dismiss has been heretofore by this court sustained and the county clerk of Neosho county is no longer a party to this proceeding.
Various contentions are made by the parties to this action but briefly summarized they are as follows:
The position taken by petitioner district is that the attachment proceedings are in full compliance with the provisions of G. S. 1935, 72-3514; that the county superintendents of Allen and Bourbon counties are required to certify the boundaries of petitioner district as to the territory of the district in their respective counties under the provisions of G. S. 1935, 72-218; that the taxable property within the boundaries of petitioner district in Allen and Bourbon counties is subject to the 1949 tax levy of the petitioner district, and that the county clerks of Allen and Bourbon counties are required by law to certify to the county clerk of Neosho county the assessed valuation of the taxable property within the boundaries of petitioner district in their respective counties so that the county clerk of Neosho county can determine the 1949 tax levy on all taxable property of the district.
On the other hand, the contention of the respondents is that the attachment.proceedings were not in full compliance with the provisions of G. S. 1935, 72-3514, in that the consent of the county superintendents of Allen and Bourbon counties was not obtained, and further, that if such consent by the county superintendents of Allen and Bourbon counties was unnecessary, then that the effective date of the formation of petitioner district was April 26, 1949, that- being the date of the decision by the state superintendent of public instruction, in which event the attached property located in Allen and Bourbon counties would not be subject to the 1949 tax levy of petitioner district because of the provisions of G. S. 1935, 79-1807.
Going one step farther it may be said that there are in reality only two questions presented to us for decision:
First. Under the facts, of this case was it necessary to obtain the consent of the county superintendents of Allen and Bourbon counties in order to form petitioner district under the provisions of G. S. 1935, 72-3514?
Second. If such consent by the county superintendents of Allen and Bourbon counties was unnecessary under the statute referred to, when was the effective date of the formation of petitioner district?
The provisions of G. S. 1935, 72-3514, material for our purposes, are as follows:
“Territory outside the limits of any rural high-school district, but adjacent thereto, may be attached to such high-school district for high-school purposes, upou application being made to the rural high-school board by a majority of the electors of such adjacent territory, and upon the approval of said rural high-school board and the consent of the county superintendent of public instruction: (Provided, that an appeal may be taken from the decision of the county superintendent to the board of county commissioners, if such property proposed to be attached is within one county, and to the state superintendent of public instruction if same be within two or more counties, whose respective decision in either case will be final. . . .) The county superintendent shall make a record of such attachment of territory and shall publish a notice of the same, and thereafter such attached territory shall be and compose a part of such rural high-school district for such rural high-school purposes only and the taxable property of such adjacent territory shall be subject to taxation and shall bear its full proportion of all expenses incurred in maintaining said rural high school.”
We think the answer to the first question is to be found in the case of State, ex rel., v. Rural High-school Dist., 134 Kan. 674, 8 P. 2d 330, the facts of which are quite similar to the instant case. In that case Rural High-school District No. 1 of Norton county was an organized existing rural high-school district. All of the territory comprising it was situated in Norton county, the southern boundary of the district being the south line of the county. The majority of the residents of certain described adjacent territory situated in Graham county, and not at that time within any rural high-school district, petitioned the high-school board of Rural High-school District No. 1 of Norton county and the county superintendent of that county to be attached by annexation to Rural High-school District No. 1 of Norton county. The petition was approved by the board of such district and the county superintendent of Norton county gave her consent in writing to such attachment, made the appropriate record of the same and duly published the notice of the attachment of such territory to the district. The county superintendent of Graham county was not consulted about this proceedings and did not give his consent thereto. Thereafter Rural High-school District No. 1 of Norton county assumed to exercise authority and jurisdiction for school purposes over the territory in question and later proceedings were had attempting to attach the territory in controversy, together with other territory, to Rural High-school District No. 3 of Graham county. Litigation arose and when the controversy reached this court it was held that the statute (72-3514) controlled the formation of the rural high-school district and that the consent of the county superintendent of Graham county to such attachment was not required. In the case at bar the county superintendents of Allen and Bourbon counties are in the same position as the county superintendent of Graham county in the case referred to. Respondents frankly admit that their theory with respect to the consent of the county superintendents of Allen and Bourbon counties being necessary appears to be in conflict with the holding in the above cited case, but contend that the precise point here urged was not before nor decided by the court in that case, except perhaps inferentially, and they call our attention to the recent case of Lenora Rural High School v. McGuire, 161 Kan. 716, 171 P. 2d 291, as support for their contention.
In that case the petitioner district was an existing rural high-school joint district — that is, it consisted of territory in more than one county and it was held that upon an application of electors to attach adjacent territory, outside the limits of any rural high-school district, to an existing rural high-school joint district requires the consent of the superintendent of the county in which the school building is located and the superintendent of the county in which the adjacent territory is situated. However, the facts and reasoning of the court in the two cases are readily distinguishable. In the former case the original rural high-school district consisted of territory in one county only, while in the latter case the petitioner district was a rural high-school joint district consisting of territory in two counties, and in the opinion in the latter case it was said:
“The case of State, ex rel., v. Rural High-school Dist., 134 Kan. 674, 8 P. 2d 330, also relied upon by petitioner is not directly in point. That case, as previously indicated, involved the creation of the instant petitioner joint district. In other words, in that case we did not have the question of attaching adjacent land to an existing joint high-school district. Under those circumstances we held the statute completely covered the case and that the consent of the county superintendent of Graham county was not necessary.”
We think that the two foregoing decisions make it clear that in a situation such as is presented in the case at hand the statute (72-3514) is exclusive and controlling, and that the consent of the county superintendents of Allen and Bourbon counties was not necessary for the valid formation of petitioner district.
This brings us to the question as to the effective date of the formation of petitioner district. Petitioner contends the formation was effective as of January 19, 1949, the date the notice was published by the county superintendent of Neosho county. Respondents argue that the effective date would be April 26, 1949, that being the date the state superintendent of public instruction announced his decision in the matter. The question is important because of G. S. 1935, 79-1807, which provides:
“Any alterations, additions to, or changes in, the boundaries of any school district, municipality, or body politic of the state of Kansas, made according to law, shall take effect for taxation purposes on the last day of February following : . . .”
In other words, if petitioner’s theory is correct the attached territory located in Allen and Bourbon counties would be liable for its proportionate share of the 1949 tax levy for the district, while if respondents are correct then such territory would not bear any of the tax burden of the district until 1950. We are advised that the budget and tax levy of petitioner district as determined by its electors at the annual school meeting, the same being based upon the inclusion of the taxable property of the district located in Allen and Bourbon counties as well as Neosho county, has been filed by the clerk of the board of petitioner district with the county clerks of all three counties, as required by law, and that students of high-school age residing in the attached territory are now attending the school maintained and operated by petitioner district. It is obvious that if the 1949 tax levy of petitioner district is not made upon the taxable property of the district in Allen and Bourbon counties then the whole 1949 tax levy must be borne by the property within the territory of the district in Neosho county. In support of their theory respondents rely upon the wording of the statute (72-3514) to the effect that where such property proposed to be attached is in two or more counties an appeal.may be taken from the decision of the county superintendent to the state superintendent, whose respective decision will be final, and they argue that by the use of the two words “proposed” and “final” the legislature has definitely established the time when an attachment of territory becomes final, provided an appeal is taken in time and other legal requirements have been met — that time being when the proper appellate authority takes the final action on the proposed attachment. While not cited in connection with the specific point now under consideration, respondents call our attention to the case of Jones v. Chase County Comm’rs, 152 Kan. 278, 103 P. 2d 899, and we note the following language in the opinion:
“Of the regularity of the application for attachment, the approval by the rural high-school board and the consent of the county superintendent there is no question. But that an appeal lies under the above statute may not be doubted, and until that appeal has been disposed of, there has been no attachment.”
In passing, we think that the language quoted was stated too strongly and that it is not determinative of the precise point under consideration in the instant case. Also, when read in connection with the full text of the opinion it is apparent that the language quoted was intended to mean that the right of appeal from the action of the county superintendent in that case was not cut off.
We are unable to agree with the theory of respondents that the attachment is not complete until the appellate authority has rendered its decision and in our opinion the more reasonable and logical interpretation of the words in the statute, “whose decision shall be final,” is that there shall be no further appeal from the decision of the state superintendent of public instruction, and it may well be that the legislature used the words in that sense so as to preclude the possibility of a further appeal under the provisions of G. S. 1935, 60-3301. We are of the opinion that when the county superintendent of Neosho county gave her consent to the attachment- of the territory in controversy on January 8, 1949, made a record thereof and then on January 19, 1949, published the notice of such attachment, the attachment proceedings were then completed and, in the words of the statute:
“ . . . thereafter such attached territory shall be and compose a part of such rural high-school district for such rural high-school purposes only and the taxable property of such adjacent territory shall be subject to taxation and shall bear its full proportion of all expenses incurred in maintaining said rural high school.”
If the legislature had intended that the action of the county superintendent should not take effect until the time for an appeal had expired or, in case of appeal, until the appeal is disposed of, it would have been a very simple matter to have so provided. Nowhere in the statute do we find any provision that the taking of an appeal from the action of the county superintendent can stay or undo the effect of her action. Only a reversal on the appeal would have that effect.
In conclusion, we hold therefore that under the facts of this case the consent of the county superintendents of Allen and Bourbon counties was unnecessary in order to form the petitioner district; that the effective date of the formation of such district was January 19, 1949, and that by the provisions of G. S. 1935, 79-1807, the attached territory became a part of the petitioner district for taxation purposes on the last day of February, 1949.' It therefore follows that the writ of mandamus to compel the respondent county superintendents of public instruction and the county clerks of Allen and Bourbon counties to perform the ministerial acts incumbent upon them by statute, as prayed for in the petition filed herein by petitioner district, should be and the same is hereby allowed.
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The opinion of the court was delivered, by
Harvey, C. J.:
The appeal in this case is from an order of the trial court overruling defendant’s demurrer to plaintiff’s petition, the allegations of which may be summarized as follows: In 1946 plaintiff was engaged in farming in the eastern part of Greenwood county, and in June orally contracted with W. A. Nelson to lease a described twenty-three acres of land owned by him, and on the following terms. Plaintiff was to prepare the seed-bed, furnish the alfalfa seed and phosphate at his own expense and to plant the land to alfalfa and Nelson was to furnish the necessary lime; that plaintiff was to cut and bale the alfalfa for a term of three years, retain one-half of the alfalfa for himself and to deliver to Nelson, free of cost, one-half of the baled alfalfa in a described barn, in which plaintiff could also store his half of the alfalfa; that pursuant to this contract Nelson furnished the lime and limed the field and plaintiff' prepared the ground, furnished the seed and phosphate and seeded the land to alfalfa in the fall of 1946; that in the spring of 1947 plaintiff cut, baled and stored the alfalfa in accordance with the contract; that sometime in the summer (the exact date unknown to plaintiff) Nelson sold the farm to the defendant Sowder and orally informed defendant of the rights of the plaintiff to the alfalfa and of his right to harvest the same for the crop years of 1947, 1948 and 1949; that defendant took possession of the farm in the fall of 1947 with the full knowledge of plaintiff’s rights; that thereafter plaintiff cut and baled the last cutting of alfalfa for 1947 and stored all of the alfalfa in the barn previously mentioned, placing the one-half of the alfalfa belonging to defendant on one side of the barn and the other half belonging to plaintiff on the other side of the barn; that in May, 1948, plaintiff went to the described real estate for the purpose of cutting and baling the alfalfa in accordance with the terms of his contract and found the gate to the field locked; that he contacted defendant and was informed by him not to come upon the premises, as defendant did not intend to recognize the rights of the plaintiff, although he knew plaintiff’s rights at the time of purchasing the property and had recognized them during the latter part of 1947; that plaintiff repeatedly requested permission to enter upon the land for the sole purpose of carrying out the terms of the aforesaid lease, but was refused by defendant, who had proceeded to cut, bale and dispose of the alfalfa, to plaintiff’s detriment. There were allegations as to the value of the crop cut by defendant, for which plaintiff prayed judgment, and also allegations that unless restrained and enjoined from doing so defendant would continue to cut the alfalfa and appropriate it to his own use, to plaintiff’s great damage, for which he had no adequate remedy at law, and plaintiff prayed defendant be restrained and enjoined from doing so.
A restraining order was issued at the time the action was brought and later a temporary injunction was granted upon plaintiff’s giving bond.
The petition was not attacked by motion. Defendant demurred to plaintiff’s petition “on the ground that said petition does not state facts sufficient to constitute a cause of action against defendant and in favor of plaintiff in that said petition of plaintiff shows on its face that the oral agreement alleged in said petition comes within the statute of frauds and is unenforceable and void.” This demurrer was considered by the court upon the briefs and arguments of parties and overruled, from which ruling the defendant has appealed.
Counsel for appellant contend that the oral contract pleaded was void under our statute of frauds, and that part performance does not render it valid. The. statute relied upon reads:
“No leases, estates or interests of, in or out of lands, exceeding one year in duration, shall at any time hereafter be assigned or granted, unless it be by deed or note, in writing, signed by the party so assigning or granting the same, or their agents thereunto lawfully authorized by writing, or by act and operation of law.” (G. S. 1935, 33-105.)
In 37 C. J. S. 771, the rule with respect to part performance of leases is stated thus:
“The doctrine of part performance can be invoked to remove an oral lease or agreement to lease from the operation of the statute of frauds; and in determining what constitutes sufficient part performance for the purpose general rules have been applied.” (Citing cases.)
In Bard v. Elston, 31 Kan. 274, 1 Pac. 565, the resident agent of a nonresident owner of unimproved land leased it orally for^a term of six years and authorized the tenant to go upon the land and improve it, which he did. The tenant continued to farm the land and pay the rent thereon in harmony with the oral agreement for five years, when the owner brought a forcible detainer action against him and relied, in part, upon the statute of frauds (sections 5 and 6). The court said:
“All parol leases exceeding one year in duration are void under said statute, unless partially performed, and are generally void, even then, as to the part not performed. Generally, where a parol lease is made for a term exceeding one year, and the lessee takes possession of the property, and pays a portion of the rent, but does nothing more than this, the lease will be considered valid, but valid only to the extent of creating a tenancy-at-will, or a tenancy from month to month, or a tenancy from year to year, according to the circumstance of the case. . . . (Citations.)
“Mere possession or mere payment of rent will not, as a general rule, make a parol lease for more than one year valid for the full term. But parol leases exceeding one year, as well as other parol contracts with regard to real estate, may sometimes be taken out of the statute of frauds by a part performance of the contract, and by such part performance be made valid to their full extent. . . . (Citations.) But parol leases for more than one year, in order to become valid by a part performance, should generally be such as would by such part performance become substantially a purchase of an interest in the real estate. . . .”
In Deisher v. Stein, 34 Kan. 39, 7 Pac. 608, the syllabus reads:
“Where a land-owner enters into a parol agreement with another person to execute to such other person a written lease for the land for a term of more than one year, and such other person in pursuance of such agreement, and with the consent of the land-owner, enters into the possession of the land, and expends time, labor, money and materials in making improvements upon the land, and in putting it in a condition to use and enjoy it during the term of his contemplated lease, and afterward the land-owner refuses to execute the lease, and- ousts the contemplated lessee from the premises, held, that the parol agreement is not wholly and entirely void under the fifth and sixth sections of the statute of frauds, but is so far valid that the contemplated lessee may recover from the landowner such damages as in justice and equity he should recover; that the taking of the possession of the property, and expending time, labor, money and materials thereon, to this extent takes the case out of the statute of frauds.”
Counsel for appellant quote an excerpt from the opinion in Skinner v. Davis, 104 Kan. 467, 468, 179 Pac. 359;
“The defendants insist that the void lease was validated by part performance — planting wheat. To remove an oral lease from the ban of the statute of frauds, part performance must consist of something more than ordinary use of the land fo»cropping; . . .”
This is in harmony with the statement previously quoted from Bard v. Elston, 31 Kan. 274, 1 Pac. 565. Here the parties were not dealing with an ordinary crop. One of the principal purposes of growing alfalfa is to fertilize the land. The preparation of a seedbed for the growing of alfalfa requires much more labor than for the sowing of wheat, and the seed and phosphates are expensive. Under the facts of this case the trial court might very well have concluded that the improvement of land was to the extent that it would take the case out of the statute of frauds.
Counsel contend that the defendant is the proper party to raise the defense of the statute of frauds. As the grantee of Nelson he may properly be held to be in privity with him. In 37 C. J. S. 719, it is said:
“One who succeeds to all the rights of a party to a contract may plead the statute as against the other party, provided his predecessor in interest might have done so, but not otherwise, . . .”
So the real question is: Could Nelson, in May, 1948, have availed himself of the statute of frauds to stop plaintiff from harvesting the alfalfa and dividing it in 1948 and 1949 without any liability? It seems clear to us he could not have done so. Such conduct would have been taking advantage of the statute of frauds to do the plaintiff an injustice. The plaintiff could have sued for damages based upon quantum meruit. We think defendant here is in no better position. See Nelson v. Street, 148 Kan. 587, 83 P. 2d 793, and the authorities cited therein and the many cases cited in the annotation following a report of the case in 119 A. L. R. 1225.
In the petition plaintiff alleges that defendant knew of this contract at the time he purchased the property, and took the property subject to the contract, and that thereafter he accepted the benefits of it. For the purpose of the demurrer these allegations may be taken as true.
We think the trial court properly overruled the demurrer to the petition and its ruling is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to enjoin defendants from improving or using a public road. Judgment was for defendants on their cross petition enjoining plaintiffs from interfering with the use and maintenance of the road. Plaintiffs have appealed.
The dispute arises from activities of the board of county commissioners and of the parties and their predecessors in interest with reference to a half mile of road in Barber county. Some of these activities took place in 1882. They will be noted in this opinion as we proceed.
The petition alleged the ownership by plaintiffs of a described quarter section; that defendants owned a quarter section south of it and it was occupied by a tenant; the petition then described a half mile of roadway running on the township line from the northwest corner of plaintiffs’ quarter south to the northwest corner of defendants’ quarter; that in 1930 Otis Coyle owned the land owned by plaintiffs and he and C. L. Grigsby and D. L. Grigsby entered into a contract reciting that Coyle owned the east half of section 25 and C. L. and D. L. Grigsby owned the land south of it and it was agreed that a road should be built from the northeast corner of section 25 and running south half a mile to a lane belonging to Coyle; that it should be thirty feet wide and be immediately west of the range line. It should be stated here that this description put the half mile of road contracted for entirely on land owned by Coyle; that C. L. and D. L. Grigsby agreed to repair the east fence of this road and to keep a gate at the south end closed and Coyle agreed to maintain the west fence; that the interest of C. L. Grigsby had passed to D. L. Grigsby; that the Grigsbys had failed to maintain the gates and keep up the fence and to construct the road and were no longer entitled to use it.
The petition then alleged that about May 26, 1947, D. S. Grigsby caused to be filed a petition for a road twenty-five feet wide running from the southwest corner of the northwest quarter of section 30 (that would be the northwest corner of defendants’ quarter section) north on the section line to the northwest corner of section 30; that the commissioners viewed such a road and made an order purporting to open it; that the board had no authority to order such a road constructed; that defendants failed to comply with the order of the commissioners in that they had graded the road, but the grading was not on the section line and they had not constructed automobile gates; that the commissioners had found plaintiffs’ damages to be $300 but defendants had failed to pay them; that defendants had no right to proceed with the construction of the road and its opening would be taking the property of plaintiffs’ for private use. The prayer was that-the defendants be enjoined from constructing the new road or entering upon or using the new one.
To clarify the matter, the petition alleged the existence of a half mile of road leading from defendants’ property across the plaintiffs’ property; that a contract was made almost twenty years ago between the parties or their predecessors in interest to build a half mile of road on the same lines; and about two or three years ago a proceedings was instituted by defendants to locate a new road. Incidentally we learn from counsel and an examination of the map that this particular half mile of road connects at the northwest corner of the northeast quarter of section 30 with a township road which runs a half mile west to connect with the county road to Medicine Lodge.
The answer of defendants admitted all the'facts of the petition up to the alleged contract; denied that either one of the defendants had entered into a contract or had violated the terms of any contract; they admitted the petition to view a road; that proceedings were had before the county commissioners and an appeal taken to the district court. The answer then alleged that on July 5,1882, the county commissioners laid out a public highway known as Highway No. 8, and that a portion of it ran from the north line of section 30 south on the township line for a half mile; that it was in 1883 used for a public road and had been ever since and had never been vacated or abandoned by nonuse. It will be seen this is the same half mile of road described by plaintiffs in their petition.
The pleadings thus far put the burden on plaintiffs to prove the irregularity of the proceedings for the new road.
The prayer of the answer was that injunctive relief be denied plaintiffs.
For their cross petition defendants pleaded that the township board was ready and willing to maintain the road in question, known as road No. 8, but was restrained' from doing so by plaintiffs, who were thus preventing the maintenance of a public road.
The prayer of the cross petition was the portion of road No. 8 in question be declared to be a highway and that plaintiff be restrained from interfering with its use and maintenance.
Plaintiffs’ reply to defendants’ answer was a general denial. They then alleged in an answer to the cross petition that the first public road between Medicine Lodge and Kiowa was known as Road No. 6 and ran through the land in question a mile west of the range line; that on July 5, 1888, the county commissioners laid out a road beginning at a point near Medicine Lodge and running south four miles to a point on section 36, thence southwest until it intersected the road between Medicine Lodge and Kiowa Road No. 6 and the petition prayed that the old road be vacated that lay between the point of intersection just spoken of and the north line of section 25; that this road ran over the half mile, now in controversy, and had been used ever since as a public road and that thereafter Road No. 6 was abandoned. The answer then alleged that on May 7,1883, a petition was received by the county commissioners asking that a road be laid out beginning at the northwest corner of section 24, when as a matter of fact it was the intention of the petitioners, and the survey of the road did begin at the northeast corner of the northeast quarter of section 24, leaving the course of Highway No. 8 and so proceeding at various angles to the Kiowa road and the county commissioners approved the petition and ordered Road No. 8 vacated between these points; that thereafter Road No. 8 was abandoned and was no longer maintained by the county commissioners; that if no record existed of the action of the commissioners it had been lost but that the public generally accepted the change and regarded Road No. 8 as abandoned.
The prayer was that defendants take nothing by their cross petition.
To clarify the matter, this answer alleged in 1882 the opening and use ever since of the half mile in question as part of it, then the vacating of this road in question in 1883.
At the trial the trial court sustained defendants’ demurrer to the plaintiffs’ evidence. There was no appeal from this order. The trial then proceeded on the cross petition of defendants and the answer thereto.
The trial court found the half mile of road in question was duly laid out in 1882 as a part of Road No. 8; that it had been thereafter used and maintained as a public highway, had never been vacated ; that it should be declared a public road and plaintiffs should be enjoined from interfering with the use of it. Judgment was entered accordingly.
Plaintiffs filed a motion for a new trial on the grounds of abuse of discretion, accident and surprise, erroneous rulings in admission of evidence, passion and prejudice and newly discovered evidence. Affidavits of this newly discovered evidence were furnished.
The motion for a new trial was overruled — hence this appeal.
The plaintiffs assign specifications of error, as follows: In holding the defendants could abandon their proceedings to open a road after the commissioners had ordered it laid out; in holding the road at a prior time had been established as a public road, nothing but an order vacating it would be sufficient to change its character; in holding that the abandonment of a public road by the public did not change its character; in holding the order of the county commissioners declaring a private road and prescribing automobile gates was valid; in granting defendants an injunction; in overruling plaintiffs’ motion for a new trial; in refusing to allow plaintiffs to amend their petition; and in rejecting testimony proffered plaintiffs.
The first argument of plaintiffs is that the trial court erred in holding the defendants could abandon their proceedings to open a road after the county commissioners had ordered the route to be laid out as a road and show that it was already a public road. It will be remembered the plaintiffs pleaded in their petition the filing by defendants of proceedings to lay out a road along this line and that the board carried out the project in an improper manner, while the defendants admitted these proceedings, alleged they had been properly carried on and stated plaintiffs had appealed to the district court, where the appeal was pending at the time the pleading was filed. We learn from the record here and from statements in the briefs that the district court dismissed the appeal and on appeal this court affirmed it. (See Grigsby v. Coyle, 165 Kan. 445, 196 P. 2d 181.) Appellants cite and rely on authorities where we have held that once the county commissioners have instituted the laying out of a road on the question of damages, the commissioners cannot for the purpose of lessening the amount of damages show that a public road had been laid out prior to the proceedings. This rule is not helpful here. There is no question here of a change in the position taken by the county commissioners. Both sides admitted the proceedings had been had, although plaintiffs claimed they were faulty. Whether they were faulty does not appear on this record. Plaintiffs complain in their briefs that their land is being taken for a road without compensation. This refers to the $300 damages awarded the Coyles in the road proceedings. This action was brought to enjoin the Grigsbys from improving the road. Such an action is not the proper proceedings to collect their damages. At first reading it would appear that the road proceedings of 1947 were pleaded by plaintiffs in order to show they were faulty and incomplete and did not confer any rights on defendants. No attempt was made by plaintiffs to establish the facts alleged. After all is-said and done this action was actually tried and determined not on the regularity or irregularity of the road proceedings but on matters that transpired in 1882 and 1883 and since with reference to laying out of roads. One other reason appears why this argument is not good. The record discloses the travel has been first in one line and later in another a short distance west. The record is not at all clear that the road laid out by the county commissioners in 1947 is on the identical ground formerly used, however.
Plaintiffs next argue the trial court erred in holding the half mile of road in question had ever been established as a public road. The plaintiffs’ pleadings admitted this. Furthermore,' the old records tended to substantiate the pleadings. Plaintiffs state in their brief there was no parol evidence it had been used as a public road. One of the plaintiffs testified the road had been used although he testified that after the contract pleaded had been signed travel had been a short distance east of where it had been before. There seems to have been no dispute but there had been a road in that general location ever since the country was settled. Ever since 1882 defendants have used this road to travel from their farm home to the township road.
Plaintiffs next argue the trial court erred in refusing them permission to amend their answer to defendants’ cross petition. In this connection plaintiffs point out they had alleged that Road No. 8 had been laid out and used as a public road from 1882 until the present time. At the trial they asked permission to amend this pleading by denying the above. The court pointed out the pleading had been filed after the action had been pending a considerable time and plaintiffs had ample opportunity to ascertain the facts. The denial or the granting of such a request is within the discretion of the court so long as the amendment does not substantially change the claim. (See G. S. 1935, 60-759; also, Blashum v. St. Joseph Catholic Society, 140 Kan. 290, 36 P. 2d 957.) As a matter of fact, this amendment would have been a complete reversal of the position taken by the plaintiffs up to that time. The court did not err in denying this request. Furthermore, there is evidence in the record from which the court would have been justified in finding that the road had been laid out and used.
The plaintiffs next argue two questions together, that is, that the court erred in holding that if the road had been established a? a public road at some time in the past nothing but an order vacating would be sufficient to change its character and in holding that the abandonment of a public road by the public for many years did not destroy its character as a public road. In this connection the plaintiffs argue that when the public generally ceased to use Highway No. 8 along the whole distance and the traffic generally moved along the road a mile east, this constituted an abandonment of the entire length of Highway No. 8 regardless of whether this half mile in question continued to be used. Such is not the rule in this state. (See Elbe v. State, 77 Kan. 179, 93 Pac. 803; McAlpine v. Railway Co., 68 Kan. 207, 75 Pac. 73; and Webb v. Comm’rs of Butler Co., 52 Kan. 375, 34 Pac. 973.) This is not intended to be a complete list of our authorities on this question. Plaintiffs furnished us none to the contrary.
Plaintiffs next argue the court erred in granting an injunction restraining plaintiffs from interfering with defendants’ travel and improvement of the road. There does not seem to be any question but that there was the road along this line and that it was the only way defendants could get from their farm to the highway. There does not seem to be any question but that they had been traveling upon that general location since 1882. It does appear that there had been some controversy between all the parties as to the rights of defendants to the use of it. The controversy should be settled. The court was correct in granting the injunction.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
Following our former opinion, counsel for appellant filed a motion for rehearing, which was granted, and the case was set for our July session. It was reargued by counsel, who filed additional briefs, and a brief was filed amici curiae. The court has reconsidered the questions orginally argued and those argued on the rehearing, and has also considered the briefs, and finds no reason to disturb its former decision.
The court adheres to the order of affirmance. | [
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The opinion of the court was delivered by
YaleNTINE, J.:
This case has been brought to this court upon a “case-made,” which is a model of brevity and clearness, and reflects great credit upon the able counsel who prepared it. The case has also been very ably presented to this court by counsel on both sides, and if we should err in its decision, it will not be their fault. ‘ The amount involved in this controversy seems to be small and trifling, but the principles involved are supposed to be of vital importance, and counsel for plaintiff in error, defendant below, says that the decision of the case involves the possible liability for not only many dollars, but many hundreds of thousands of dollars. We have therefore given the case a very careful consideration.
The record of .the case, as presented to this court, shows that on October 4, 1883, David Atchison filed his petition in the district court of Leavenworth county, in which petition he alleged, among other things, that he was then and had been for more than five years the legal and equitable owner of a certain piece of land, describing it, situated in Platte county, state of Missouri, and being on what is commonly known as “ Leavenworth Island; ” that the defendant, George McGonigle, did, on or about March 1,1883, unlawfully and wrongfully enter upon said premises and dig sand thereon, and remove, take and carry away to the city of Leavenworth, and convert and appropriate the same to his own use, to wit, 200,000 bushels, of the value of one cent per bushel, to the damage of the plaintiff in the sum of $2,000, and prayed judgment for the sum of $2,000 and costs. To this petition the defendant answered, the answer being a general denial. Upon the issues as thus made, the cause came on for trial before the court and a jury; whereupon the defendant objected to the introduction of any testimony, upon the ground that the petition did not state facts ■sufficient to constitute a cause of action of which the district court had jurisdiction. This objection was overruled by the court, and the trial proceeded, and resulted in a verdict of $1 for the plaintiff. The defendant moved for a new trial upon the ground of error of law occurring at the trial and duly excepted to, which motion was overruled, and the defendant excepted. Judgment was then rendered in favor of the plaintiff and against the defendant for $1 and costs, to which judgment the defendant excepted, and now brings the case to this court for review.
Counsel for plaintiff in error, defendant below, states in his brief that the question involved in this case is as follows: “ Is this a local or a transitory action ? Is it trespass quare elausum fregit, or trespass de bonis asportatis?” We think the question may be more properly stated as follows: Do the facts of this case show a cause of action that is transitory, or one that is purely local? Or in other words, do the facts of this case show a cause of action in the nature of trespass de bonis asportatis, or trover, on the one side, or trespass quare elausum fregit, on the other side? If the facts show a cause of action in the nature of trespass de bonis asportatis, or trover, then the action is certainly transitory; but if they show only a cause of action in tbe nature of trespass qucire dcmsum fregit, then the action is admittedly local. The distinction between transitory and local actions, both at common law and under the code, is generally and substantially as follows: If the cause of action is one that might have arisen anywhere, then it is transitory; but if it is one that could only have arisen in one place, then it is local. Hence actions for injuries to real estate are generally local, and can be brought only where the real estate is situated; while actions for injuries to persons or to personal property, or relating thereto, are generally transitory, and may be brought in any county where the wrongdoer may be found. These propositions we suppose are conceded. But the real contention between the parties to this action is, whether the real and substantial grievance set forth by the plaintiff as the foundation for his action is one which relates merely to real estate, or one which may be considered as fairly relating to personal property. The petition states wrongs relating both to real estate and to personal property. It states that the defendant unlawfully and wrongfully entered upon the plaintiff’s premises, in Missouri, and dug sand thereon. This of course was a wrong relating to real estate only; but the petition also states that after the sand was severed from the real estate, the defendant then removed the same to Leavenworth city, Kansas, and there converted and appropriated the same to his own use ■ and these last-mentioned wrongs certainly relate to personal property only; for as soon as the sand was severed from the real estate it became personal property.
This principle, of things becoming personal property when severed from the realty, is universally recognized by all courts and by all law-writers. Besides, the plaintiff in this case, after alleging the above-mentioned wrongs, then asks for damages only for the wrongful conversion of the sand, which was personal property, and does not ask for damages' for injuries done to his real estate. He seems to waive all the wrongs and injuries done with reference to his real estate and to his possession thereof, provided the digging and the removal of the sand was any injury to either, and sues only for the value of the sand which was converted. We think it is true as is claimed by the defendant, that the petition states facts sufficient to constitute a cause of action in the nature of trespass quare clausum fregit; but it also states facts sufficient to constitute a cause of action in the nature of trespass de bonis as-portatis, and of trover; and we think the plaintiff may recover upon either of these latter causes of action, for they are unquestionably transitory; although it must be conceded that he cannot recover upon the former cause of action, for it is admittedly local in its character, and because the plaintiff has brought his action in a jurisdiction foreign to the one where this local cause of action arose. But as the plaintiff' asks no relief pertaining specially to the local cause of action, but only such as may be given upon the facts of the transitory cause of action, we think he may recover.
All the old forms of action are abolished in Kansas. We now have no action of trespass quare clausum fregit,-nor of trespass de bonis asportatis, nor of trover; but only one form of action, called a civil action. (Civil Code, § 10.) And under such form of action all civil actions must be prosecuted; and all that is necessary in order to state a good cause of action under this form is to state the facts of the ease in ordinary and concise language, without repetition. (Civil Code, § 87.) And vrhen the plaintiff has stated the facts of his case, he will be entitled to recover thereon just wdiat such facts will authorize. (Fitzpatrick v. Gebhart, 7 Kas. 42, 43; Kunz v. Ward, 28 id. 132.) We now look to the substance of things, and not merely to forms and fictions. If the facts stated by the plaintiff would authorize a recovery under any of the old forms of action, he will still be entitled to recover, provided he proves the facts. If the facts stated would authorize one or two or more kinds of relief, he may then elect as to which kind of relief he will obtain; and the prayer of his petition will generally indicate his election. And if one kind of relief is beyond the jurisdiction of the court, and the other within such jurisdiction, the plaintiff may elect to receive that kind of relief which is within the jurisdiction of the court.
We think the plaintiff may maintain his present action as an action in the nature of trespass de bonis asportatis, or tro-ver. When the sand was severed from the real estate it became personal property, but the title to the same was not changed or transferred. It still remained in the plaintiff. He still owned the sand, and had the right to follow it and reclaim it, into whatever jurisdiction it might be taken. He could recover it in an action of replevin, (Richardson v. York, 14 Me. 216; Harlan v. Harlan, 15 Pa. St. 507; Halleck v. Mixer, 16 Cal. 574;) or he could maintain an action in the nature of trespass de bonis asportatis, for damages for its unlawful removal, (Wadleigh v. Janvrin, 41 N. H. 503, 520; Bulkley v. Dolbeare, 7 Conn. 232;) or he could maintain an action in the nature of trover, for damages for its conversion, if it were in fact converted, (Tyson v. McGuineas, 25 Wis. 656; Whidden v. Seelye, 40 Me. 247, 255, 256; Riley, v. Boston W. P. Co., 65 Mass. 11; Nelson v. Burt, 15 Mass. 204; Forsyth v. Wells, 41 Pa. St. 291; Wright v. Guier, 9 Watts, 172; Mooers v. Wait, 3 Wend. 104;) or he could maintain an action in the nature of assump-sit, for damages for money had and received, if the trespasser-sold the property and received money therefor, (Powell v. Rees, 7 Ad. & L. 426; Whidden v. Seelye, 40 Me. 255; Halleck v. Mixer, 16 Cal. 574.) See also in this connection the case of Fanson v. Linsley, 20 Kas. 235.
In all cases of wrong, the tort or a portion thereof may be waived by the party injured, and he may recover on the remaining portion of the tort or on an implied contract, provided the remaining facts will authorize such a recovery. Mr. Waterman, in his work on Trespass, uses the following language:
“ SbctioN 1102. Although as standing trees are part of the inheritance, and the severing them from it is deemed an injury to the freehold, for which trespass quare clausum fregit is the appropriate remedy, yet the party may waive that ground of recovery, and claim the value of the timber only thus severed and carried away. In the one case, the entering and breaking of the close is the gist of the action; in the other, the taking and carrying away of the property. In the latter case, the action is transitory, and not local.” (See also Nelson v. Burt, 15 Mass. 204; Halleck v. Mixer, 16 Cal. 574.)
The plaintiff in error, defendant below, has cited a large number of authorities, but under our code of practice and procedure they hardly apply to the facts of this case. Those nearest applicable are the following: Am. Un. Tel. Co. v. Middleton, 80 N. Y. 408; Frost v. Duncan, 19 Barb. 560; Howe v. Willson, 1 Denio, 181; Sturgis v. Warren, 11 Vt. 433; Baker v. Howell, 6 Serg. & R. 476; Powell v. Smith, 2 Watts, 126; Uttendorffer v. Saegers, 50 Cal. 496. The case of The Telegraph Company v. Middleton, supra, was where the defendant committed a trespass by cutting down telegraph poles in a highway, and throwing them in the ditches and on the fences on the sides of the highway, and leaving them there. There was no asportation from the premises, no conversion, and no intended asportation or conversion; and the court held that the action was therefore trespass quare clausum fregit, and not trover, and that the action was therefore local in its character and not transitory. The case of Frost v. Dimean, supra, was not decided by a court of last resort; and the main question decided was that two causes of action were improperly joined in one count. Besides, in that case the defendants were in the actual possession of the land, claiming the same as their own under a deed. The next four cases were not decided under any reformed code of procedure, and we do not think that the seventh and last case cited conflicts with the views that we have expressed. The fact that the question of title to real estate was incidentally raised in this case makes no difference. See the cases heretofore cited, and especially Harlan v. Harlan, 15 Pa. St. 507; Halleck v. Mixer, 16 Cal. 574. The plaintiff was in possession, claiming to own the property, while the defendant was a mere wrongdoer, with no claim of interest in the land.
We have so far considered this case as though it made no difference whether the sand was severed from the real estate and carried away by one act only, or by two or more; nor do we think that it can make any difference. Under any circumstances, the sand remains the property of the owner of the land until he chooses to abandon the same. We suppose that if the sand were severed from the real estate by one act, and then carried away by another, this proposition would not be questioned, and probably it will not be questioned even if the sand was severed and carried away by a single act; and if the sand remains the property of the owner of the real estate, as we think it does, there can be no good reason why he should not be entitled to all the remedies for its recovery, or for loss or damages for its injury, or detention or conversion, which he might have with respect to any other personal property.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
JOHNSTON, J.:
Eliza Reihl brought this action to quiet title to lot No. 8, in block No. 109, in the city of Winfield, against a tax deed held by the defendant Joseph Likowski. She alleged in her petition that she, as the widow, and John A. Reihl and Charles A. Reihl, her two minor sons, were the sole heirs-at-law of Jacob Reihl, who died intestate, in the month of July, 1877, seized in fee simple of the lot in controversy, and that she and the minor heirs have the legal title to the lot and are in the peaceable possession of the same. She sets forth the tax •deed under which.she says the defendant claims, and alleges it to be invalid for several reasons that are stated.
The defendant -filed an answer and cross-petition, in which he first sets up his tax' deed; and then for a cause of action against the plaintiff and the minor heirs, he alleges that he is the owner and has the equitable title to the undivided one-half •of the real estate in controversy; that prior to April 9, 1873, •Jacob Reihl, deceased, was the owner of the undivided one-half ■of said real estate, and C. C. Harris and B. B. Dougherty together owned the other undivided half thereof, and that on the last said day, the defendant purchased from Harris and Dough-erty their interest in the lot and paid them therefor the sum of $250, and thus Jacob Reihl and the defendant became the joint owners of said real estate, each owning an undivided one-half thereof; that Jacob Reihl had become surety upon a bond given by the defendant under the dramshop act, and to indemnify him from loss by reason of such suretyship, the defendant procured the deed of the lot to be made directly from Harris and Dougherty to Reihl, it being understood and agreed that if the defendant saved Reihl harmless, by reason of signing his bond, then Reihl, on May 1,1876, would reconvey this interest to the defendant. This agreement was reduced to'writing, and is set forth in the defendant’s cross-petition. The defendant then entered into the full possession of the entire lot, and continued therein until after the death of Jacob Reihl. He further alleges that he kept the said Jacob Reihl harmless, by reason of his signing the bond, but that Reihl died without reconveying the property in accordance with the agreement. The defendant also stated that while he was in possession of the property he made valuable improvements thereon, with the knowledge and consent of Jacob Reihl, and paid the taxes thereon for several years; that soon after the death of Jacob Reihl, the plaintiff gained possession of the real estate, and since that time has collected and appropriated to her own rise, rents to a considerable amount, one-half of which he alleges is due him, but which the plaintiff refuses to pay. He therefore asks for a recovery of one-half of the lot in question, and for an accounting and judgment for the amount found due him for improvements, taxes, and rents, and that the same be made a charge upon the other undivided half of the lot, and he also asks that partition be made thereof.
The minor heirs were made parties, and a guardian ad litem appointed for them, who filed an answer to the cross-petition of the defendant, denying the interest therein set forth and claimed by the defendant. The action was tried by the court at the October term, 1883, and it found that the defendant’s tax deed was void, but that the allegations set up by the defendant in his cross-petition were true; that he was the equitable owner of the undivided one-half of the real estate in controversy; that the plaintiff and the minor heirs together held the legal title in trust for him, and that he was entitled to have partition made thereof, and decreed accordingly. The plaintiff and the minor heirs bring the case to this court for review.
The first point made by them is, that the court erred in overruling their motion to require the defendant to elect upon which of the two defenses that were set forth in his answer and cross-petition be would rely, it being alleged that they were inconsistent with each other, and to strike out the remaining defense. It appears from the record that such a motion was made and overruled, but it was addressed to the original answer and cross-petition of the defendant. Issue was not joined upon that pleading, as it appears that some time after the decision of the court upon the motion, the defendant upon leave of court filed an amended answer and cross-petition. This latter pleading superseded the original answer filed by the defendant, and the plaintiff is therefore precluded from insisting on defects in the former one. (Jockers v. Borgman, 29 Kas. 109 ; Garanflo v. Cooley, ante, p. 137.)
It is next contended by the plaintiffs in error, that the cause of action set up by the defendant in his cross-petition was barred by the statute of limitations. It was alleged in the cross-petition, and also found by the court, that Likowski was the real owner of the undivided one-half interest in the lot purchased from Dougherty and Harris on March 8, 1873, the purchase-price of which was paid by Likowski. The legal title to this interest in the lot was held by Jacob Reihl in trust for Likowski. The statute of limitations therefore could not run as between them so long as the trust subsisted. The plaintiffs in error took the property subject to this trust. Where the legal title to realty is in one person and the real interest is in another, the statute does not run until there is a renunciation of the trust, or until the party holding the legal title by some act or declaration asserts a claim adverse to the interest of the real owner. There was no denial of the trust by Jacob Reihl during his lifetime, nor was there ever any act of hostility done or adverse claim made by him. He openly acknowledged that the defendant was the joint owner with him in the lot, and from March 9, 1873, they held the premises as tenants-in-common, and the stipuláted rent thereof was equally divided between them. The first disavowal of the trust and adverse action were when Eliza Reihl took exclusive possession of the premises and asserted that the defendant had no right or interest therein. This was in August, 1877, and about a month after the death of Jacob Reihl, and the statute therefore did not begin to run against the defendant until that time. However, the time when the statute began to run is not very-important in this case, as in our opinion the fifteen-year statutory limitation is the one which is applicable here, and that period had not elapsed since the parties first became jointly interested in the real estate in question.
The defendant’s cause of action stated by him in his cross-petition is substantially one for the recovery of real property. The accounting and partition asked for by the defendant are incidental to the main action. The defendant, as was alleged . and found, is the real owner of an undivided one-half interest in the premises. He jointly owned the lot with the heirs-at-law of Jacob Reihl. They denied his ownership and interest in the lot, and excluded him from the possession of the same. He sought by the action to recover the possession of the property, and at the same time to have all adverse claims thereto settled and adjusted. Clearly, then, the action comes within the provisions of the fourth subdivision of §16 of the code, and the statutory limitation of fifteen years is the one which is applicable.
The case of Main v. Payne, 17 Kas. 608, cited by the plaintiffs in error is not an authority against the-maintenance of this action. While in that case the plaintiff alleged that she was the equitable owner of the premises, and that the legal title to the property was held in trust for her, and asked that the same be conveyed to her, yet she did not allege that she was out of, or entitled to the possession of the premises, and did not by her action seek to obtain the possession of the property. For aught that appeared in her pleading she was in the possession of the premises, and the court therefore held that the action was not for the recovery of real property. 1
It is also suggested that the defendant’s cause of action ought not to be taken cognizance of, because of the staleness of his demand and of his laehes and negligence in asserting his right of recovery. It is true that equity requires that suitors should be prompt and diligent in pursuit of their rights, and where there has been great delay in suing to enforce a trust, courts of equity sometimes refuse to grant relief and hold the party to have waived his right of relief. But so long as the trust is treated by both parties as subsisting, the right of recovery of the cestui que trust cannot be defeated by mere delay. In this case there was no hostile denial of the trust, and the relations between the parties did not become adverse until August, 1877, and as has been heretofore stated, the defendant’s cause of action did not accrue until that time. The cross-petition of the defendant was filed in December, 1881. There has heretofore not been such a lapse of time as alone will defeat the remedy of the defendant, nor is there anything in the record to show that the plaintiffs in error have been prejudiced by the conduct of the defendant, or by his delay in bringing the action.
Lastly, the plaintiffs in error complain that they were denied a trial by jury. Upon this question they are concluded by the record, as it shows that all the parties appeared in open court and waived a trial by jury, and agreed to submit the cause to the court for trial. Afterward, it appears that there was some dispute between the court and counsel in respect to the waiver, but it is expressly stated in the judgment entry that the parties, including the guardian ad litem, who appeared for the minor heirs, expressly waived a jury trial; and this must be held as controlling in this court. The agreement of the guardian ad litem in this regard was equally binding as in the case of the other parties.
We see no error in the record, and the judgment of the district court will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentiste, J.:
This was an action in equity, brought by Francis Tatro against Daniel E. French and others, asking for a judgment declaring that the defendant, French, held the legal title to a certain piece of land in trust for the plaintiff, Tatro, and that such title should be conveyed to the plaintiff. The case was tried before the court without a jury, and after the plaintiff had introduced all his evidence and rested, the defendants demurred to the evidence, upon the ground that it did not prove any cause of action in favor of the plaintiff and against the defendants. The court sustained the demurrer; whereupon the plaintiff moved for a new trial, which motion was overruled, and then the court rendered judgment in favor of the defendants and against the plaintiff for costs. The plaintiff, as plaintiff in error, now brings the case to this court, and alleges that the court below committed “error in sustaining the demurrer to the evidence and error in receiving evidence.” The only substantial question, however, in the case is, whether the court below committed error in sustaining the demurrer to the evidence. Both Tatro and French claim the land, by virtue of a settlement upon the same under the preemption laws of the United States. Each contested the other’s right to preempt before the United States local land officers at Concordia, Kansas, before the commissioner of the general land office at "Washington, D. C., and before the secretary of the interior, until finally the patent for the land was issued by the government to French; when Tatro commenced this action against French and others to procure the title as aforesaid.
The pi’incipal facts of the case appear to be substantially as follows: On December 16, 1874, the land in controversy was government land, subject to entry under the preemption and homestead laws of the United States; and, for reasons not necessary now to state, it was not subject to entry under sucb laws for some time immediately prior to that date. On that day, both Tatro and French made their settlement upon the land in controversy under the aforesaid preemption laws. As to which made his settlement first, we think it is wholly immaterial under the other facts of the case. Probably both made their settlements at about the same time; but if either-had priority, it was probably French. Tatro filed his declaratory statement for preemption on December 17, 1874, and French filed his on December 18, 1874. All this was done in accordance with the laws of the United States, and with the rules and regulations of the land department. Prior to-December 16, 1874, both Tatro and French had filed declaratory statements for preemption rights upon other and separate tracts of land; but neither was 21 years of age at the time of such first filing, and Tatro was not 21 years of age when he made his second filing; French, however, was 21 years of age at that time. On June 8, 1875, Tatro made a homestead entry upon the land in controversy. On March 6, 1876, a. full hearing upon the contest between the parties for the land in controversy was had before the register and receiver of the-land office at Concordia, and such land officers found all the foregoing facts, and found explicitly that neither of the parties-was 21 years of age when he made his first declaratory statement, and that Tatro was not yet 21 years of age when he made his second declaratory statement on December 16,1874, but that French was 21 years of age at that time; and therefore the land officers at Concordia found in favor of French’s right to preeempt the land in controversy, and found against Tatro’s right either to preempt the land or to preempt any part thereof, or to obtain the same under the United States homestead laws. Tatro appealed to the commissioner of the general land office at Washington, who found the facts and the law to be the same as they had previously been found by the land officers at Concordia. Tatro then appealed to the secretary of the interior, who found the facts to be the same as they had previously been found by the land officers at Concordia and the commissioner of the general land office, but found the law to be different. He found that as French had, prior to December 16, 1874, filed a declaratory statement for preemption upon another piece of land, that his subsequent filing upon the land in controversy was illegal, although he was not 21 years of age at the time when he made his first filing, and was 21 years of age when he • made his second filing; and therefore the secretary of the interior decided in favor of Tatro’s homestead entry of June 8, 1875, Tatro having arrived at the age of 21 years at that time. This decision was made on December 18, 1876, by Hon. Zachariah-Chandler, who was then the secretary of the interior. Immediately thereafter, French made an application for a rehearing and reconsideration of his case; but before any rehearing or reconsideration could be had, Hon. Zachariah Chandler’s term of office expired, and Hon. Carl Schurz became his successor. On September 21, 1877, Hon. Carl Schurz reconsidered the case upon the same evidence and the same facts, and decided the case in favor of French and against Tatro, thereby reversing the previous decision of his predecessor, and affirming the decisions of the commissioner of the general land office and of the land officers at Concordia. Undoubtedly the decision of the Hon. Carl Schurz was right, and that of the Hon. Zachariah Chandler was erroneous; for there is no statute providing, either in terms or by implication, that the filing of a declaratory statement for a preemption right by a person who may at the time be a minor, shall prevent such person, after he has arrived at the full age of 21 years, from obtaining a preemption right to either the same or another piece of land. After this final decision, on September 21,1877, by the secretary of the interior, French perfected his preemption right, purchased the land in controversy by reason thereof, and obtained a patent for the land as aforesaid. We think French is entitled to the land. It can make no difference that the final decision of the secretary of the interior overruled the former /decision of his predecessor, for the final decision was merely upon a question of law, and was right, while the prior decision was also upon a question of law, and was erroneous. Even if the final decision had not been made and the land had been patented to Tatro, still the courts, upon the facts as found by the land officers, would award the property to French upon such terms as might be equitable. And we might here say that the findings of facts as made by the land officers in a contested preemption case, are considered final and conclusive when relief is sought in the courts. (Johnson v. Towsley, 80 U. S. 73; Shepley v. Cowan, 91 id. 331; Moore v. Robbins, 96 id. 530; Marquez v. Frisbie, 101 id. 473, 476.) But whenever the land officers misconceive or misconstrue the law arising upon the facts as found by themselves, in such a case their decisions are not final or conclusive, and the courts may afterward grant the proper relief. (See the last two cases cited.)
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
"Valentine, J.:
This was an action brought by Burrow & White against Webb McNall, upon a written guaranty. It appears from the plaintiffs’ petition, among other things, that on June 1, 1881, Morris B. Leisure and Margaret E. Leisure, his wife, executed a bond and a real-estate mortgage to Gilbert & Gay, to secure a debt for the sum of $200, borrowed money; and that at the same time Webb McNall guaranteed the payment of such debt by executing the following written instrument, to wit:
“For value received, we guarantee the sufficiency of the security for the payment of Gilbert & Gay’s loan of $200 to Morris B. Leisure and wife, secured by mortgage on real estate in Smith county, Kansas; and we further agree to pay to the holder of said loan any balance there may be due thereon after exhausting the said security therefor.
Webb McNall.
Smith CeNter, Kas., June 1, 1881.”
Afterward, such bond and mortgage were assigned to the plaintiffs, Burrow & White, and they foreclosed the same by an action in the district court, and the real estate was appraised and sold according to law, and the sale confirmed; but it did not bring a sufficient sum of money to pay the debt, and the plaintiffs commenced this action against the defendant, McNall, to recover the remainder of the debt, claiming the sum of $112.40. The defendant answered to this petition, admitting the execution of the guaranty, and setting forth as a third defense to the plaintiffs’ action thereon the following, to wit:
“ That said mortgage, given to secure said loan, contained a stipulation ‘ waiving appraisement/ but that execution was issued and sale was made before the expiration of six months from the rendition of judgment upon said debt. A copy of said mortgage is hereto attached, marked ‘Exhibit A/ and made a; part of this answer.”
The plaintiffs demurred to this defense, upon the ground that in law it did not constitute any defense, and the court below sustained the demurrer; and the defendant, as plaintiff in error, now brings the case to this court, and asks that the ruling of the court below, sustaining such demurrer, shall be reversed.
We think the decision of the court below is correct. While it is true, as is claimed by the plaintiff in error, defendant below, that when a person guarantees the collection of a debt, he is liable only after a regular prosecution against the principal party liable, and the use of due and reasonable diligence on the part of the plaintiff to collect the debt by due course of law, yet, under the pleadings in this case, all this was done. The plaintiffs procured a foreclosure of their mortgage, and an immediate sale of the mortgaged property, and presumptively obtained all that the property was worth, and the sale was confirmed. It is objected, however, that the execution was issued and tbe sale made within less than six months from the date of the rendition of the judgment. This certainly shows diligence on the part of the plaintiffs, and no injury to the present plaintiff in error, defendant below. Of course the defendants in the foreclosure action might have objected to the issuance of an execution prior to the expiration of six months from the time of the rendition of the judgment, but presumptively they did not object, but consented thereto, and presumptively the judgment was rendered, the execution issued, the property appraised, and sale made in all respects as though the appraisement of the property had not been waived; but whether the defendants in the foreclosure action consented, or not, the sale is legal and valid, and as the property was presumptively sold at a fair price, no injury has been done to the present plaintiff in error, defendant below, and great diligence has been shown on the part of the defendants in error, plaintiffs below.
The ruling and judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
JOHNSTON, J.:
Joseph Nan Harke, sr., died on the 13th day of March, 1883, leaving as his heirs at law, Lucy Nan Harke, his widow, and Charles Nan Harke, Joseph Nan Harke, jr., John Nan Harke, Susie Nan Harke, Mary Caeman and Lucy Jackson his children. On the 30th day of January, 1874, the decedent made and executed a will, with John Nun-nick and Peter Wertz as executors. On the 29th day of March, 1883, Lucy Nan Harke, the widow, appeared iu the probate court, and the will aforementioned having been produced, was then opened and read in the presence of J. T. Eowland, one of the witnesses to the will, and Peter Wertz, one of the persons appointed as executors, when the widow, after being informed of her rights in the premises, elected to take her portion of the estate under the provisions of the will. Afterward, and on the 12th day of April, 1883, the will was offered for probate in the probate court of Johnsou county, Kansas, and the witnesses to the will were examined in open court, and on consideration of all the proofs offered, the court found that the will was duly attested and executed; that the testator at the time of executing the same was of sound mind and memory, and not under any restraint, and made an order admitting the will to probate. It does not appear that there was any objection made to this order, or any appeal taken therefrom. Thereafter, and on the 6th day of July, 1883, two-of the children of the decedent, the plaintiffs herein, brought this action in the district court of Johnson county, alleging the execution and probating of the will as above stated, but charging that the same was invalid, in that it had been expressly revoked by a subsequent will made by the decedent in the fall of 1877, and which they allege was secreted or destroyed by Lucy Nan Harke, their mother. The widow and the remaining children in their separate answers admit the due execution and probate of the will dated January 30th, 1874, and allege it to be the last will and testament of the deceased, and specially deny its revocation, or that there was any will of a later date made by the testator.
The case was tried by the court without a jury, and upon the trial the defendants objected to the introduction or consideration of any testimony, for the reason that the court was without jurisdiction to try the action, claiming that it should have been brought in the probate court; and it is insisted that the testimony of the plaintiffs ought not to be considered by this court, for the same reason. This objection is not tenable. The purpose of the proceeding is not to probate the subsequent will, if there be one; but, from the plaintiffs’ petition, they obviously seek to contest the validity of the will which has been admitted to probate, and to have it canceled and set aside on the ground that it has been revoked. Authority to maintain this action is expressly given in the act relating to wills, where it is provided that—
“ The mode of contesting a will shall be by civil action in the district court of the county in which the will was admitted to probate, which action may be brought at any time within two years after the probate of the will, and not afterward, by any person interested in the will or estate of the deceased.” (Comp. Laws of 1879, ch. 117, § 20.)
After the plaintiffs had introduced their testimony, the defendants interposed and filed a demurrer thereto, which the court after due consideration sustained. Of this ruling the plaintiffs complain.
It is conceded by all, that the will which has been probated was deliberately framed, and regularly subscribed and attested, in conformity with the requirements of the statute relating to wills; and in the absence of proof of a subsequent revocation, the legal presumption is, that when a will has been thus executed it continues to exist until the death of the testator. (2 Greenl. on Evidence, § 680.) The will in this case is attacked upon the ground of revocation only. The manner of revoking a will is prescribed by statute, and is as follows :
“A will shall be revoked by the testator tearing, canceling, obliterating or destroying the same, with the intention of revoking it, by the testator himself, or by some person in his presence, or by his direction, or by some other will or codicil in writing, executed as prescribed by this act, or by some other writing signed, attested and subscribed in the manner provided by this act for the making of a will.” (Comp. Laws of 187.9, ch. 117, §37.)
The plaintiffs claiming that the will in contest has been revoked and superseded by a later one, it is incumbent upon them, under the provisions of the statute last quoted, to prove by competent testimony that the instrument of a later date, purporting to be a will and, to have the effect of revoking an earlier one admitted to be valid, was executed with all the formality and solemnity prescribed by the statute in the making of a will. They must first show the existence of such an instrument; that it was made in writing by the testator when he was of sound mind and memory; that it was signed by him at the end thereof, or by some person in his presence, and by his express direction, and attested and subscribed in his presence by at least two competent witnesses who saw the testator subscribe or heard him acknowledge the same; and it must also appear that such instrument either in express terms revoked the former will, or that its provisions, in devising the property, were so far inconsistent with the earlier will that it would operate as a revocation. Have the plaintiffs offered such proof? It was determined by the court below that they had not, and a careful examination of the testimony in the record convinces us that the court rightly decided that there was not sufficient testimony to impeach the validity of the earlier will. There is no testimony offered showing when the alleged later will was made, by whom it was drawn, whether it was regularly signed by the testator, nor that it was subscribed in the presence of attesting witnesses. No witness is offered who ■claims to have seen such a will, nor does anyone assume to have personal knowledge of what its provisions were. The testimony that was offered was very vague and unsatisfactory.
Mary Caeman, one of the plaintiffs, testifies that in 1877, and just before her father and mother started upon a trip to Europe, she was handed a large sealed envelope by her father, which he said contained a will. He directed her that it must not be tom open, but if they failed to return from Europe, it must be sent to Olathe, the county seat, but she never saw it ■opened, nor had she any personal knowledge of its contents. She also stated that she had seen the same envelope on two subsequent occasions, in a drawer of a bureau in her father’s house, where deeds and other like papers were kept, the last time being in 1880. The paper, or whatever it may have been, was therefore under the control and immediate possession of the deceased. This envelope, for aught that appears in the testimony, may have contained the will made in 1874. The •other plaintiff, Lucy Jackson, was present at this time and saw the envelope handed by her father to Mary, and gave like testimony. Mary also testified that after the death of her father, her mother admitted in the presence of father Weikman, the parish priest, that there were other wills made by the deceased. The priest was called as a witness, and testified that he heard this conversation, and heard Mrs. Van Harke state that there were more wills than one, and when he advised them that the last will was the true one she replied, “ I have put in the last one and no other.” There was testimony given by other witnesses to the effect that Mrs. Man Harke had admitted that there were other wills than the one probated. One witness testified that the widow admitted having burned one of the wills made by the decedent, but none of the admissions go to the extent that there was, at the time of the testator’s death, a duly-executed will of a later date than the one probated.
Plaintiffs undertook to supplement this testimony with statements made by the testator during his lifetime and after the date when the subsequent will is alleged to have been made. This testimony, with some we have already adverted to, was clearly incompetent, and is not entitled to any weight in the' determination of the issue in this case.
A wide range of inquiry is given in a case where the validity of the will is challenged on the ground that the testator is not of sound mind, and also where it is claimed that the will was procured by any undue influence involving the mental condition of the testator at the time the will was executed. In such cases the declarations of the testator, made at or before the execution of the will, are competent evidence; but upon the question of the revocation of a will once properly executed and admitted to have been valid, a different rule obtains. The declarations of the testator in such a case are not competent testimony, unless they accompany the act by which the will is revoked, and they must be at or so near the time as to become a part of the res gestee. All other declarations are mere hearsay,, and are not admissible to impeach the will. (Mooney v. Olsen, 22 Kas. 69; Waterman v. Whitney, 11 N. Y. 157; Jackson v. Miffin, 2 Johns. 31; Stevens v. Van Cleve, 4 Wash. C. C. 365; Hayes v. West, 37 Ind. 121.)
In Mooney v. Olsen, supra, the court says that—
“ It is sometimes broadly stated that the declarations of a testator, whether prior or subsequent to the execution of the-will, are inadmissible for the purpose of impeaching it. In a certain sense this is doubtless true. As a mere matter of impeaching the will, they are hearsay, and inadmissible. They are not like statements of an ancestor in derogation of title or limitation of estate, which, being declarations against interest, are admissible against the heir, for there is no adverse interest in a devisor against the will, or the devisee. They are more like' declarations of a grantor, after grant in limitation of his grant,, and are strictly hearsay. Thus, if a testator, after executing a will, should say that the will was forced from him, or that it was executed against his will and through undue influence, such statement of itself would be hearsay, and inadmissible.”
The declarations of the testator in the record, and which form no part of the res gestee, are not very important, and must therefore be excluded from consideration, Neither can we consider any of the testimony offered by plaintiffs in their own behalf, to which objection was made, of communications had personally between the decedent and themselves concerning the will. (Comp. Laws of 1879, ch. 80, §322; Rich v. Bowker, 25 Kas. 7.)
It is contended by counsel for plaintiffs, in explanation of their failure to show the contents of a later will which they claim revoked the one probated, that in cases where a later will has been destroyed or suppressed by some one interested against it, the presumption is that the second one contained provisions inconsistent with the first, and effectually revoked it. Before any such presumption can be indulged in, it must satisfactorily appear that a later will actually existed at the testator’s death, and there must be evidence of spoliation by some of the parties claiming under the former will.
Looking at the testimony in this case in the light most favorable to the plaintiffs, rejecting that which is unfavorable to them, we think there was not sufficient testimony to show the existence of a later will, or any revoking instrument, at the time of the testator’s death; and before plaintiffs were entitled to show by parol the contents of any revoking instrument, they must not only show its existence, but also a spoliation thereof, or that a diligent, exhaustive and fruitless search has been made for such instrument.
We think the evidence offered by plaintiffs clearly failed to prove the material issues in the case, and that the court properly sustained the demurrer thereto. Its j udgment must therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Thiele, J.:
Primarily this is an appeal from a judgment of a district court denying the petitioner a writ of habeas corpus. In this court the petitioner has filed another petition for the writ, based on the same grounds relied upon in the district court.
It appears from the petition for the writ that the petitioner was tried for the crime of forgery in the district court of Sedgwick county, was convicted and on October 21, 1935, was sentenced to the penitentiary for a term of one to ten years and was paroled; that in the same court he was again tried for a like offense and on July 28, 1936, was sentenced to the penitentiary for a term of two to twenty years, the penalty being doubled by reason of a second conviction (G. S. 1935, 21-107a); that in the same court he was again tried for a like offense and on November 10,1947, was sentenced to the penitentiaiy for a term of fifteen years, that sentence being imposed under the provisions of G. S. 1947 Supp. 21-107a.
The petitioner first contends that the convictions in 1935 and 1936 are void because he was denied counsel at his preliminaries and trials. It may first be stated there is no evidence except petitioner’s statement to that effect that he was denied counsel. Such unsupported statements are insufficient to controvert the judgment. (Long v. Hudspeth, 164 Kan. 720, 192 P. 2d 169, and Kanive v. Hudspeth, 165 Kan. 658, 198 P. 2d 162.) The judgment of the district court carries with it a presumption of regularity (Brewer v. Amrine, 155 Kan. 525, 127 P. 2d 447, and Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147). The burden of proof in this case is upon the petitioner to prove the contrary (Hill v. Hudspeth, 161 Kan. 376, 168 P. 2d 922). Petitioner’s argument seems to be that because the journal entries of judgment do not disclose he had counsel, he was denied counsel. At the time the two convictions were had our criminal code provided only for assignment of counsel at the request of the defendant (G. S. 1935, 62-1304), and there is not even a claim that petitioner requested counsel and the request was denied. Petitioner also directs attention to Dunfee v. Hudspeth, 162 Kan. 524, 527, 178 P. 2d 1009, and McCarty v. Hudspeth, 166 Kan. 476, 201 P. 2d 658, and contends that under the rule of those cases the district court erred in not assigning counsel. Those cases involved the rights of minors. Dunfee was twenty years old and McCarty was sixteen years old at the time of trials. While we adhere to the rule of those cases, there is nothing in the present record to show it has any application here. The petitioner’s contention that the convictions in 1935 and 1936 were void is denied.
Petitioner’s contention that his conviction in 1947 was erroneous and that, in considering the two previous convictions in 1935 and 1936, the trial court erred because they were void, in support of which he relies upon McCarty v. Hudspeth, supra, even if available in a proceeding for a writ of habeas corpus (In re Nolan, 68 Kan. 796, 75 Pac. 1025, and In re Hornung, 81 Kan. 180, 105 Pac. 23), cannot avail here in view of our holding the previous convictions were not void.
And finally the petitioner contends that his conviction in 1947 was void because he was not informed against as a persistent violator of the criminal laws. The criminal code makes no requirement the defendant be so charged. A contention like that now made was considered and denied in Levell v. Simpson, 142 Kan. 892, 52 P. 2d 372. See also Luppy v. Hudspeth, 159 Kan. 434, 155 P. 2d 428. Under the applicable statute (G. S. 1935, 21-107a as amended by G. S. 1947 Supp. 21-107a) and our decisions interpreting it, and there are others than those cited above, it is held that petitioner’s conviction was not void because the information did not charge him with two or more previous convictions.
In view of what has been said it follows that the judgment of the district court denying the writ prayed for is affirmed and the writ of habeas corpus prayed for in this court must be and it is denied. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover damages for death by wrongful act. The defendant’s demurrer to plaintiffs’ second amended petition was sustained, and they have perfected an appeal to this court.
The allegations of the second amended petition are extended and show plaintiffs’ capacity and right to maintain the action. In our summary of the remaining allegations we shall direct attention only to those necessary for consideration of the contentions presented. Earl Lynn Sipult was an employee of James Lear who was a house mover and engaged in moving a house from the army air base north of Pratt, south to the city of Medicine Lodge, and preliminary to performance of that undertaking had procured the necessary permit from the county clerk as provided by G. 'S. 1935,17-1914, et seq., and other necessary permits which need not be detailed. The defendant city owned and maintained a high voltage electric line along an east and west highway about three miles south of the city of Pratt and at a point where the incident later mentioned occurred had an uninsulated line across the highway to serve a farm patron. On the morning of October 7, 1947, Lear notified the city that he would move the house through the city of Pratt and along the highway above mentioned and the city sent three employees skilled in the work to be done to assist Lear and Sipult in moving the house by lifting all electric wires with which it came in contact. The house being moved was on rollers and the top thereof was over nineteen feet above the ground. On the ridgepole of the house were one or more cupolas, which the city’s agents knew would come in contact with the electric wire across the highway and in dangerous proximity to Sipult who was assigned the task of riding on the roof as -'a lookout'; that Lear and Sipult had no tools or equipment to hoist dangerous wires and Sipult “was then and there ignorant and unlearned in the handling of electric wires, and of the danger attending the handling and coming in contact with the same.” The agents of the city knew of the danger to Sipult but notwithstanding, they negligently failed to proceed with the moving house until it had passed beyond the point where the uninsulated wire crossed the highway; that they had helped Sipult move the house through the corporate territorial limits of the city of Pratt and then negligently failed to continue on with him in moving the house and, “That the deceased, (Sipult) after the defendant had carelessly and negligently failed and neglected to continue with him and assist him in moving the said house in the manner aforesaid, continued to move the said house himself and moved the same under the uninsulated wire of the defendant at the point aforesaid.” As the house moved forward, Sipult was on the roof and as the house moved under the wire, the body of Sipult came in contact with the wire and a high voltage of electricity passed through his body instantly killing him. The plaintiffs alleged that they did not know whether the wire cleared the cupola and roof, or caught on the edge and became unfastened and struck Sipult, or whether he fell into the wire as the structure moved, but that he did not with his hands or feet or other portion of his body attempt to lift the wire to clear the roof of the house or to disengage the wire if it caught on the house, and that he was first observed by his fellow workmen lying dead on the roof some distance below the wire, having been killed by an electric charge from the wire. Other allegations setting forth specific charges of negligence on the part of the defendant, as well as plaintiffs’ damages, need not be mentioned.
As has been stated the trial court sustained the defendant’s demurrer to the petition. In the journal entry filed there is included the statement of the court in ruling on the demurrer that it was of the opinion that the decision in Hawn v. Kansas Gas & Electric Co., 122 Kan. 395, 252 Pac. 245, was directly in point and decisive of all of the issues tendered by the plaintiffs’ second amended petition, and that the Kansas statutes, as interpreted in that case, clearly prevented plaintiffs’ recovery.
In the Hawn case, supra, this court had before it for consideration the force and effect of Laws 1917, ch. 251, which now appears as G. S. 1935, 17-1914, et seq. In a summary way it may be said the statute provides that no person shall move any house of the height of sixteen or more feet when in position for moving, upon any highway outside the limits of any incorporated city, upon which electric power wires are strung, without first obtaining a permit therefor from the county clerk, and if it shall be necessary to cut, move, raise or interfere with any such wires, the application for the permit shall state the name of the owner of the wires and the time and place when and where the cutting, raising or otherwise interfering with the wires will be necessary; that the county clerk shall give twenty-four hours’ notice to the owner of the wires and it shall be the owner’s duty to furnish competent workmen to cut and raise such wire as will be necessary to facilitate removing of the house, provision for payment of expense being made in the statute. The statute then provides:
“No person engaged in moving any house . . . shall raise, cut, or in any way interfere with any such . . . wires unless the persons . . . owning . . . the same shall refuse so to do after having been notified . . .; then, only competent and experienced workmen or linemen shall be employed in such work . . .”
The statute further makes it an offense for any person engaged in moving a house along the highways outside the limits of an incorporated city “to move, touch, cut, molest or in any way interfere” with any electric power wires except under and in compliance with the provisions of the act, and provides penalties.
In the Hawn case, swpra, the action was by a workman engaged in moving a house down the highway and who was injured by coming in contact with or near to high voltage electric lines alleged to have been negligently maintained, and the appeal arose from a ruling sustaining a demurrer to an answer where it was alleged that the house being moved was within the purview of the above statute, and that no permit had been procured. It is unnecessary that we here review the analysis made of the above statute, the purposes o'f its enactment and results following failure to observe its requirements, reference to that opinion being made therefor. All is reflected in the syllabus of the opinion, which states:
“The statute regulating the moving of houses, buildings, derricks, and other structures, upon or across public highways over which telegraph, telephone, electric light or electric power wires are suspended, was enacted in the interest of the public welfare generally, and was designed in part to prevent loss of life and bodily injury in the adjustment of wires to permit moving structures to pass.
“A house mover, whether employer, or employee, who, without observance of the regulations, undertakes to lift a wire suspended over a highway intersection, to permit a moving building of statutory height to pass, engages in unlawful conduct, and takes the risk of consequential bodily injury.” (Syl. Mil, 2.)
Appellants seek to distinguish the Hawn case, supra, from the case at bar and direct attention to the fact that no permit was procured in the Hawn case, but that one was in this case, and that in the Hawn case the plaintiff attempted to lift the wire while in this case the allegation was that the deceased did not attempt to lift the wire. In our opinion the differences noted do not make the reasoning of the Hawn case inapplicable. While it is true Lear, the employer of Sipult, had procured a permit and in accordance with the statute the city had furnished competent workmen, it is equally true from the allegations of the petition that at the time of the injury to Sipult, the city’s workmen were not present. If it be assumed from their absence that the city refused to furnish competent workmen, then the duty of Sipult allegedly “ignorant and unlearned in the handling of electric wires” was to procure competent and experienced workmen as provided by the above statute. Notwithstanding, Sipult “continued to move the said house himself and moved the same under the uninsulated wire,” a thing the statute prohibits. Neither can a distinction be made because of the allegation that Sipult did not attempt to raise the wire. The statute states that no person “shall raise, cut, or in any way interfere” with any such wire. Under the Hawn case, Sipult’s conduct was the same whether he was hurt either by raising the wire or by proceeding to move the house under it in such manner that it interfered with the wire.
Appellants direct our attention to language in Cracraft v. Kansas Power & Light Co., 163 Kan. 285, 181 P. 2d 318, where the issue was the authority of the owner of the wire to demand a cash deposit before the work was done and arose under the same statute now under consideration. In answering a contention that under the statute,' no duty was imposed upon the owner to move its wires, this court said that:
“Indeed, prior to the enactment of the statute the authorities indicate defendant would have had such a duty upon proper notice. (Winegarner v. Edison, 83 Kan. 67, 109 Pac. 778; Logan v. Electric Co., 99 Kan. 381, 161 Pac. 659.)” (l. c. 287.)
Appellants interpret this to mean that regardless of the notice required, the city had a duty to him, and that the statute was “nothing more than cumulative of the law which already existed,” and our attention is directed to decisions in cases decided prior to the enactment of the statute under consideration. We shall not review those decisions for we are of opinion that, as was held in the Hawn case, the statute was enacted in the interest of the public welfare generally and was designed in part to prevent loss of life, and by its express terms not only provided a means whereby the person moving a house down a public highway was relieved from undertaking the risk of cutting, moving or raising an electric power wire, but was specifically prohibited from doing so except as provided in the statute. Appellants’ interpretation of the decision in the Hawn case cannot be sustained. In our opinion, the statute did not create another cause of action, additional to what may here be called actions for common law negligence, but regulated all activities coming within the field of its operation. The allegations of the second amended petition disclose S'ipult, contrary to the statute, moved the house along the highway and into the wire which the appellants say was negligently maintained. Under that statute, as it was construed in the Hawn case, and as we again construe it, Sipult took the risk of consequential bodily injury. Had he survived he could not have maintained a cause of action against the city, and having died, his widow and child may not.
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The opinion of the court was delivered by
Schroeder, J.:
This appeal is from an order dismissing a cross-claim filed by the defendant, Cassell Truck Lines, Inc. (appellant), against its co-defendants, Rock Island & Pacific Railroad Company and Howard D. Hill (appellees), in a subrogation action instituted by five insurance companies (plaintiffs), seeking reimbursement for sums paid to the insured, Screw Machine Products, Inc., for damage to its building and personal property. The damage occurred when a truck owned by Cassell was struck by a train of Rock Island causing the truck to collide with the insured’s building.
The sole question presented on appeal is whether the statute of limitations prevents appellant Cassell from filing a cross-claim seeking affirmative relief against the appellees in an action arising out of the same incident pleaded by plaintiffs in their petitions, where the original petitions were filed within the two-year limitation period, but the cross-claim was not filed until more than two years after the accident.
The facts presented by the record are not in dispute.
On January 22, 1962, Fred Jurczewsky, a defendant below, was driving a semi-tractor and trailer owned by Cassell in a northerly direction north of the point where Rock Island’s railroad tracks intersect Thirteenth Street in Wichita, Kansas. Jurczewsky abandoned the vehicle after it stalled in an area between the railroad tracks and a building owned by Screw Machine Products, Inc. Immediately thereafter, Howard D. Hill, while operating a train for Rock Island, struck the vehicle causing it to collide with the building, resulting in damage to the building and its contents.
On August 7, 1963, the five plaintiffs instituted five separate actions as co-insurers of the building and contents against the appellant Cassell, its driver, Jurczewsky, and the appellees to recover their respective payments to Screw Machine Products, Inc. On September 6, 1963, appellees filed separate demurrers to each of the petitions on the ground that counts II and III contained therein failed to state a cause of action. The appellant and Jurczewsky requested additional time to plead on September 9, 1963, and the court entered an order granting an additional ten days.
It was generally agreed between counsel that all five cases should be continued past January 1, 1964, to enable consolidation of the cases under the new code of civil procedure. (This did not extend appellant’s time to file pleadings). Accordingly, the hearings on the demurrers were continued to January 13, 1964, and on that date the hearings were further continued to January 20, 1964. On the 20th day of January the demurrers, treated as motions to dismiss counts II and III of plaintiffs’ petitions, were ruled on by the court, and were sustained as to count II of the petitions but were overruled as to count III.
On January 27,1964, the district court entered its order consolidating the five cases. The journal entry reflecting the above rulings on the demurrers (motions to dismiss) was filed on January 27, and granted the plaintiffs ten days to file an amended petition. It also allowed the defendants ten days thereafter in which to further plead. On the same day plaintiffs filed their amended petition.
On February 7, 1964, appellees filed their answer to the amended petition. The appellant and Jurczewsky filed a motion requesting an enlargement of time within which to plead, and were granted an additional five days. On February 14, 1964, appellant and Jurczewsky filed their answer; and on the same day, appellant filed a cross-claim against appellees seeking relief for damages to its semi-tractor and trailer allegedly caused by appellees’ negligence.
The appellees filed a motion to dismiss appellant’s cross-claim on March 5, 1964, on the ground that the cross-claim showed on its face the cause of action set up therein was barred by the two-year statute of limitations (K. S. A. 60-513) at the time it was filed.
Thereafter a journal entry dated March 23, 1964, was filed which reflected the ruling of the district court sustaining appellees’ motion to dismiss the cross-claim of the appellant, and the order dismissing the claim, from which appeal has been duly perfected.
The cause of action, if any, accrued on January 22, 1962, the date of the accident, and was barred within two years thereafter by the applicable statute of limitations. Plaintiffs filed their original petitions within the two-year limitation period. However, the appellant’s cross-claim was not filed until more than three weeks after the end of such period.
The appellant contends its cross-claim is not barred by the statute of limitations for the reason that under K. S. A. 60-213(d), a cross-claim may be filed after the running of the statute of limitations as long as the cross-claim arises out of the transaction set forth in the petition as the foundation of the plaintiffs’ claim or is connected with the subject of the action.
Section 60-213 of the new code of civil procedure generally follows Rule 13 of the federal rules of civil procedure. Paragraph (d), however, is an exception. It reads:
“When cross demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim or cross-claim could have been set up, neither can be deprived of the benefit thereof by the assignment or death of the other or by reason of the statute of limitations if arising out of the contract or transaction set forth in the petition as the foundation of plaintiff’s claim or connected with the subject of the action; but the two.demands must be deemed compensated so far as they equal each other.”
The foregoing provision in the new code was designed to express the statutory rule formerly set forth in G. S. 1949, 60-715, which reads:
“When cross demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim or setoff could have been set up, neither can be deprived of the benefit thereof by the assignment or death of the other or by reason of the statute of limitations; but the two demands must be deemed compensated so far as they equal each other.”
Under the old statute a defendant could assert a counterclaim or setoff, even though barred by the statute of limitations, to the extent of the plaintiffs’ claim, providing both claims co-existed at some time. (See, Christenson v. Akin, 183 Kan. 207, 326 P. 2d 313; Stockmens Bank v. Madison, 129 Kan. 253, 282 Pac. 570; First Nat’l Bank v. Willis, 128 Kan. 681, 280 Pac. 782; Ramsel v. Brandt, 119 Kan. 756, 241 Pac. 117; and Bank v. Elliott, 97 Kan. 64, 154 Pac. 255.)
The appellant calls our attention to the fact that the term “setoff” as it appeared in the old statute (60-715, supra) has been deleted, and the word “cross-claim” substituted in its stead in the new section (60-213, supra). A cross-claim under the new code is defined as “any claim by one party against a co-party.” (K. S. A. 60-213[g].) Ry reason of this change, the appellant argues 60-213(d), supra, now applies to cross-claims (between parties on the same side of the case) and to counterclaims (between opposite parties).
In substance, the appellant’s argument is that the new code of civil procedure which became effective January 1, 1964, denies to the appellees the defense of the provisions of the statutes in effect at the time of the occurrence in question—that the new code has extended the provisions of the old code (60-715, supra) to cross-claims.
Statutes of limitation are statutes of repose, and, as such, are designed to secure the peace of society and to protect the individual from being prosecuted upon stale claims. (Bauserman v. Charlott, 46 Kan. 480, 26 Pac. 1051; Freeman v. Hill, 45 Kan. 435, 25 Pac. 870; and Schulte v. Westborough, Inc., 163 Kan. 111, 180 P. 2d 278.) In the Schulte case it is stated:
“. . . There was a time when the defense of the statute of limitations was by some courts regarded as technical and with disfavor. The modem tendency is to' the contrary. Following a discussion of the historical development of the subject in 24 Am. Jur., Limitation of Actions, § 14, it is stated:
“ ‘The modem tendency is, although there are some cases which contain statements to the contrary, to look with favor upon the defense. Statutes of limitation are now considered as wise and beneficient in their purpose and tendency, they are looked upon as statutes of repose, and are held to be rules of property vital to the welfare of society. Such statutes are deemed to be in the interest of morals, serving to prevent perjuries, frauds, and mistakes, and to render people attentive to the early adjustment of demands, and prevent the disturbance of settlements which have been made but of which the proof may have been lost.’
“Most statements of text writers and judges are to the same effect. So likewise in this state statutes of limitations are statutes of repose and as such have long been considered with favor. (Freeman v. Hill, 45 Kan. 435, 437, 25 Pac. 870; see, also, Dougherty v. Norlin, 147 Kan. 565, 569, 78 P. 2d 65.)” (p. 115.)
Statutes of limitation are usually considered to be remedial rather than substantive, in that the remedy only and not the right or obligation is barred. (In re Estate of Reed, 157 Kan. 602, 142 P. 2d 824; Murray v. Modoc State Bank, 181 Kan. 642, 313 P. 2d 304; and 34 Am. Jur., Limitation of Actions, § 400, p. 314.) For example, the fact that a statute bars recovery against a debtor does not extinguish the debt, but simply leaves it unpaid without any legal remedy on the part of the creditor to enforce its payment by suit. (Bomud Co. v. Yockey Oil Co., 180 Kan. 109, 299 P. 2d 72, 58 A. L. R. 2d 1265; and Murray v. Modoc State Bank, supra.) That statutes of limitation are considered remedial rather than substantive is of particular signficance in the area of cross demands, in that if the right itself was barred, it could never be asserted as a defense in the form of a counterclaim or cross-claim.
The effect of the new code on pending actions is covered by K. S. A. 60-2608, which provides:
“As to any actions or proceedings commenced prior thereto, the procedures prescribed by this chapter shall apply except that the court in which the same are pending may by order prescribe that an action or proceeding may continue in whole or in part in the manner prescribed by prior law if such prior law would expedite the just and efficient disposition of the particular action or proceeding.”
Judge Gard in his commentary on this section says:
“Explanation: This section provides that in actions which are pending when the 1963 revised code becomes effective on and after January 1, 1964 and its publication in the statute book, the new procedure will apply unless the trial court orders that the former procedure shall continue to be applicable. Of course only procedural provisions are involved. In such matters as venue and jurisdiction, and the provisions relating to substantive and remedial matters, they take effect when the law becomes effective and cannot relate back to change the character of pending actions.” (Gard, Kansas Code of Civil Procedure Annotated, p. 844.)
Under the foregoing explanation remedial matters were not affected by the new code in actions which arose and were pending prior to the adoption of the new code.
Whether the foregoing explanation is altered by the rule stated in the case of In re Estate of Reed, supra, at page 608, to the effect that there are no vested rights to any particular remedy or procedure, is immaterial to determine on the facts in the instant case.
For the reasons hereafter assigned, we think the claim asserted by the appellant against the appellees as a cross-claim was barred under the applicable two-year statute of limitations at the time it was first asserted, whether the provisions of the statutes in effect prior to January 1, 1964, or the provisions of the new code, which became effective on such date, are applied.
When considering the effect of the running of the statute of limitations this court is committed to the general doctrine, almost universally recognized by the courts and textwriters, that there is a substantial distinction between a claim asserted as a pure defense and one where affirmative relief is sought. Statutes of limitation are not intended to affect matters asserted strictly in the defense of an action. (Muckenthaler v. Noller, 104 Kan. 551, 180 Pac. 453; McCarthy v. Sink, 152 Kan. 659, 107 P. 2d 790; Collins v. Richardson, 168 Kan. 203, 212 P. 2d 302; and Crumrine v. Cummings, 172 Kan. 290, 240 P. 2d 463.)
One of the leading cases in this jurisdiction on the point is Muckenthaler v. Noller, supra, where an action was brought to enforce contribution on a note which the plaintiffs were compelled to pay. The defense asserted in the trial court was that the defendants* signatures were procured by fraud. The plaintiff contended that such defense was barred by the statute of limitations. On appeal this court held the statute of limitations is not applicable to mere defenses, and that while a barred cause of action cannot be used for the purpose of obtaining affirmative relief, it may be used as a pure defense to defeat the plaintiff's right of recovery.
As a general rule a setoff, counterclaim or cross-claim has the nature, characteristics and effect of an independent action or suit by one party against another. Accordingly, in the absence of a statute to the contrary, a demand pleaded by way of a setoff, counterclaim or cross-claim is regarded as an affirmative action in most-jurisdictions, and therefore, unlike a matter of pure defense, is subject to the operation of the statute of limitations. (1 A. L. R. 2d 630; 34 Am. Jur., Limitation of Actions, § 63, p. 57; 53 C. J. S., Limi tations of Actions, § 106, p. 1090; and see, also, Muckenthaler v. Noller, supra.)
In 1909 our legislature enacted a “saving” statute (L. 1909, ch. 182, § 102) which excluded cross demands from the operation of the statute of limitations under certain specified conditions. The language of this statute was retained in 60-715, supra, of the old code of civil procedure.
In Christenson v. Akin, supra, the court in considering 60-715, supra, said:
“. . . The counterclaim here being considered grew out of the same contract and transaction which is the basis of plaintiffs’ cause of action in their petition. Although defendants may be barred from affirmative relief because of limitations, they would seem to have a right to use their counterclaim as a matter of pure defense to reduce any judgment received by plaintiffs herein.” (p. 213.) (Emphasis added.)
In Ramsel v. Brandt, supra, the defendant claimed a setoff against plaintiff’s cause of action, and the court held: “. . . The set-off constituted a cross-demand which compensated plaintiff’s demand pro tanto, notwithstanding the general statute of limitations. . . .” (p. 756.)
In Bank v. Elliott, supra, in construing the statute under consideration the court said:
“. . . Granting that as a separate action for relief on the ground of fraud the defendant’s cross-demand would be too late, we must hold that not only the bar of the statute of limitations to such relief is removed, but the broad language of section 102 of the code takes down every bar; and if this counterclaim is established by the evidence it must be used as compensation against plaintiff’s claim ‘so far as they equal each other.’” (p. 67.) (Emphasis added.)
For other decisions construing 60-715, supra, see, Cooper v. Seaverns, 97 Kan. 159, 155 Pac. 11; McKenna v. Morgan, 102 Kan. 478, 170 Pac. 998; and Powers v. Sturgeon, 190 Kan. 604, 376 P. 2d 904.
Attention is invited to Insurance Co. v. Bullene, 51 Kan. 764, 33 Pac. 467, where the court held:
“Where certain defendants seek to enforce their demands against a codefendant, as to such demands the action will be deemed commenced as of the time when their answers setting up such demands are filed.” (Syl. ¶ 1.) (Emphasis added.)
From the cases construing 60-715, supra, it is clear that a defendant’s cross demand, otherwise barred by the statute of limitations, must be used by such defendant, if it is established by the evidence, as compensation against the plaintiff’s claims only so far as they equal each other.
A careful study of 60-213(d), supra, in the new code discloses an intention to carry over the Kansas law as it developed under 60-715, supra, of the old code. While it is true the word “cross-claim” was substituted for the word “setoff,” the cross-claim must qualify under the statute as a cross demand. The statute says “when cross demands have existed between persons under such circumstances that, if one had brought an action against the other, . . . ” (Emphasis added.)
A cross demand was defined in Bank v. Elliott, supra, as “a demand which is preferred by one party to an action in opposition to a demand already preferred against him by his adversary.” (p. 66.) (Emphasis added.)
“A cross-demand is nothing more than a cause of action which one party might have used as a set-off or counterclaim if sued by the other.” (Cooper v. Seaverns, supra, p. 160.)
Section 60-213(d), supra, of the new code has the same provision as the old requiring that “the two demands must be deemed compensated so far as they equal each other.”
Another change in 60-213(d), supra, was the insertion of the expression “if arising out of the contract or transaction set forth in the petition as the foundation of plaintiff’s claim or connected with the subject of the action.” This phrase was contained in G. S. 1949, 60-711, relating to counterclaims.
Judge Gard in his commentary on 60-213(d), supra, says:
“Prior Law. This subsection is the same as G. S. 1949, 60-715, with language added to meet the necessity arising from the liberalization of the right to assert counterclaims of any description, and to prevent the suspension of the statute of limitations as to counterclaims other than those arising out of or connected with the plaintiff’s claim.
“Explanation of Changes in Kansas Law: Under the former statute its application was limited to counterclaims and setoffs which could then have been asserted under the procedure in force before the new code was adopted. Under the new rules if the former statute had not been amended it would operate as to all counterclaims (or setoffs) which can now be asserted, whether mandatory or permissible, under the much broader practice of permitting counterclaims of any description. By providing in this subsection that the counterclaim must ‘arise out of the contract or transaction set forth in the petition as the foundation of plaintiff’s claim or be connected with the subject of the action,’ in order to be relieved from the operation of the statute of limitations, the practical effect is substantially the same as under the former statute.” (Gard, Kansas Code of Civil Procedure Annotated, pp. 68, 69.)
Substitution of the word “cross-claim” for the word “setoff” in carrying the provisions of 60-715, supra, to the new code was no doubt necessitated by liberalization in the new code which authorized a cross-claim against a co-party. (K. S. A. 60-213[g].)
It may therefore be said 60-213(d), supra, was designed to retain the substance of 60-715, supra, of the old code. It was modified only to the extent that adoption of Rule 13 of the federal rules of civil procedure in the new code required. Thus, the decisions of this court construing 60-715, supra, of the old code are authoritative insofar as applicable in construing the provisions of 60-213(d), supra.
The provisions of K. S. A. 60-213, to the extent they were modeled after federal rule 13, govern only the procedural matter of pleading and litigating those claims defined as counterclaims and cross-claims; they do not purport to govern the validity of a claim. In Keckley v. Payton, 157 F. Supp. 820, the court said:
“. . . Rule 13 of the Federal Rules of Civil Procedure, which permits counterclaims, has no application to a counterclaim that is barred by the statute of limitations. . . .” (p.823.)
(See, 3 Moore’s Federal Practice [2nd ed.], §13.11.) While the general purpose of the provisions in 60-213, supra, enacted pursuant to federal rule 13 is to obtain in one action full relief for all parties and a complete determination of all controversies which arise out of the matters charged in the original bill, they were not intended by the legislature to supersede the statute of limitations.
Upon the foregoing construction of 60-213(d), supra, as applied to the facts in the instant case, the appellant Cassell would have the right to assert its cross-claim against the appellees (Cassell’s co-defendants below) to the extent of the appellees’ claim against it. Here, however, the appellees have asserted no claim against the appellant. The only plaintiffs in the action are the insurers. The statute definitely contemplates that a demand must be asserted by one defendant against the cross-claiming defendant.
The appellant did not interpose its cross-claim on the theory that if it should be called upon to pay damages to the plaintiffs, the appellees would be liable to it for such damages. Obviously, the appellant’s cross-claim cannot be considered defensive in that it was not filed to defeat or diminish recovery by the plaintiffs or the appellees. The whole defense to the plaintiffs’ claim of negligence was set forth in the appellant’s answer by a general denial and by the averment that any damage to the building was caused by the appellees’ negligence.
Under present posture of this case the cross-claim of the appellant against the appellees amounts to nothing more than a cross-petition instituting an action by the appellant against the appellees seeking affirmative relief (recovery from the appellees for damages to its truck) after the bar of the statute of limitations has fallen. There exists no claim by the appellees against the appellant against which the appellant might set off or recoup any claim it might have against the appellees.
The contention of the appellant that the statute of limitations was extended by the trial court in its order of January 20, 1964, granting the insurers ten days within which to file an amended petition, and further granting the defendants ten days within which to answer the amended petition, has been considered and found to be without merit. Obviously, reference to the “defendants” in the journal entry of January 20, 1964, had reference to the defendants, Rock Island and its engineer, Howard D. Hill, appellees herein, and not to the defendant Cassell or defendant Jurczewsky, who did not appear before the court on January 20, nor at any other time during the entire pendency of this action, at which counsel for Rock Island appeared. The appellant did not appear at any hearing until the motion to dismiss the appellant’s cross-claim was signed on March 23, 1964. Furthermore, the court was not vested with any power to waive or extend the statute of limitations.
For the reasons heretofore stated, we are compelled to hold the appellant’s cross-claim is barred by the two-year statute of limitations, there being no statutory exception or tolling provision applicable to the cross-claim which was filed for the purpose of obtaining affirmative relief.
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal from an order and judgment of the district court of Reno county denying appellant’s motion under K. S. A. 60-1507 to vacate and set aside a prior judgment and sentence of that court in a criminal action.
The facts pertinent to a consideration of this appeal are reflected in the record as follows:
The appellant first appeared before the city court of Hutchinson on May 18, 1955. A preliminary examination was set down for hearing on June 6, 1955. The appellant was without counsel at the hearing, offered no evidence and was bound over to the district court for trial.
Counsel was appointed by the district court, the appellant was tried by a jury and convicted of robbery in the first degree on October 5, 1955. On October 18, 1955, the appellant, with his court appointed counsel, appeared in court for sentencing and was committed to the Kansas State Penitentiary at Lansing. The appellant made no attempt to appeal from this judgment and sentence.
On January 5, 1965, the appellant filed a motion in the Reno county district court to vacate his judgment and sentence. Kenneth E. Peirce, a member of the bar of the county, was appointed to represent appellant. A hearing was had on April 13, 1965, in division one of the Reno County district court and the court filed a written memorandum opinion in which appellant’s motion was denied. An appeal from this order was duly taken and perfected.
The sole issue raised by the appellant in this appeal is that he was denied due process of law by not having counsel appointed to represent him at the preliminary hearing.
Counsel for appellant admits that a long and unbroken line of decisions by this court have clearly and fully stated that in view of the existing law in this state an accused has no constitutional right to be furnished court appointed counsel at his preliminary hearing. Counsel for appellant attempts to distinguish the factual situations involved here from those of previous cases involving counsel at preliminary hearings. He further argues that the existing rule concerning counsel at preliminary hearing in Kansas is in need of modification in order to guarantee due process of law as envisioned by the Constitution of the United States.
In asking this court to modify its past rulings on this question the appellant overlooks the fact that a reappraisal was undertaken by the court subsequent to Gideon v. Wainwright, 372 U. S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A. L. R. 2d 733.
In Bergin v. State, 194 Kan. 656, 658, 400 P. 2d 978, the court states, “. . . that, following Gideon v. Wainwright, supra, this court reviewed and reappraised its cases in the light of that decision and failed to find anything therein which woiild either warrant or require the overruling of its decision in State v. Daegele, supra, [193 Kan. 314, 393 P. 2d 978, certiorari denied, 379 U. S. 981, 13 L. Ed. 571, 85 S.Ct. 686], . . .”
In Portis v. State, 195 Kan. 313, 403 P. 2d 959, the court again refers to recent decisions in which it was held that the accused has no constitutional right to be furnished with court appointed counsel at his preliminary hearing. It is to be noted that certiorari has been denied in a number of these cases. Decisions cited on this point in Portis v. State, supra, are incorporated herein by reference and made a part of this opinion, State v. Crowe, 190 Kan. 658, 378 P. 2d 89; State v. Robertson, 190 Kan. 771, 378 P. 2d 37; In re Mortimer, 192 Kan. 164, 386 P. 2d 261; State v. Naillieux, 192 Kan. 809, 391 P. 2d 140, certiorari denied, 379 U. S. 864, 13 L. Ed. 2d 67, 85 S. Ct. 131; State v. Cox, 193 Kan. 571, 396 P. 2d 326, certiorari denied, 380 U. S. 982, 14 L. Ed. 2d 276, 85 S. Ct. 1350; State v. Jordan, 193 Kan. 664, 666, 396 P. 2d 342, certiorari denied, 380 U. S. 920, 13 L. Ed. 2d 805, 85 S. Ct. 917; White v. Crouse, 193 Kan. 674, 679, 396 P. 2d 333, certiorari denied, 381 U. S. 954, 14 L. Ed. 2d 727, 85 S. Ct. 1814; State v. Young, 194 Kan. 242, 398 P. 2d 584; State v. Richardson, 194 Kan. 471, 399 P. 2d 799; State v. Baier, 194 Kan. 517, 399 P. 2d 559; State v. Blacksmith, 194 Kan. 643, 400 P. 2d 743; State v. Wharton, 194 Kan. 694, 401 P. 2d 906; Tarr v. State, 194 Kan. 798, 402 P. 2d 309; Powers v. State, 194 Kan. 820, 402 P. 2d 328; State v. Talbert, 195 Kan. 149, 402 P. 2d 810, certiorari denied, 382 U. S. 868, 86 L. Ed. 2d 143, 86 S. Ct. 143.
Appellant attempts to distinguish this case from many Kansas cases in which the appellant complained about not having legal representation at his preliminary hearing on the ground that in many of those cases the appellant had either entered a plea of guilty or had waived his preliminary hearing. The appellant argues that if an accused pleads guilty and waives his preliminary hearing he would not have as strong a complaint as an accused who consistently maintained his innocence and yet was subjected to a preliminary hearing without the aid of counsel as in this case. In view of the clearly defined purpose of a preliminary hearing under the Kansas statute we are unable to give this contention of appellant favorable consideration.
Appellant makes no showing whatsoever as to any particular or specific way in which he was prejudiced by lack of counsel at his preliminary hearing; nor does he offer any proof or state any reason why the preliminary was a critical stage in the proceedings in his case.
In further considering appellant’s attempt to distinguish his case, it should be stated that the rule under which any irregularities pertaining to a preliminary examination are waived when a voluntary plea of guilty is entered in district court applies as well when defendant waives arraignment, pleads not guilty and goes to trial on an information. See Portis v. State, 317, supra, State v. Wallgren, 144 Kan. 10, 11, 58 P. 2d 74; State v. Osburn, 171 Kan. 380, 335, 232 P. 2d 451, and State v. Young, 245, supra.
A complete review of the record on appeal reflects no showing that appellant was deprived of or waived any rights as a result of not being represented by counsel at his preliminary examination.
The judgment is affirmed.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal from an order of the district court of Reno County, Kansas, denying appellant’s motion initiated pursuant to the provisions of K. S. A. 60-1507, to vacate and set aside the judgment and sentence of that court in a criminal action.
The vague and incomplete record discloses that appellant, Lloyd William Huston, hereafter referred to as plaintiff, was confined in the Reno County jail on the charge of grand larceny for feloniously stealing and carrying away personal property belonging to another. Since it was determined that plaintiff was unable to employ counsel, the court, on December 14, 1961, appointed Mr. Clair D. Hyter, a member of the Reno County Bar, to represent him.
After consulting with his attorney and on December 15, 1961, plaintiff was taken before the district court where he was questioned by the judge as to whether he desired court-appointed counsel and if he had talked to Mr. Hyter, and plaintiff replied that he had. The judge further inquired of plaintiff if he was willing for Mr. Hyter to represent him and in reply to this inquiry the plaintiff said, “yes sir, if it is okay.”
Immediately following this colloquy, the plaintiff voluntarily entered his plea of guilty to the charge of grand larceny and thereafter evidence of a prior felony conviction to which plaintiff admitted in open court, was offered into evidence. The court then sentenced the plaintiff under G. S. 1961 Supp. 21-533 (now K. S. A. 21-533) and G. S. 1949, 21-107# (now K. S. A. 21-107a), to the Kansas State Penitentiary for a term not exceeding ten years.
On September 3, 1964, plaintiff filed his motion to vacate and set aside the judgment and sentence in his criminal action and this motion was heard on September 28, 1964. During this time, plaintiff was duly represented by his court-appointed counsel, Mr. John H. Shaffer, a member of the Reno County Bar. On October 28, 1964, the court denied plaintiff’s motion on the ground plaintiff was not denied due process of law and from this order plaintiff perfected his appeal to this corut where again he was favored as having as his court-appointed counsel Mr. Kenneth E. Peirce, a member of the Reno County Bar, to represent him in this court.
The plaintiff principally contends that the time between the date counsel was appointed and the date he entered his plea of guilty, he was not afforded adequate time to consult with his counsel and, as a result, he was denied the effective assistance of counsel in violation of due process of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States.
The record discloses that the provisions of K. S. A. 62-1304, which requires the court to appoint counsel for an indigent defendant, was fully complied with. The duties prescribed for counsel are set out in the above mentioned statute and it must be presumed, absent a showing to the contrary, that court-appointed counsel complied with and performed all his duties as counsel for defendant.
In Goetz v. Hand, 185 Kan. 788, 347 P. 2d 349, it was said:
“We therefore hold in a criminal action where counsel is appointed to represent an accused who is sentenced to imprisonment upon his plea of guilty, a judgment record showing full compliance with the jurisdictional requirements of 62-1304, supra, insofar as applicable, is prima facie evidence to prove that the primary rights of the accused to a trial have been safeguarded as provided in the statute, and the uncorroborated statements of tire accused in a subsequent habeas corpus action are insufficient to overcome this evidence. . . .” (1. c. 793,794.)
The contention that plaintiff was denied the effective assistance of counsel because of the brevity of time he had to consult with counsel is supported only by his uncorroborated statement. In fact, the record shows otherwise. It reveals, as previously stated, that the district court inquired of plaintiff if he had talked with Mr. Hyter and his answer was that he had.
Plaintiff’s replies to the court’s inquiries clearly and unequivocally show that he must have been completely satisfied with the advice and assistance he received the day before when he discussed his case with counsel, otherwise he would not have accepted Mr. Hyter’s services when the court asked if he was willing to have Mr. Hyter- represent him.
Plaintiff’s own statements which” affirmatively show his satisfaction with Mr. Hyter’s services and which, we may add, negates any subsequent idea he may have received as an afterthought, would put an abrupt end to this appeal. For this reason alone the judgment of the district court was correct and should be affirmed. However, it is not necessary that we rely solely or limit our holding based upon plaintiff’s remarks during this inquiry.
Rule 121 (g) of the Supreme Court reads:
“Burden of Proof. The movant has tire burden of establishing his grounds for relief by a preponderance of the evidence. The uncorroborated statements of the movant shall be insufficient to sustain the burden of proof.”
The rule that the unsupported and uncorroborated statements of a defendant do not sustain the burden of proof is well established in this state. In Williams v. Crouse, 193 Kan. 526, 394 P. 2d 96, it was said:
“. . . The appellant’s conviction . . . carries a presumption of regularity, and where one convicted of a crime attacks such judgment . . . on the ground that his constitutional rights were violated, he has the burden of proof to establish such fact by a preponderance of the evidence. (Andrews v. Hand, 190 Kan. 109, 121, 372 P. 2d 559.) That burden is not sustained by his unsupported statements. (McGee v. Crouse, 190 Kan. 615, 376 P. 2d 792; Hardman v. Hand, 190 Kan. 148, 149, 373 P. 2d 178.)” (1. c. 530.)
See, also, Prater v. Hand, 185 Kan. 405, 345 P. 2d 634, where it was stated:
“The established rule of this jurisdiction is that the unsupported and uncorroborated statements of the petitioner in a habeas corpus proceeding do not sustain the burden of proof or justify the granting of a writ where— as here—the judgment rendered is regular on its face and entitled to a presumption of regularity and validity and all of our decisions so hold. See, e. g., Thomas v. Hand, 184 Kan. 485, 486, 337 P. 2d 651; Stebens v. Hand, 182 Kan. 304, 309, 320 P. 2d 790; Ferguson v. Hoffman, 180 Kan. 139, 141, 299 P. 2d 596; Cunningham v. Hoffman, 179 Kan. 609, 611, 296 P. 2d 1081; Hartman v. Edmondson, 178 Kan. 164, 166, 283 P. 2d 397; Dionne v. Hudspeth, 166 Kan. 72, 73, 199 P. 2d 176; Kendall v. Hudspeth, 162 Kan. 307, 308, 176 P. 2d 254.” (1. c. 407.)
After a complete review of the record, we hold that the plaintiff did not sustain his burden of proof.
Other contentions, although neither argued nor briefed but contained in the statement of points, have not been overlooked, but have been examined, and found to be completely lacking in merit, and the district court did not err in denying relief.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Horton, C. J.:
The facts in this case are substantially as follows: On October 4,1878, David H. Mitchell and his then wife, Martha B. Mitchell, executed and delivered to M. H. Insley their warranty deed conveying over 500 acres of land in Jefferson county, in this state. On October 8, 1880, Ins-ley filed his petition in the district court of Jefferson county against Sarah A. Mitchell and her tenant, James M. Kerr, for the recovery of 200 acres of the land embraced in said warranty deed. This petition followed the usual statutory form. (Code, § 595.) To this petition Sarah A. Mitchell and her tenant, James M. Kerr, filed separate answers. Each answer contained only a general denial of the allegations in the petition. The issues thus formed were submitted to the court without a jury, with a request that the court find the facts specifically, and state its conclusions of law thereon. This was done. Among other findings of fact were the following:
“That on October 4th, 1878, Sarah A. Mitchell borrowed of M. H. Insley the sum of $2,000, payable within one year from date, with interest at 12 per cent, per annum; that on the same day, David H. Mitchell and his then wife, Martha B. Mitchell, executed and delivered to M. II. Insley their warranty deed of the lands described in the petition, together with other lands, all situate in Jefferson county; that this deed was recorded in the office of the register of deeds of Jefferson county on October 5, 1878; that David H. Mitchell, at the execution of said deed, was the owner in fee simple of the land described therein; that M. H. Insley executed and delivered to David H.- Mitchell a memorandum in writing, at or about the same time of the receipt of said deed, agreeing at any time within one year from date thereof to reconvey said land to David H. Mitchell, upon the payment of said sum of $2,000 with interest at 12 per cent, per annum; that the conveyance of said land was intended as security; that neither said sum of money, nor interest, nor any part thereof, had been paid to M. H. Insley; that M. H. Insley, in making said loan and in obtaining said deed, acted in good faith.”
The court upon the facts concluded that the deed and memorandum of October 4,1878, constituted a mortgage to secure the payment of $2,000; and that M. H. Insley had a lien upon the land described therein for the amount due upon the loan; and that his remedy, if any, was not by ejectment. Judgment was rendered in that action for the costs in favor of defendants, Sarah A. Mitchell and James M. Kerr. Subse quently, and on February 8, 1883, Insley commenced his ac- ■ tion in the district court of Jefferson county, against David H. Mitchell, Martha B. Mitchell, Sarah A. Mitchell, V. H. Harris, W. A. H. Plarris, et al., to foreclose, as a mortgage, .said deed of October 4, 1878, and attached to his petition the findings of fact and conclusions of law found and stated in the former action of M. H. Insley v. Sarah A. Mitchell and James M. Kerr.
David H. Mitchell and his wife, Martha B. Mitchell, admitted the correctness of Insley's petition and the allegations therein, by making default. Sarah A. Mitchell filed a separate answer and cross-petition, wherein she denied generally all the .allegations of the petition. She also alleged that the findings of law and fact set forth in the petition were entirely foreign to the issues in the ejectment action between Insley and herself, and that the court rendering judgment in that case had no power, authority or jurisdiction to make or render any general or special judgment therein, and that the findings of law and of fact and the judgment were null and void. She further alleged, that the title to the premises was in her under and by virtue of a sheriff's deed, and that the mortgage deed of October 4, 1878, was executed with the intent to cheat and defraud her, and was void.
The defendants Y. H. and ~W. A. H. Harris filed separate answers, which contained the same defenses as that of Sarah A. Mitchell; and further alleged that they were the owners in fee simple and in the peaceable possession of the premises described in their ans-wers. They also alleged that the title and interest of the other defendants were wholly inferior to and void as against their title. Insley filed his replies to the various answers and cross-petitions. Trial had by the court, without a jury.
It is claimed that the district court erred and abused its discretion in refusing the motion of Sarah A. Mitchell, one of the defendants, for a change of venue. Her motion alleged that the district judge, Plon. Robert Crozier, was a material witness on the trial of the action, and disqualified to sit in the case. Upon the bearing of the motion, the attorneys of Sarah A. Mitchell stated she expected to prove by the district judge that the ejectment action, of Insley against herself and Kerr was tried in Leavenworth city, Leavenworth county, in vacation, and not in Jefferson county; that the alleged judgment was pronounced in Leavenworth city and transmitted to the clerk of the district court of Jefferson county, to be entered as of the last day of the October term of court for 1882. The record controverts the assertions of the attorneys of Sarah A. Mitchell, and shows the case was tried in Jefferson county, at the October term thereof for 1882.- The record imports absolute verity, and cannot in a collateral proceeding be overthrown by parol 'testimony; hence there was no error in refusing the change of venue, because the evidence sought to be introduced was wholly immaterial, and also for other reasons. (In re Watson, 30 Kas. 753.) The objection to the admission of the record in the ejectment action on the ground that the case was tried in vacation, for a like reason is equally untenable. Earls v. Earls, 27 Kas. 538, is not in conflict with this conclusion. In that case, the fact that the judgment was rendered and entered in vacation appeared upon the face of the record, and this point was raised directly in the petition in error.
The important question for our consideration in this case is, whether all the findings of fact in the ejectment action are conclusive upon Sarah A. Mitchell in the foreclosure suit. It is the general duty of the court trying a case to find upon all the issuable facts; yet findings which are not necessarily included in and become a part of the judgment, are not conclusive in other actions. Even where such findings are confirmed by final judgment, they are adjudications only so far as they are necessarily included in and become a part of the judgment. (Auld v. Smith, 23 Kas. 65.) “A thing contained in the finding or verdict, but not included in or confirmed by the judgment, cannot be considered as an adjudication or used as evidence, unless some other ground can be found for its use than merely that it is contained in such finding or verdict.” (Auld v. Smith, supra; McCandliss v. Kelsey, 16 Kas. 557; Brenner v. Bigelow, 8 id. 496.)
In the ejectment action; Insley claimed title paramount to that of the defendants. The defendants had the right to show anything that would tend to prove or disprove the plaintiff’s cause of action. (Clayton v. School District, 20 Kas. 256.) As all the parties in that case claimed title from David H. Mitchell, the sheriff’s deed to Sarah A. Mitchell and the deed of October 4,1878, to M. H. Insley, were directly in issue. Both of these alleged titles had to bear judicial investigation. The findings of fact were made at the request of the parties; and it is apparent from such findings that the court found that the deed of October 4, 1878, was not only executed, but further found it was not fraudulent, and that it was paramount to the sheriff’s deed to Sarah A. Mitchell. In this condition of the case, to defeat Insley’s title, Sarah A. Mitchell undoubtedly offered her evidence, showing that such deed was in effect a mortgage only. All the findings, except the one that no part of the mortgage or interest had been paid, were adjudications binding until reversed, and we do not think they can be attacked collaterally. We do think, however, the finding that “ Said sum of money, or interest, or any part thereof, has not been paid,” was not necessarily embraced in the issues or included in the judgment in ejectment. The defendants in the ejectment action defeated the paramount title of Insley when they established that his deed, upon which he relied, was a mortgage only. The makers of that mortgage were not parties in the ejectment action, and it was not only unnecessary, but out of place, to have an account taken in that action as to the actual amount of money due upon the mortgage. The amount due on the mortgage in the ejectment action was wholly immaterial. The adjudication is conclusive upon the parties that the deed was a mortgage, and, perhaps, that something was due, but not the amount; therefore Sarah A. Mitchell is not estopped by the findings and judgment in the ejectment action from contesting tbe amount due on the mortgage. The trial court committed error in ruling that the finding of the amount due upon the mortgage in the ejectment action was conclusive in the foreclosure suit, and in refusing to receive evidence tending to contradict said finding.
We have not thought it necessary to refer to V. H. and W. A. H. Harris, the other defendants in the foreclosure suit, in connection with the findings in the ejectment action, because upon the trial V. H. and W. A. H. Harris claimed to own the lands described in their answers in fee simple by tax deeds, and adversely to their co-defendants. Their alleged title, if they possess any title, is superior to that of either M. H. Ins-ley or Sarah A. Mitchell, and therefore, notwithstanding the allegations in their answer, they are not interested in the findings or proceedings in the ejectment action. They.are not called upon to dispute such findings or judgment. Even if their tax deeds are defective, their claims thereunder are not interfered with in any way by the priorities of the inferior liens of the other parties.
It is not necessary to dispose of the other questions submitted, as a new trial must be had, and it is more than probable that "V. H. and W. A. H. Harris will with the consent of the court amend their answers, and thus the issues may be somewhat changed at another trial.
The judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring. | [
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Per Curiam:
This case was heard and decided by the supreme court at its January term, 1884, and the judgment of the court below was affirmed. (Rullman v. Hulse, 32 Kas. 598.) The plaintiff in error now moves'for a rehearing.
Under the statutes of Kansas an ordinary civil action for the recovery of money can be brought only in the county in which the defendant or some one of the defendants reside or may be summoned. (Civil Code, § 55.) And before a summons can be rightfully issued from one county to another, the persons served with the summons in the county in which the action is brought must have some real and substantial interest in the subject of the action, adverse to the plaintiff, and against whom some substantial relief may be obtained; and the action must be rightfully brought in the county in which it is brought, and as against the person served with summons in such county. (Brenner v. Egly, 23 Kas. 123; Dunn v. Hazlett, 4 Ohio St. 435; Allen v. Miller, 11 id. 374.) And an attachment against property can be had only in a civil action for the recovery of money at or after the commencement of the action, and by making and filing a proper affidavit of the plaintiff, his agent or attorney, showing the nature of the plaintiff’s claim; that it is just; the amount which the affiant believes the plaintiff ought to recover, and the existence of one or more of the grounds for attachment mentioned in § 190 or § 230 of the civil code; and the attachment provided for by § 230 of the civil code can be had only after it has been granted by the court or a judge; and except in case of non-residence, the order of attachment cannot be issued until after a proper undertaking-has been given; and when the order of attachment has been issued it can then be levied only upon the property of the defendant against whom the attachment was issued, and only upon such property of his as is not exempt from judicial process; and when the order of attachment has been issued and levied upon the property, the attachment may in any proper case and for any good and sufficient reason be vacated or discharged upon motion by any person interested in its discharge. (Watson v. Jackson, 24 Kas. 443; Green v. McMurtry, 20 id. 189, 193.) The statute authorizing the discharge of attachments does not create any limitation upon the reasons or grounds for the discharge of attachments, or intimate that there is any such limitation. (Civil Code, §§ 228, 229.) It would therefore seem to follow that if no action is really commenced, or is commenced in the wrong county, or if the action is not a civil action or not for money, or not commenced at or before the time when the attachment is issued, or if no affidavit for the attachment is filed, or the affidavit is not sufficient, or does not show the nature of the plaintiffs claim, or that it is just, or £he amount which the affiant believes the plaintiff ought to recover, or if the attachment is under § 230-of the civil code and has been granted by the court or a judge, • or if it appear that the grounds for the attachment are not true, or if an undertaking is necessary and no proper undertaking has been given, or if the property attached does not belong to the defendant or is exempt from judicial process,, the plaintiff could not maintain his attachment as against any person interested in having it discharged and who has made the proper motion for its discharge. This would certainly be the case if the defects or irregularities appeared on the face of the proceedings, as in the present case, but of course it would not be so certain in some of the above cases if it had to be-shown by evidence dehors the record.
It has already been held by the supreme court of Kansas-that where an action has been brought against a non-resident. who. was not in the county, and had no property or debts owing to him therein, and where an attachment was issued in such action to another county and there levied upon the defendant’s property, (which could have been allowable if the action had been rightfully brought in the county in which it was brought,) the attachment was void as against a subsequently attaching creditor. (Carney v. Taylor, 4 Kas. 178.) The statute provides that an action against a non-resident may be brought in any county in which the defendant or his property may be found, or in which debts are owing to him. It has also been held that on a motion to discharge an attachment against a non-resident, the defendant may, for the purpose of discharging the attachment, show that the action did not arise wholly within the limits of Kansas, as is required in such cases by the statute. (Stone v. Boone, 24 Kas. 337.) It has also been held on a motion to discharge an attachment, that the defendant may controvert the grounds for the attachment, although in so doing he may controvert some of the allegations of the petition. Bundrem v. Denn, 25 Kas. 430, 435.)
The only express mode of dissolving an attachment in Kansas is by motion. (Civil Code, § 228.) . And the motion may be made before or after appearance by the defendant or before or after pleading by him. Of course, if the plaintiff should fail in his action, the attachment, which is only an incident thereto, would go with the action. ‘ But this failure is never considered as one of the distinctive modes, and is not an express mode of dissolving an attachment.. The attachment may be dissolved upon motion, and for proper reasons before such failure and without reference thereto. In some of the states the mode of dissolving an attachment is by plea in abatement, and in some of the states the defendant is required to appear and plead before he can ask to have the attachment dissolved, but this is not the case in Kansas. In a state where it is required that a defendant should plead before asking to have the attachment dissolved, there would be great reason for holding that nothing could be considered on the hearing of the application for the dissolution of the attachment which might be put in issue by the- pleadings and might be involved in the merits of the action, or which might be. heard and decided on the final trial of the case; and indeed there would be some reason for, such a holding in any state, even where the defendant is not required to plead before moving to dissolve the attachment, and whether he has so pleaded, or not. ■ But in Kansas-, it is not strictly true that nothing can be considered on a motion to dissolve an attachment which is involved in the merits of the. action. (Bundrem v. Denn, 25 Kas. 430, 435.) But .even if such a thing were strictly true in Kansas, still it would not affect the decision in this case, for nothing was heard or decided or could be heard or decided in this case which could be heard or decided on the final trial upon the merits of the action. Whether the defendant in this case was rightfully sued in Doniphan county, or not, is not one of the issues presented by any of the pleadings in this case; and such a question could not be heard or tried upon the final trial upon the merits of the case. The only manner in which such a question could be heard or tried would be upon a- motion to dissolve the attachment, or a motion to quash or set aside the summons or the service thereof, or a plea in the nature of a plea in abatement, filed and presented for hearing before answer to the merits, and before any general appearance in the case. And therefore, as the question must be heard, if heard at all, upon a motion of some kind or a plea in abatement, and not upon the final trial upon the merits, is it not better that it should be heard and decided at the earliest possible moment ? It might be heard upon a motion to discharge the attachment at a very early day, while there might not be any possibility of its being heard upon a motion to quash or set aside the summons or the service thereof, or on a plea in abatement, for several months. The defendant might be in great need of the property, or it might be of such-a perishable nature that it could not be kept for any considerable length of time.
For further argument upon all the questions involved in this case, see the original opinion in this case, Rullman v. Hulse, 32 Kas. 599; same case, 5 Pac. Rep. 176. We think the decision of the court below in this case is correct. It seems to be sustained by good reason and the statutes of Kansas, and we know of no decision under similar statutes against it. (See Waples on Attachment and Garnishment, 526, et seq.)
We have examined all the cases cited by counsel, and we do not think that any of them conflicts with our decision in the present case. The case of Drea v. Carrington, 32 Ohio St. 595, upon which the plaintiff in error seems so confidently to rely, is not applicable to the present case. In that case no attachment was asked for or issued, and no motion was made to dissolve an attachment; indeed, there was nothing relating to an attachment in the case. The petition stated a cause of action against all the defendants, and some of them filed a motion to dismiss, and also an answer, both controverting the allegations of the petition; and the court held that the case could not be tried upon the motion, but must be tried upon the answer, and that the case was such that either party had a right to a trial by jury. No such questions are raised in the present case. The question in the present case is whether an attachment shall be discharged, or not; and not whether any of the allegations of the petition are true, or not. The motion to discharge the attachment in the present case does not controvert any of the allegations of the petition, nor even any of the allegations of the plaintiff’s affidavit for the attachment. For the purposes of this case, it may be admitted that every allegation of the petition is true, and that every statement made in the plaintiff’s affidavit for the attachment is true. But the other portions of the record, with some corroborating evidence, show that the defendant in the attachment was not rightfully sued in Doniphan county, and that no order of attachment should have been issued against him in that county; and there-foi’e the record, with such evidence, shows that the attachment was wrongfully issued against the defendant in the present case.
The motion for a rehearing will be overruled. | [
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Per Curiam:
This was an action brought in the district court of Atchison county, Kansas, by Charles Henry Berten-shaw and Mary Maud Bertenshaw against Linn B. Hargrove, as sheriff of Atchison county, Kansas, and John Belz, to enjoin the sale of certain real estate. The plaintiffs also asked for a temporary injunction pending the litigation. The application for the temporary injunction came on for heai’ing before the court, both parties being present, and after the hearing of the application the court refused to grant the injunction, and from such refusal the plaintiffs bring petition in error to this court. The plaintiffs in error have also filed a motion asking this court to grant an order restraining and enjoining the defendants, and each of them, from selling or disposing of the real estate in controversy until the case can be finally decided in this court. This motion came on for hearing before the supreme court, and not only the motion, but the merits of the application in the court below for the temporary injunction, were thoroughly discussed; and this court is' now fully prepared to render a decision upon the question as to whether the temporary injunction should have been granted, or not. We think the temporary injunction should have been granted.
The questions upon the final hearing of the case are not free from doubt, and whether they should be finally decide'd in favor of the plaintiffs, or in favor of the defendants, we are not prepared to say, and do not wish to express any opinion with reference thereto. But as before stated, the questions to be finally decided are of such a serious character that we think the temporary injunction should be granted, and should remain in force' until the case can be finally decided upon its merits. No material harm can result from granting the temporary injunction, while serious harm and difficulty may result if it is not allowed. To permit the sale to proceed before these other questions are determined may so complicate the conflicting rights of the parties that they can only be afterward settled with great difficulty, and possibly with much litigation. We have, therefore, although a little irregularly, concluded to decide this petition in error upon its merits. We shall therefore reverse the decision of the district court, and remand the case with the order that the temporary injunction shall be granted. | [
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The opinion of the court was delivered by
Price, J.:
This is an action to recover damages arising out of an intersection collision of two automobiles.
Plaintiff has appealed from an order dismissing her action.
A brief summary of the pleadings and orders will be sufficient to show the question presented.
The collision occurred on February 15, 1959. The action was filed on February 13, 1961, and was given case No. 10,205. On January 5, 1962, defendant’s motion to strike and to make definite and certain was sustained in part and denied in part, and plaintiff was granted twenty days within which to file an amended petition. She failed to do so within that time and, on March 9, 1962, presumably under the authority of G. S. 1949, 60-3105, Fifth, which provides that an action may be dismissed by the court without prejudice to a future action for disobedience by the plaintiff of an order concerning the proceedings in the action, defendant’s motion to dismiss the action was sustained. The order stated that—
“. . . this cause is hereby dismissed without prejudice at the cost of plaintiff.”
On April 27, 1962, plaintiff’s motion to reinstate the action and for leave to file an amended petition instanter was denied, thus leaving the action dismissed without prejudice, in accordance with the order entered on March 9, 1962.
G. S. 1949, 60-311, in pertinent part, provides that if an action be commenced within due time and the plaintiff fails therein otherwise than upon the merits and the time limited for the same shall have expired, he may commence a new action within one year after such failure.
Pursuant to this statute plaintiff on May 24, 1962, filed a new action. It was given case No. 10,248. The petition alleged the filing of the first action within time, that it was dismissed on March 9, 1962, without prejudice and thus failed otherwise than on the merits, and that the new action was filed under the authority of the mentioned statute. A copy of the petition in the first action was attached as an exhibit. Defendant filed a demurrer to the petition and a ruling thereon was taken under advisement. In the meantime a motion was filed by plaintiff, supported by an affidavit, to correct a typographical error in the petition. On August 14, 1962, defendant’s demurrer to the petition was sustained and plaintiff was given twenty days in which to amend. On September 1, 1962, plaintiff filed an amended petition. On September 10, 1962, defendant filed a demurrer to the amended petition on the ground it did not state facts sufficient to constitute a cause of action, and on January 20, 1964, defendant filed a motion to dismiss the action on the grounds it failed to state a claim against defendant upon which relief could be granted and that the court lacked jurisdiction because plaintiff’s claim was barred by the statute of limitations.
On June 8, 1964, defendant’s motion to dismiss was sustained, but for reasons not here material a formal order of dismissal was not entered until October 23,1964.
Plaintiff has appealed from the order of dismissal.
Throughout the proceedings in the trial court defendant was represented by counsel, but in this appeal no brief on behalf of defendant was filed and no one appeared in his behalf upon oral argument.
Under established rules, however, plaintiff, as appellant, is entitled to be heard, and this court accepted the appeal on the record and brief filed by her.
The matter appears to be quite simple.
Plaintiff filed her original action within time. The dismissal of it on March 9, 1962, amounted to a failure thereof “otherwise than upon the merits,” and, under G. S. 1949, 60-311, plaintiff was entitled to commence a new action within one year from that date. She did so, and her petition alleged the facts and circumstances of the first action so as to bring the second action within the terms of the statute in accordance with the ruling of Force v. Bates, 177 Kan. 438 (Syl. 1) 280 P. 2d 584. In fact, even the amended petition in the new action was filed within one year from the date of dismissal of the original action. It stated a cause of action, which, under the circumstances, was not barred by the statute of limitations. The second action, therefore, was erroneously dismissed, and the order must be and is reversed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for divorce filed by the husband. The divorce was granted the defendant on her cross petition. As a part of that judgment property rights were adjudged. The defendant has appealed from that portion of the judgment settling the property rights.
The petition alleged that the parties owned approximately $15,000 in stocks and bonds, which they had accumulated through their joint efforts, and that it was in the possession of the defendant and was being managed by her. It referred to five pieces of real property, one being what is known as the Gas City property, at an alleged value of $5,000; one house and lot at a value of $2,500; another house and lot of the value of $1,000; one house and lot at the value of $1,500; and two vacant lots at the value of $1,000; that plaintiff and defendant had been separated and living apart for five years and defendant had been guilty of abandonment and gross neglect of duty for more than a year.
The prayer was for a divorce and the determination of property rights and other relief.
The defendant admitted ownership of stocks and household furniture but denied that they were worth $5,000; admitted ownership of the real estate but denied the values placed on it by the plaintiff; alleged the property was acquired by her from moneys earned by her or inherited by her; and denied it was acquired by the joint efforts of the parties. All other allegations were denied.
For a cross petition she alleged they owned certain stocks, an automobile and set out the same' parcels of real estate that had been referred to in the plaintiff’s petition and alleged that this property had been acquired by money earned or inherited by her; that the plaintiff had been guilty of extreme cruelty and gross neglect of duty and abandonment for more than a year; alleged that she was physically ill and unable to work; that her medical expenses had been high; that she received no support from plaintiff for more than a year and had no' money to hire counsel. Her prayer was that the divorce asked for by plaintiff be denied and that she be granted separate maintenance from the plaintiff and for reasonable attorney fees.
' The court found the issues in favor of the defendant and against the plaintiff and that the plaintiff had been guilty of gross neglect of duty and abandonment for more than one year and that judg ment should be rendered granting defendant a divorce from the plaintiff. It should be stated here parenthetically that while the defendant was on the stand she testified that she wanted a divorce rather than separate maintenance.
' As to the property, the trial court set aside to defendant the Gas City property, and all household goods belonging to the litigants. The court also gave her all stocks, bonds, and securities owned by them, also the Ford car. There had been some evidence about money defendant had inherited from her father’s estate. The court found this was included in the property decreed to the defendant. The court gave the other four pieces of real estate to the plaintiff as his sole and separate property, also his clothing and personal effects. The plaintiff was ordered to pay the costs of the action.
The defendant’s prayer for attorney fees was denied and the defendant was divorced from her husband.
The defendant filed a motion for a new trial on nine grounds. It will not be necessary to set them out here except that the ninth ground was error in failing to allow attorney fees to defendant’s attorney. This motion was overruled — hence this appeal.
The defendant argues here the question involved is whether she was entitled to an allowance of alimony and whether she was entitled to an allowance of attoney fees and was the judgment decreeing the property rights inconsistent with the law and facts and inequitable.
' Defendant refers to G. S. 1947 Supp., 60-1511. That section provides, in part, as follows:
“When a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall be restored to her maiden or former name if she so desires, and also to all the property, lands, tenements, hereditaments owned by her before her marriage or acquired by her in her own right after such marriage, and not previously disposed of, and shall be allowed such alimony as the court shall think reasonable, having due regard to the property which came to him by marriage and the value of his real and personal estate at the time of said divorce; which alimony may be allowed to her in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or in installments, as the court may deem just and equitable. If the divorce shall be granted by reason of the fault or aggression of the wife, the court shall order restoration to her of the whole of her property, lands, tenements and hereditaments owned by her before, or by her separately acquired after such marriage, and not previously disposed of, and also the court may award the wife such share of her husband’s real and personal property, or both, as to the court may appear just and reasonable; and she shall be barred of all right in all the remaining lands of which her husband may at any time have been seized. And to such property, whether real or personal, as shall have been acquired by the parties jointly during their marriage, whether the title thereto be in either or both of said parties, the court shall make such division between the parties respectively as may appear just and reasonable, by a division of the property in kind, or by setting the same apart to one of the parties, and requiring the other thereof to pay such sum as may be just and proper to effect a fair and just division thereof.”
It is argued that when the trial court here found the issues in favor of the defendant and against the plaintiff the court was required to allow reasonable alimony. As a matter of fact, the real question is whether the property division made was equitable. The question of the division of property between spouses who have found it necessary to get a divorce is one of wide discretion. In Rumsey v. Rumsey, 150 Kan. 49, 90 P. 2d 1093, we held:
“The trial court has a wide discretion in the allowance of alimony and attorney fees, and its exercise of that discretion, unless clearly abused, will not be disturbed on appeal.”
See, also, Metcalf v. Metcalf, 132 Kan. 535, 296 Pac. 353; also, Hendricks v. Hendricks, 136 Kan. 69, 12 P. 2d 804.
In this action the plaintiff and defendant both testified. They seemed to have lived a frugal life and to have accumulated considerable property. We have read the abstract carefully and are unable to reach an exact conclusion as to the financial condition of the parties. There is a conflict of evidence as to the value of the real estate. However, the parcel all of the parties, even the defendant, considered the most valuable, that is, the Gas City house and lot, was awarded to the defendant. She, herself, testified she was the owner of twenty shares of Ford Motors Limited; twenty shares of Radio Corporation of America; two shares of American Central Company; twenty shares of Commercial Solvent Company; twenty shares of American United States Steel Corporation; five shares of Alexander Industries; ten shares of Safeway Stores, Inc.; eleven shares of Electric Bond and Share Company; ten shares of American Eagle Lincoln Aircraft; ten shares of Electrical Power and Light Company; ten shares of General Electric Company; twenty-five shares of Monarch Lead Company; three shares of Cities Service Stock; one share of Paramount Pictures, Inc.; eight shares of International Combustion Engineering Company; one share of common and one preferred of the 20th Century Fox Pictures; twenty shares of Bock Aircraft and some Kiner Airplane stock. She testified these had been worth $1,500. It is common knowledge that the stocks noted had a value in excess of that testified to by the defendant.
The court heard the evidence and saw the witnesses on the stand. There was wide disparity in the testimony as to the values of the various pieces of real estate by each party and by one other witness. The trial court had some idea about these values. We cannot say what value the trial court placed on these properties or that it abused its discretion in making the settlement.
Defendant argues the trial court erred in not allowing her attorney a fee for services in the district court. The question of allowance of attorney fees is governed by G. S. 1935, 60-1507. It provides, as follows:
“. . . and may make such order relative to the expenses of the suit as will insure to the wife an efficient preparation of her case; and on granting a divorce in favor of the wife or refusing of the application of her husband, the court may require the husband to pay such reasonable expenses of the wife in the prosecution or defense of the action as may be just and proper, considering the respective parties and the means and property of each. . . .”
In Rumsey v. Rumsey, supra; Deeds v. Deeds, 108 Kan. 770, 176 Pac. 1109; and Hipple v. Hipple, 128 Kan. 406, 278 Pac. 33, we held that the court was allowed wide discretion in allowance of attorney fees. Unless there was an abuse of discretion it will not be disturbed on appeal. No doubt the court here took the fee into account when making the property division that it did make.
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The opinion of the court was delivered by
Thiele, J.:
This was an action for forcible detainer. From an adverse judgment the defendants appealed to the district court, where their appeal was dismissed. They have appealed to this court from that ruling.
For information purposes it is noted that on August 20, 1947, one Mauersberger, guardian of Mary E. Schumacher, an insane person, commenced an action against Ben H. Hall and Belle M. Hall to set aside a deed dated May 16, 1947, made by the insane person to the Halls for the same real estate involved in the forcible detainer action under consideration, it being alleged the deed was procured by fraud. Tom Ward, alleged to be a tenant on the real estate, was made a party defendant. Just why this action, which would have determined many matters involved in this present appeal, has not been tried and determined is not before us.
The record as abstracted shows that on September 8, 1947, the Halls filed a complaint in the justice of the peace court, alleging they were the owners of the real estate involved; that by agreement with them Tom Ward and Mrs. Tom Ward entered into possession as tenants; that notices to terminate the tenancy and to quit the premises or action would be commenced were served upon the Wards and that the Wards continued to hold possession to which Halls were entitled. Halls prayed judgment for restitution. It is unnecessary to-note motions filed in the action in the district court and in the justice court action. On March 27, 1948, the forcible detainer action was tried. The defendants Ward were in default and judgment was rendered against them. They duly appealed to the district court.
On June 8, 1948, the Wards sought and obtained an order of the district court consolidating the two actions for trial. On the same day they filed in the district court their answer in the forcible detainer action, containing a general denial, as well as a specific denial that at the time of the commencement of the action the Halls were the owners of “or were entitled to the possession of the premises described” and they then alleged at length that the title was in Schumacher and that they were her tenants.
On July 14, 1948, the Halls filed their motion that Wards’ appeal from the justice of the peace court in the forcible detainer suit be dismissed for the asserted reason that the question of the title of the involved real estate had been raised on appeal and the district court was without jurisdiction to render judgment on the question of title, and that the district court was without jurisdiction of the subject matter upon appeal.
On January 25,1949, the district court ruled on the motion to dismiss and held that the question of title not having been raised in the justice of the peace court could not be raised on appeal in the district court and that it was without jurisdiction to determine title. It dismissed the appeal and remanded the cause to the justice of the peace court “to be thereafter proceeded in as if no appeal had been taken.” Whether necessary or not, a matter which will not be discussed, the Wards filed their motion for a rehearing. This motion was denied. In due time the Wards perfected their appeal to this court from all adverse rulings.
The appellants specify error in three particulars. One is that the district court erred in vacating a certain restraining order. At the oral presentation of this appeal they withdrew their contentions in that respect and we shall not discuss that part of their written brief devoted to that specification. The other specifications are that the district court erred in holding that it was without jurisdiction and in its ruling dismissing the appeal.
From the record above reviewed, it clearly appears that insofar as the trial in the justice of peace court is concerned, the defendants filed no pleading attempting to show title for any purpose, and hence there was no occasion there and at that time for the operation of G. S. 1935, 61-107, which provides that if in any action commenced before a justice it appears to the satisfaction of the justice that the title of land is in dispute in such action, the action shall be stayed and the justice shall certify the case to the district court for disposal, under the conditions set forth in that section. The above section has existed in its present state since 1870 and has been considered in many cases, a review of which would unduly extend this opinion, and for that matter, would not answer the principal question now presented as to whether the defendants in a forcible detainer case may wait until the action has reached the district court on appeal to raise the question of title of the involved real estate. In arguing that they may do so appel lants direct our attention to Conaway v. Gore, 27 Kan. 122; McClain v. Jones, 60 Kan. 639, 57 Pac. 500; and Dineen v. Olson, 73 Kan. 379, 85 Pac. 538, holding that a defendant may interpose any defense he may have, legal or equitable, to an action against him and that he is not driven from one court to another to assert such defense; to Douglass v. Easter, 32 Kan. 496, 4 Pac. 1034, where it was held that a defendant appealing from a judgment of a justice of the peace in an action for trespass on real estate, may offer evidence in the district court that the title is in dispute although no answer was filed by him before the justice nor any evidence offered; to Lyman v. Stanton, 39 Kan. 443, 18 Pac. 513, where it is held that where an action is commenced before a justice of the peace and the defendant answers showing title in dispute, and the action is held for trial by the justice, on appeal the district court has jurisdiction to try the case as though certified to that court by the justice; and to McConnell v. Rhone, 128 Kan. 257, 276 Pac. 830, where it was held that in a forcible detainer action prosecuted to judgment in the justice court without its jurisdiction being questioned on appeal to the district court that court has power, when it develops the title to real estate is in dispute, to certify the case to the district court proper and then try and determine the title to the property.
Although the above cases, insofar as they may appear to support a rule that on appeal to the district court title to real estate may be determined even though the question was not presented for consideration in the justice of the peace court, as distinguished from a showing of title only as an incident to the right of immediate possession, have not been overruled or expressly disapproved, it is noted that later cases have, either directly or by analogy, held that upon appeal from a justice of the peace court, the district court acquires only the limited jurisdiction of the justice of the peace and cannot, in a forcible detainer case, determine an ultimate question of title. See McCracken v. Wright, 159 Kan. 615, 157 P. 2d 814, and Reeves v. McAdoo, 165 Kan. 193, 193 P. 2d 233, and cases cited therein. We cannot sustain any contention that on the appeal in the instant case, the district court had any power to determine any ultimate question of title to the real estate involved.
Even though that be the case, the district court was not warranted in dismissing the appeal. While it is true the answer filed in the district court might be said to have presented an issue as to the ultimate title to the real estate, an issue beyond the power of the court to determine on the appeal, the title asserted could be considered as an incident to the right of immediate possession (McCracken v. Wright, supra). Other allegations of the answer include a general denial and also a specific denial of the plaintiffs’ right to immediate possession and that defendants were the tenants of the plaintiffs. It is not open to argument that on appeal taken from the judgment of a justice of the peace, the district court tries the case de novo (G. S. 1935, 61-1003 and cases cited in the annotations). In the district court, in view of the pleadings and issues, the plaintiffs had the burden of proving termination of the tenancy alleged by them, the requisite notice that the action would be brought, as well as their right to the immediate possession of the real estate, and that result could not be and was not accomplished by dismissal of the appeal.
The judgment of the district court dismissing the appeal is reversed and the cause remanded with instructions to reinstate it for further proceedings consistent herewith. | [
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The opinion of the court was delivered by
Price, J.:
The principal appeal in this case is from an order overruling a demurrer to plaintiff’s amended petition in an action brought to recover damages on account of defendant’s alleged fraud and deceit in the sale of an automobile to plaintiff.
The essential allegations of plaintiff’s original petition, which was filed January 26, 1949, are that the defendant is engaged in the business of buying and selling motor cars, both new and used, in the city of Pittsburg; that on or about December 27, 1947, following negotiations between the parties, defendant sold to plaintiff a 1935 Pontiac automobile, representing that he was the owner thereof and could give to plaintiff a good and sufficient title to the same. That plaintiff in good faith and in reliance upon said representations paid defendant the sum of $200 for the automobile, whereupon defendant assigned to him Kansas certificate of title No. A421161D, covering a 1935 Pontiac coach with engine No. 20-960. That subsequently plaintiff spent approximately $75 for repairs to the automobile and reached an agreement with another party to sell it to the latter for the sum of $300; that while in the process of making these repairs plaintiff discovered that the engine number of the automobile was 925570 instead of 20-960, as listed in the certificate of title assigned to him by defendant, and that the engine and automobile in question were therefore not the engine and automobile covered by such certificate of title No. A421161D. It is further alleged that by reason of the foregoing facts plaintiff has no title to the automobile; that it is not possible for him to acquire a proper certificate of title to it; that he cannot sell it to any other person on account of this fact; nor can he lawfully operate it himself on account of not having proper title to it as required by law, and that the sale of it to him by defendant was fraudulent and void by reason of such false representations on the part of defendant and was in violation of G. S. 1947 Supp. 8-135. It is further alleged that plaintiff has thus been damaged in the amount of $300 actual damages and that by reason of defendant’s conduct plaintiff is entitled to punitive damages. The prayer is for actual damages in the amount of $300 and for punitive damages in the amount of $2,000.
On February 16, 1949, the defendant filed a general demurrer to the petition on the ground that it does not state facts sufficient to constitute a cause of action against defendant in favor of plaintiff.
On April 28, 1949, this demurrer was overruled and on May 9, 1949, defendant filed a motion to make the petition more definite and certain by setting out when and by whom the repairs were made; by stating the name of the other party with whom plaintiff reached an agreement to sell the automobile for the sum of $300, and by setting out the date when plaintiff discovered that the engine number was 925570 instead of 20-960.
On May 14, 1949, this motion to make more definite and certain was sustained and on the same date plaintiff filed his amended petition in which was contained the additional allegations sought by the motion to make more definite and certain.
On May 21, 1949, defendant filed a general demurrer to this amended petition on the ground that it did not state facts sufficient to constitute a cause of action against defendant and in favor of plaintiff.
On May 23, 1949, plaintiff filed a motion to strike defendant’s demurrer to the amended petition on the ground it was a frivolous pleading and filed merely to hinder, retard and delay the formation and trial of the issues in the case.
On June 2, 1949, the court overruled plaintiff’s motion to strike the demurrer from the files and at the same time overruled the demurrer. Defendant has appealed from the order overruling the demurrer to the amended petition and plaintiff has cross-appealed from the order overruling his motion to strike the demurrer from the files.
For convenience we will refer to the appellant and cross-appellee as defendant, and to appellee and cross-appellant as plaintiff.
The defendant has moved to dismiss plaintiff’s cross-appeal on the ground that the ruling of the lower court upon which it is based is not an appealable order under G. S. 1935, 60-3302.
The plaintiff has filed a motion to dismiss defendant’s appeal from the order overruling the demurrer to the amended petition on the ground the demurrer was a frivolous pleading in that it presented no question of law that was not presented by defendant’s demurrer to the original petition, and that since no appeal was taken from the order overruling the demurrer to the original petition within the time required by G. S. 1947 Supp. 60-3309, the appeal from the order overruling the demurrer to the amended petition is not properly before the court. In this connection it should be stated that defendant’s appeal from the order overruling his demurrer to the amended petition was taken on June 10, 1949, which was within two months from each of the orders overruling the demurrers.
Following plaintiff’s motion to dismiss defendant’s appeal, as above set forth, the latter filed a motion on November 12, 1949, for leave to amend his notice of appeal and specification of error so as to include the error of the trial court in overruling the demurrer to the original petition. This motion was allowed, and on November 26, 1949, the amended notice of appeal and amended specification of error were filed. Plaintiff then filed a motion to set aside our order allowing this amendment, and this motion was denied with leave to renew on oral argument of the case on its merits.
Touching the matter of defendant’s motion to dismiss plaintiff’s cross-appeal, we will not labor the question but hold that under all of the facts and circumstances disclosed by the record plaintiff is within the provisions of G. S. 1947 Supp. 60-3314, relating to cross-appeals. The ruling on the point involved in the cross-appeal preceded the order from which the principal appeal was taken, and, in the nature of things, goes to the very heart of this lawsuit — namely —is the principal appeal properly before us, and, if so, was the demurrer to the amended petition properly overruled? If plaintiff’s motion to strike the demurrer had been sustained defendant would not be here on his appeal from the order overruling the demurrer. The motion to dismiss the cross-appeal is denied. (Rusch v. Phillips Petroleum Co., 163 Kan. 11, 21, 180 P. 2d 270.)
As to the merits of plaintiff’s cross-appeal, it will be remembered that it was taken from the order overruling his motion to strike from the files defendant’s demurrer to the amended petition. The theory of the plaintiff is that this demurrer was frivolous and filed only for the purpose to hinder and delay, and that this demurrer raised no question of law other than that already decided at the time the court overruled defendant’s demurrer to the original petition. With this contention we cannot agree.- After his demurrer to the original petition was overruled defendant moved to make the petition more definite and certain in several particulars. While such procedure might be considered somewhat irregular, yet defendant had the absolute right to request the court to compel plaintiff to supply the additional allegations. Pursuant to the order of the court plaintiff filed his amended petition and defendant had the right to file a demurrer thereto even though it may subsequently develop in the trial of the case that the additional allegations are immaterial. The lower court committed no error in overruling plaintiff’s motion to strike the demurrer to the amended petition and as to the cross-appeal the judgment is therefore affirmed.
This brings us to the question of plaintiff’s motion to set aside our order permitting defendant to amend his notice of appeal and specification of error and his motion to dismiss the appeal. These matters will be treated together.
Plaintiff’s argument is based upon the proposition that since the additional allegations in his amended petition, supplied by him pursuant to the court’s ruling on the motion to make more definite and certain, are merely evidentiary in nature, the cause of action set out in the amended petition is no different or in any way enlarged from the cause of action set out in the original petition; that the ruling on the demurrer to the original petition thus became the law of the case; that since defendant did not appeal in time from that ruling no valid appeal exists from the ruling on the demurrer to the amended petition, and that an amendment to a notice of appeal can only be made under the provisions of G. S. 1935, 60-3310, when there is a valid appeal existing, citing Salt City B., L. & S. Ass’n v. Peterson, 145 Kan. 765, 67 P. 2d 564; Hendricks v. Wichita Federal Savings & Loan Ass’n, 156 Kan. 124, 131 P. 2d 889, and Klemenc v. Klemenc, 164 Kan. 649, 192 P. 2d 171. We concede that those decisions are authority for the rule that the statute does not authorize the amendment of a notice of appeal which is in fact a nullity and at a time when it is too late to perfect an independent appeal from the order included in the amendment, but we do not see their application to the facts shown by the record before us. As we have heretofore said, the defendant had the absolute right to request an order to make the petition more definite and certain. The court made such an order and the defendant had an absolute right to file a demurrer to the amended petition. True, on the trial of this case the additional information supplied by plaintiff in his amended petition might prove to be immaterial, yet the fact remains it did supply certain information, among which was the date when plaintiff first discovered the alleged fraud complained of. We cannot say as a matter of law that defendant does not have a valid appeal existing from the order overruling his demurrer to the amended petition, and plaintiff’s motion to dismiss the appeal is therefore denied. In view of this holding, defendant’s motion to amend his notice of appeal and specification of error, our order granting the same, and plaintiff’s motion to set aside such order, are immaterial, and in disposing of the remaining question we will consider this as an appeal from the order overruling the demurrer to the amended petition.
Should the demurrer to the amended' petition have been sustained?
Defendant’s argument that the amended petition does not state a cause of action is based upon the theory that by virtue of the provisions of G. S. 1947 Supp. 8-135 (c) (6), which read:
“On and after July 1, 1937, it shall be unlawful for any person to buy or sell in this state any vehicle required to be registered hereunder, unless, at the time of delivery thereof there shall pass between the parties such certificate of title with an assignment thereof, as herein provided, and the sale of any vehicle registered under the laws of this state, without the assignment of such certificate of title, shall be fraudulent and void.”
plaintiff cannot maintain the action because the amended petition admits the sale was fraudulent and void and therefore plaintiff is precluded from suing on what amounts to a void contract. He argues that the statute imposes a duty on the purchaser as well as the seller; that it was plaintiff’s duty to ascertain at the time of sale whether the certificate of title tendered by defendant correctly identified the automobile; that the plaintiff is as much to blame for the situation in which he now finds himself as the defendant and that since the sale was fully executed the parties should be left in their present position.
In support of the lower court’s ruling that the amended petition states a cause of action, plaintiff contends that his action is founded in tort for the alleged fraud and deceit of defendant and not on contract, and he agrees with defendant that the sale was fraudulent and void under the statute, but argues it is because of that veiy fact he has suffered damage and is entitled to redress from defendant for his fraudulent and deceitful acts in perpetrating upon him the alleged fraudulent transaction.
Both parties to this lawsuit cite a number of decisions in support of their contentions having to do with fraudulent transactions and rights and obligations arising under the present and former motor vehicle registration acts, but none of them will be discussed for the reason that the factual situation in each is so different from that here under consideration as to be clearly distinguishable or otherwise inapplicable. Both parties rely on our recent decision in Felts v. Sugg, 167 Kan. 488, 207 P. 2d 460, to bolster their contentions, but in our opinion the decision in that case is of very little assistance due to diversity of questions involved.
The allegations of the amended. petition have heretofore been summarized and we will not repeat them here. Other provisions of the statute (G. S. 1947 Supp. 8-135) require that the correct engine number be listed in the certificate of title and, looking at the matter very realistically, the allegations of the amended petition, which for our purposes must be construed liberally in favor of the pleader, mean one thing — that plaintiff cannot furnish his proposed purchaser with a valid certificate of title because he himself does not possess one on account of the alleged fraud by defendant, and therefore he is unable to effect the proposed sale, to his damage. We cannot agree with defendant’s argument that in every case it is necessary for a person who is buying an automobile from a dealer to get under the hood and ascertain if the latter has correctly listed the engine number on the certificate of title passing between the parties, and neither can we agree with defendant’s contention that because a sale of an automobile, such as we have here, is fraudulent and void under the statute, the purchaser would have no recourse against the seller for his alleged fraud. True, the statute says that it shall be unlawful for any person to buy or sell unless the statute is complied with, but to hold that the buyer should be penalized under the facts alleged here would be an unreasonable construction of the statute. We think, at least so far as the facts of this case are concerned, the reference in the statute to the buyer means and refers to one who knowingly purchases an automobile with infirmities in its title.
In conclusion, and without indicating anything which would prejudice either of the parties on the trial of this action, we have no difficulty in holding that the amended petition states a cause of action and that the demurrer thereto was properly overruled.
The judgment of the lower court, both as to the cross-appeal and the principal appeal, is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This case originated in the probate court of Ness county by a petition filed by John F. Nonnast in the estate of his mother, Anna Nonnast, deceased, in which the petitioner alleged that he has a just and valid claim against the estate of Anna Nonnast for services performed by him for Anna Nonnast, decedent, at her request and during her lifetime, and in support thereof alleged:
“That on or about the 28th day of March, 1941, the said Anna Nonnast, deceased, requested the petitioner to live with her on her farm, care for the livestock thereon, and manage and operate said farm for her; that at the same time and as part of said request, the said Anna Nonnast orally promised and agreed with the petitioner to pay him for such services when she became financially able to do so.
“That pursuant to said request and in reliance on said promise to pay him for such services, the petitioner took over the active operation and management of said farm owned by Anna Nonnast, and the care of the livestock thereon, on or about the 28th day of March, 1941, and continued to operate and manage said farm and care for said livestock until the death of Anna Nonnast on November 11, 1947; that said farm consisted of approximately 360 acres of land and improvements located in Ness County, Kansas.
“That the petitioner has never received any payment for the said services by him performed for the said Anna Nonnast and is entitled to have and recover from the assets of the estate of the said Anna Nonnast, deceased, an amount equal to the reasonable value of such services by him performed; that the reasonable value of such services is $7,000.00.”
To this petition the administrator filed an answer, which was a general denial, and one brother and three sisters of the petitioner, heirs at law of Anna Nonnast, filed an answer in which they denied “each and every material allegation in such petition contained,” and “for further answer allege and state that the said John F. Nonnast has been fully paid for all services rendered within three years preceding the filing of his petition, and that any other claim of the said John F. Nonnast is now barred by the statute of limitations.” Without a hearing in the probate court the claim was removed to the district court upon the petition of the claimant, where a trial was had by the court. After hearing the evidence the court made conclusions of fact and of law as follows:
“I. Anna Nonnast during her lifetime was the owner of a quarter of land in Ness County, Kansas. On that quarter was her home and it had about sixty (60) acres in cultivation — -the rest being in pasture. In April, 1944, she inherited a one-half interest in another quarter of land and soon thereafter acquired the other one-half interest of the others in this quarter. It had about eighty (80) acres in cultivation — the other (80) acres being grass land.
‘TI. Anna Nonnast owned no farm machinery but the real estate was farmed by machinery furnished by her sons, Joseph A. Nonnast and Julius Nonnast. She kept about twelve (12) head of milk cows and other cattle on this real estate. Some of these cattle were owned by Julius Nonnast. The milk cows produced about Fifteen Dollars ($15.00) to Twenty Dollars ($20.00) a week income.
“HI. The cultivated land was planted to wheat, barley, and feed.
“IV. In March, 1941, John Nonnast came home and thereafter resided on the farm with his mother until her death on November 11, 1947. He did the usual farm work on the farm — prepared the ground; planted it to wheat, barley and feed; and looked after the cattle. He received as part compensation for his labor, his board and room, part of his clothing, and part of his spending money; but was never paid any wages by his mother during her lifetime.
“V. John Nonnast and his mother, Anna Nonnast, in March, 1941, at the time he returned home, entered into an oral agreement, whereby John agreed to perform the farm work on this farm and his mother agreed to pay him wages for this work.
“VI. The usual and customary wages for the kind and amount of work performed by John Nonnast on the farm was as follows: 1941 — $400.00; 1942 —$500.00; 1943 — $500.00; 1944 — $600.00; 1945 — $700.00; 1946 — $600.00; 1947— $700.00.
“The court further finds as a Conclusion of Law that the claim of John Nonnast should be allowed against the estate of Anna Nonnast, deceased, in the amount of $4,000.00 and for his costs herein accrued.”
The claimant moved to strike out of conclusion of fact No. 4 the statement that claimant received as part compensation for his labors his board and room, part of his clothing and part of his spending money 'upon the ground that there was no evidence to sustain it. It is clear from the evidence that he received his room and board, and there is substantial evidence in the record to the effect that he received a part of his clothing and part of his spending money. The claimant also moved the court to strike out finding No. 6 and to substitute therefor a finding of fact as follows:
“The usual and customary wages, as shown by the undisputed evidence, for the kind and amout of work performed by John Nonnast on the farm was as follows: 1941 — $972.00; 1942 — $1,248.00; 1943 — 11,560.00; 1944 — $1,560.00; 1945 —$1,560.00; 1946 — $1,560.00; 1947, 10 months — $1,300.00, less credit for two months of outside employment at $5.00 per day, $260.00, and to allow his claim in the sum of $7,000.00.”
This request was denied and the court rendered judgment for claimant for $4,000.
No motion for a new trial was filed by the claimant or those op posing the claim. The claimant has appealed from the judgment rendered.
In this court appellant first contends that the court erred in refusing to strike out part of finding No. 4. As we have seen, there was testimony to sustain the finding of the court. More than that, if it was error at all it was a trial error which could be reached only after the filing of a motion for a new trial.
■Appellant next contends that the trial court erred in refusing to make the substituted finding No. 6 as requested. The argument in support of this contention is based upon the rule of law stated in Manufacturing Co. v. Porter, 103 Kan. 84 (3d syl.), 172 Pac. 1018, where it was held:
“Where all the controlling facts to determine a liability are established, and the defense to the liability wholly fails, a new trial is unnecessary, and final judgment on the liability should be ordered.”
It is otherwise stated in Kansas Wheat Growers Ass’n v. Smith, 127 Kan. 267 (syl. 2), 273 Pac. 437:
“Where the jury has by its verdict positively failed to accept the theory of the defendant that there was no liability under a certain contract, and the undisputed evidence shows a definite amount of liability, if any exists, a new trial will be avoided under R. S. 60-3317 and 60-3330 by directing that a judgment be rendered for the definite amount shown by the evidence to be due. . . .”
This rule was followed and applied in Reeves v. Child, 165 Kan. 341, at page 347, 194 P. 2d 919. In support of this rule of law here it is pointed out that the appellees denied the existence of the contract alleged by plaintiff which the court found to have been made. Indeed, there were several witnesses present when the contract as alleged in plaintiff’s petition was made. Appellant contends that if the contract was made the evidence as to the amount due is undisputed. This contention is based upon the testimony of the witness Glen Pemper, which was as follows, after stating his qualifications:
“Lived in Ness County all his life and engaged in farming. Familiar with the prevailing wages paid farm hands from 1941 to the present time. The ordinary and customary wage for a single man in the year 1941 was ‘Four and a half dollars a day and board.’ In 1942 — ‘About the same — around four and a half to five dollars a day. It increased a little.’ In the year 1943 — ‘About five dollars a day.’ In the year 1944 — ‘Five dollars a day. At harvest time it increased up to ten dollars a day.’ In 1945 — ‘Five dollars a day.’ ‘Ten dollars a day at harvest.’ The number of days in a year for harvest was ‘from eighteen to twenty-five.’ In 1946 — ‘Five dollars a day,’ ‘harvest ten dollars a day.’ In 1947 — ‘Five dollars a day — some paid six or seven dollars.’ ‘At harvest time ten to twelve dollars.’ ”
This testimony was not germane to the contract alleged and proved. Appellant made no allegation in his petition that he was hired as a farm hand by the day, nor did he offer any evidence to that effect. It is well known that the wages of a farm hand hired by the day are larger than those of one hired under the terms and for the work the appellant was to do. So it cannot be said here that “the undisputed evidence shows a definite amount of liability.” Indeed, it cannot be said that the requested substituted finding accords with the testimony of the witness unless it can be said that Sundays were not to be counted (although the evidence disclosed that the principal part of his work was to milk an average of ten cows twice a day) and that appellant never assisted in the harvest. We find no specific evidence in the record as to what was the reasonable amount of compensation for the appellant for the work he did. Perhaps the court, who had lived in the county many years, used his own judgment in determining those matters. If the appellees had filed a motion for a new trial in which the question was raised, that the judgment should be reversed because of a lack of evidence to sustain it, we would have difficulty in affirming it. In the brief of appellees it is explained why that position was not taken. But we are not concerned with reasons. They did not object to the judgment in the trial court, and are not objecting to it here. The appellant did not ask for a new trial and apparently does not want one.
We find no error in the record of which the appellant can complain. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action in mandamus for an order commanding defendant to extend a levy of 18.74 mills upon the taxable property of plaintiff in Norton county. After a hearing the trial court denied the writ and plaintiff has appealed.
The basic facts are not in controversy and may be stated as follows: The plaintiff is a joint common-school district of Decatur and Norton counties. Its school building is situated in the city of Norcatur within Decatur county, and most of the territory of the school district is in Decatur county.
There is also situated in Norcatur a joint rural high-school district, the area of which lies in Decatur and Norton counties, which area is wholly within but not as large as the territory of the plaintiff. At its annual meeting in 1949 it appears to have concluded to discontinue the operation of its high school and made no general levy, but it has outstanding bonds and emergency warrants for which a levy to satisfy the same was made.
Norton county has a community high school. That part of the area of the plaintiff lying in Norton county which is not in the territory of the Norcatur rural high school lies within the territory of the Norton county community high school.
The plaintiff school district at its annual meeting in 1949 voted to maintain a grade school and a high school, adopted a budget therefor in the sum of $51,050, voted in favor of a two mills transportation levy, and also under a statute and procedure providing therefor voted to increase the maximum limit of levy by not more than twenty-five percent, and certified the same to the county clerk of Decatur county. The defendant county clerk of Norton county furnished the county clerk of Decatur county the valuation of all the taxable property of the plaintiff school district within Norton county. Plaintiff’s total assessed valuation is $988,609. The county clerk of Decatur county computed the necessary levy upon the taxable property of the school district for general purposes to be 16.74 mills, which together with the two mills for transportation amounted to 18.74 mills, and on September 23, 1949, sent the following certificate to the defendant in a letter which reads:
“I am certifying the following levies for the year 1949:
Gen. Transp. Bd. & Int. Em. Wts. Total
Com. Sch. Jt. 2 D&N................ 16.74 2.00 1.70 3.59 24.02
Norcatur Cem. Dist.....................70
“I received a letter from Mr. Stacey a few days ago, saying he saw no reason for any hesitation on making a levy for the common school only, in the situation of Jt. 2 DN, so I have just made the one levy.
“Before the two schools joined, N. R. H. S. had bonds and emergency warrants to be paid off this year. Therefore the new section to enter the district will not pay on the bond levy or the emergency warrant levy.
“I hope that this is not an impossible situation for you and that everything will work out all right.”
Defendant replied as follows:
“Thanks for the certification of levies for Norcatur schools and Cemetery district.
“As indicated to you in our former correspondence and conversations as far as Norton county is concerned we are still considering Norcatur Rural High and Joint 2 D & N as separate schools for tax purposes for the year of 1949 so it is impossible for me to use the consolidated levy which you have certified. Our stand in this is taken from Section 79-1807, General Statutes of 1935, which provides that all changes in boundary shall take effect for taxation purposes on the last day of Febrúary following such change.
“I am trying to follow as nearly as possible the certification sent and have started out with the maximum levy plus 25% for each school making a starting levy for the NRHS of 7.50 and the Jt. 2 D & N of 10.00. After reducing those levies by the amount of the sales tax to be received we get a levy of 9.24 for the General Fund of Jt. 2 D & N and a levy of 6.42 for the General Fund for NRHS. We have carried the transportation levy against the Grade School which of course makes it operate on the entire territory which wfe have as a part of Jt. 2 D & N. The Emergency Warrant and Bond Levies are carried only for the NRHS territory. . . .”
We turn now to a discussion of the legal question. The plaintiff had ample authority to conduct a high school, prepare a budget, and to have a tax levy therefor. The pertinent statute (G. S. 1947 Supp. 72-1044) reads:
“Every common-school district may establish and maintain public schools at the kindergarten, elementary, junior high school and high-school levels, subject to such limitations as are prescribed by law.”
This authority is not limited by what the Norcatur rural high school did with respect to conducting a high school. Neither does it depend upon what effect such action would have upon the Norton county community high school.
It was conceded in oral argument and in the brief of appellee that the amount of the levy, 18.74 mills, is one that would be authorized by the plaintiff if it conducted a high school.
The trial court found that the county clerk of Decatur county, “in compliance with the provisions of G. S. 79-2931, determined a levy of 18.74 mills upon all of the taxable property within School District No. 2, Norton and Decatur counties, Kansas, was required to raise the budgeted expenditures for said district for the year 1949-’50, and sent to the defendant, the County Clerk of Norton County, Kansas, the certificate of a levy of 18.74 mills for School District No. 2, Norton and Decatur Counties, Kansas, . . . and defendant County Clerk of Norton County, Kansas, received the same.”
Counsel for appellee contend that he had no official knowledge at any time that the plaintiff was conducting a high school. It is true neither the plaintiff’s clerk nor the county clerk of Decatur county certified that specific fact to him. We are cited to no statute, and our own search discloses none, requiring such a form of certificate. It is conceded defendant had actual knowledge of the fact by a letter from the state superintendent of public instruction addressed to the county superintendent of Norton county and shown to defendant, also by his correspondence and discussions from time to time with the county clerk of Decatur county. Under these circumstances that there was no official certificate of that fact sent to him we regard as being unimportant.
Counsel for appellee argue that plaintiff’s budget should have been, certified to defendant so that he and the county clerk of Decatur county together could determine the necessary levy. It is conceded there is no statute which requires the clerk of a joint common-school district to certify the budget to the county clerk of each of the counties in which the school district has territory. However, counsel for appellee point out that G. S. 1935, 72-3508, pertaining to joint rural high-school districts does contain such a requirement. The fact that the legislature made such a requirement for joint rural high-school districts but did not make one for joint common-school districts tends to indicate that the legislature thought there was a reason for a difference and made it knowingly. ' Hence, we are not justified in holding that G. S. 1935, 72-3508 should be applied to joint comm on - school districts.
Counsel for appellee contend the certificate dated September 23, 1949, sent by the county clerk of Decatur county to the defendant is not a legal certificate. It may be conceded that the form is not a model one, but defendant had no difficulty in understanding from it that the levy of 16.74 mills for the general fund and 2.00 mills for transportation should be extended on all the property within the plaintiff district, and that the 1.70 mills for bonds and interest and 3.59 mills for emergency warrants should be extended upon the property of the Norcatur rural high-school district which lies within the plaintiff’s district. Although defendant understood it he did not attempt to follow it. He attempted to give the Norcatur rural high-school district a levy for the general fund for which he had received no certificate or information from anyone. In fact the record discloses that the Norcatur rural high-school district did not levy any budget for a general fund. Also, he undertook to compute a levy for the plaintiff district without having its budget and without paying any attention to the computation of a levy made by the county clerk of Decatur county. These acts were legally unjustified.
Our statute (G. S. 1935, 72-2501) establishing community high schools in certain counties provides that the territory of such high schools “shall include all the territory in said counties not included in the territory of other accredited high schools.” Apparently defendant took the view that when plaintiff started a high school in its territory the boundaries of the Norton county community high school were changed as a matter of law. Defendant also gave thought to G. S. 1935, 79-1807, which, shortly stated, provides that the changes in the boundaries of the school district should take effect for taxation purposes on the last day of the February following, and concluded that the high-school taxes of plaintiff should not be extended to that part of.its territory in Norton county which had been in the territory of the Norton county community high school. It appears these views prompted the action taken by defendant in his interpretation of the certificate made to him by the county clerk of Decatur county.
In this case we are not authorized to determine whether there have been any changes in the boundaries of the Norton county community high-school district. In fact, that question could be determined only in an action brought in the name of the state by the county attorney or attorney general to determine that question.
The trial court held: “79-1807, G. S. Kan. 1935, does not apply to the facts of this case.” There has been no cross-appeal, hence that question is not before us. We think it not out of place to say, however, that the attorney general, in a letter addressed to the state superintendent of public instruction, copies of which have been furnished to the court and to counsel in this action, expressed the view that the act of plaintiff in establishing a high school applicable to all of its territory did have the effect of taking any territory therein of the Norton county community high school out of that community high-school district, and further expressed the view that G. S. 1935, 79-1807, “is not applicable and the levy should be extended for this year over the entire territory of the Joint Common School District No. 2 and not wait until after the end of February, 1950.”
Our conclusion is that the tax levy of 18.74 mills for the plaintiff district, certified to defendant by the county clerk of Decatur county, should be extended on the tax rolls of all the property in plaintiff’s district lying in Norton county, and that defendant should also extend the bonded interest levy of 1.70 mills and the emergency warrant of 3.59 mills upon the property in Norton county which was within the territory of the Norcatur rural high-school district.
Counsel have cited quite a number of authorities, all of which we have examined. We find nothing in any of them which conflicts with the conclusions here reached, but because the parties desire an early decision we do not take time to analyze them here.
The judgment of the trial court should be reversed with directions to grant the writ as prayed for. It is so ordered. | [
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The opinion of the court was delivered by
Parker, J.:
This is the aftermath of a divorce action. The appeal in case No. 37,619 is from an order of the district court of Shawnee county overruling a motion to revive an alleged judgment for child support, while case No. 37,667 involves an appeal from an order of the same tribunal adjudging the defendant in the divorce action not guilty of willful contempt of court in having failed to make all the monthly payments of alimony and child support money required by the terms of the divorce decree. The two appeals have been consolidated and hereafter will be so treated.
The basic pertinent facts, except as they relate to the ability of appellee, who was the defendant in the court below, to make the payments in question, are not in controversy. They-are, however, important to a review of all issues involved and for that reason will be stated as briefly as possible.
The parties were divorced by a decree of the district court of Shawnee county on March 3, 1936. The appellant here was the plaintiff in that action. She was given all of the property belonging to the parties with the exception of. a mortgaged automobile and was awarded permanent alimony in the sum of $1,500 payable at the rate of $17.50 on the 5th and 20th of each month commencing March 20, 193.6, such payments to cease forthwith in event of her death or remarriage. She was also given the custody of the two minor children of the parties. The appellee was directed, subject to further orders of the court, to pay $25 on the 5th and 20th of each month for the support of such children. By express terms of the decree all payments were to be made to the clerk of the district court.
From the record we are able to ascertain, and here note, the manner in which appellee complied with the requirements of the decree. From May 4, 1936, to January 1, 1938, twenty-three payments, ranging from $17.50 to $42.50 were paid to the clerk of the court. From February 5,1938, to May 5,1938, seven payments, one for $20 and six for $42.50, each was paid directly to the appellant. Between December 16, 1938, and May 21, 1948, appellee paid the clerk ninety-two payments, most of them being for $35 although it should perhaps be stated that one was as low as $7.50 while another was as high as $70.
The foregoing payments are all credited to appellee on the clerk of the court’s alimony docket. In addition, the parties have stipulated that from 1937 to 1943 appellee paid $345.50 to appellant personally. Appellant likewise admits that three payments of $42.50 each were made by appellee in 1936 and were received by her from the clerk of the court even though they are not shown on that ofBcial’s record. Neither the alimony docket nor the stipulation, or for that matter the evidence, make it clear how the payments heretofore described amounting to $4,353 were to be applied. At one point in the record appellant states they were paid on the order and judgment for alimony and child support. However, in a later statement she asserts appellee was in default $1,700 on payments of child support accruing from October 15, 1943, to the date of the filing of the contempt accusation on October 15, 1948, and concedes that he had paid $1,300 on that account during such period of time. She is bound by that concession. Therefore, since they antedate the contempt proceeding, we proceed on the assumption that all payments made subsequent to October 15, 1943, must be regarded as having been paid on the order for child support.
It likewise appears from the record that for twelve years after the divorce decree was rendered in 1936 the appellant took no legal steps to enforce payment of the alimony judgment nor payment of the full amount of the child support order and that the first attempt of that character ever made by her was through the issuance of an execution dated September 10, 1948, directed to the sheriff of Saline county, Kansas, and later returned unsatisfied, for satisfaction of a judgment therein alleged to have been entered on March 3, 1936, in the sum of $4,822, which sum obviously included all alimony and child support payments claimed by her to be due under terms of the divorce decree up to the date of the issuance of such process.
On September 24, 1948, appellant filed a motion in the original divorce action to revive the judgment which reads as follows:
“Comes now the plaintiff above named and moves the court for an order reviving judgment for the child support payments which became due on the fifth and twentieth days of each month, in amounts of Twenty Five Dollars ($25.00) on each of the said days of each month, between October 5, 1941, and September 20, 1943, inclusive, according to the terms of this court’s judgment entered on March 3, 1936.”
As has been previously indicated the overruling of this motion is one of the matters now subject to appellate review.
Following the trial court’s action on the motion to revive appellant instituted the contempt proceeding. The accusation reads:
“Comes now Emily L. Haynes, plaintiff in the above entitled action, and charges that the defendant, Floyd Y. Haynes, has knowingly disobeyed and violated the orders of this court in the following respects, to wit:
“1. That on the 3rd day of March, 1936, the court rendered judgment against the defendant in the above entitled action and ordered him to pay the sum of Fifteen Hundred Dollars ($1500.00) permanent alimony, and the sum of Fifty Dollars ($50.00) per month as child support money.
“2. That the said defendant was present at the trial of the cause, was represented by an attorney, and had actual knowledge of the judgment of the court and was familiar with the contents thereof.
“3. That said order has not been reversed, modified, or set aside, but has been at all times since last mentioned date, and still is, in full force and effect.
“4. That notwithstanding the premises, the said defendant, Floyd Y. Haynes, has knowingly, willfully, and contemptuously refused to obey the same and has failed to make the payments as ordered by the court.
“5. That a dispute now exists as to the amount which the defendant is in arrears in payments of alimony and child support money which are due to the plaintiff, and that the court should determine the amount due.
“6. That by reason of the failure of the said defendant to obey said order of the court, the authority of the court and respect to the court has been impaired, and the plaintiff has been put to inconvenience and has suffered the expense of bringing this action and' employing cousel for the same.
“Wherefore, plaintiff prays that said defendant be adjudged guilty of indirect contempt of court and punished in such manner as may seem proper to the court, and that the court determine the exact amount due and owing from the defendant to the plaintiff; and that the defendant be ordered to pay the costs of this action, including attorneys’ fees for the plaintiff’s attorneys.”
Shortly after appellee appeared in court to answer the contempt accusation his counsel dictated the following answer into the record:
“Comes now Floyd Y. Haynes, the defendant in the above entitled case and for his answer to the accusation filed herein denies each and every allegation therein contained. That said defendant denies that he is guilty of willful contempt of court as charged in said accusation. That no execution was issued on the judgment set forth in said accusation prior to September 11, 1948; that all sums due under the judgment of March 3, 1936, are barred by the statute of limitations other than any amount remaining due and unpaid for five years from this date.
“Wherefore defendant prays that he be discharged.”
During the contempt hearing counsel for appellant requested that the court determine the amount due and owing from appellee for support money under the divorce decree and that when it was determined he be directed to pay it or that she be given judgment therefore as of that date. This request was denied. The court then proceeded with the trial on the contempt proceeding proper. After hearing the evidence and arguments of counsel it found appellee not guilty of contempt. Thereupon, appellant filed a motion for a new trial which was overruled. She then perfected her second appeal challenging the propriety of the rulings of the district court on the two matters last mentioned.
From a letter addressed to counsel for the parties, and included in the record, it is apparent the trial court’s reasons for overruling the motion to revive the judgment were twofold. First, that under the provisions of G. S. 1935, 60-1510, courts are given absolute control over their child support orders. Second, that such orders are not final unless reduced to judgment and until then they are only enforceable by attachment of the person — in this case the husband. The basic premise on which the first reason depends is only partially correct. Under our decisions (Davis v. Davis, 145 Kan. 282, 65 P. 2d 562; Wilkinson v. Wilkinson, 147 Kan. 485, 77 P. 2d 946; Teegarden v. Teegarden, 155 Kan. 195, 124 P. 2d 464; Trunkey v. Johnson, 154 Kan. 725, 730, 121 P. 2d 427; Sharp v. Sharp, infra), the rule that courts lack power to change or modify past-due installments for the support and education of minor children is now well established. We are constrained to hold the second reason is founded upon an entirely erroneous conception of existing law. This conclusion, of course, requires elucidation. At the outset it should be stated the trial court’s theory with respect to the point now to be considered is not without sound legal support. In the letter to which we have referred the district judge cited and relied on Scott v. Scott, 80 Kan. 489, 103 Pac. 1005, and McGill v. McGill, 101 Kan. 324, 166 Pac. 501. Both cases support his position. It may be added that in another case, Beasley v. Salkeld, 131 Kan. 211, 289 Pac. 471, we held a decree for the support and maintenance of minor children, payable in monthly installments, without a provision making the installments a lien, is not a lien on real estate nor enforceable in an action in the nature of a creditor’s bill. In that opinion we cited the Scott case with approval, quoted from it at length, and in effect stated that since the decree failed.to and did not intend to give a lien it did not have all the attributes of a final judgment, was not enforceable on execution and, that in such a situation, the proper remedy was by a proceeding in contempt.
Notwithstanding what is said and held in the foregoing decisions, to the effect child support orders were not final in character and therefore not subject to execution, we think it was repudiated in our later decisions and can no longer be regarded as the law of this state. Nothing would be gained by explaining the reasons for the change in viewpoint on the subject or in attempting to reconcile the decisions. It suffices to say that commencing with Sharp v. Sharp, 154 Kan. 175, 117 P. 2d 561, this court in clear and unequivocal language announced the rule that installments, decreed in a divorce action, for support and education of the minor children of a marriage, when due and unpaid, become final judgments which may be collected as other judgments and that the statute of limitations begins to run on each of such installments from the period fixed for the payment thereof as it became due. Indicating the reasons for its conclusion this court, in the opinion, said that inasmuch as courts do not have power to modify or change such past due installments it was convinced they could be collected by suit, judgment and execution, the same as past due unpaid alimony installments or other judgments.
While alimony payments are not involved in our consideration of the rights of the parties under the motion to revive the judgment it is interesting, in view of the statement made in the Sharp case, to note that under our decisions installments of that nature are held to be final in character and that a provision in a degree ordering them to be paid in periodical payments does not destroy their finality nor keep them from being enforced in the same manner as ordinary judgments. (See Bassett v. Waters, 103 Kan. 853, 176 Pac. 663; Stoner v. Stoner, 134 Kan. 356, 5 P. 2d 847; Bourman v. Bourman, 155 Kan. 602, 127 P. 2d 464.)
The decision in Sharp v. Sharp, supra, was promptly reaffirmed in two subsequent decisions and so far as our research has been able to disclose has never disapproved.
In Trunkey v. Johnson, 154 Kan. 725, 730, 121 P. 2d 247, we said:
“Likewise it is well settled in this state the district court has power to modify or change any order for the support of minor children, whenever circumstances require, but that it has no power to increase or decrease amounts past due (Davis v. Davis, 145 Kan. 282, 65 P. 2d 562), and that installments when due and unpaid become final judgments and may be collected as other judgments (Sharp v. Sharp, 154 Kan. 175, 117 P. 2d 561). It would seem by analogy that if the court possessed such power, there would no finality of judgment and no cause of action as to any installment to come due in the future until it was matured by passage of time. The relation of debtor and creditor would not exist.” (p. 730.)
To the same effect is Anderson v. Anderson, 155 Kan. 69, 123 P. 2d 315, where each of the two cases last mentioned is cited in support of a statement that under the law of this state child support installments when due and unpaid become final judgments.
We are convinced the rule announced in our more recent decisions should not be disturbed. Therefore the trial court erred in holding the unpaid installments in the instant case were not final judgments and in refusing to ascertain whether their status was such that they could be revived as dormant judgments under the provisions of G. S. 1935, 60-3221.
The conclusion just announced does not, of course, do away with the concurrent remedy of enforcement by attachment of the person. See Trunkey v. Johnson, 156 Kan. 804, 807, 137 P. 2d 186, where it is said the usual way of enforcing child support orders is by attachment of the person of the husband.
Thus we come to the contempt phase of this appeal which all parties concede was properly instituted under authority of the provisions of G. S. 1935, 20-1201 to 1207, inclusive.
Appellant insists the trial court erred in that proceeding in refusing to determine the total sum owed by the appellee on the child support money order and in failing to render judgment against appellee for its amount.
In view of our conclusion on the motion to revive it seems to us the simple answer to this contention is that appellant already had a judgment on which she could easily compute the amount due, or claimed by her to be due, and that the trial court was under no obligation to do so. This rule is especially applicable where — as here —appellee not only was conceding he was in arrears on payments but the parties had agreed, if in fact they had not in efi-.t stipulated, as to amounts that had been paid.
However, there is another reason why this particular contention is devoid of merit. In this jurisdiction contempt proceedings are regulated by statute and are summary in character (State v. Cutler, 13 Kan. 131). Like in other proceedings of that nature (see Gunter v. Eiznhamer, 165 Kan. 510, 196 P. 2d 177; Bell v. Dennis, 158 Kan. 35, 36, 144 P. 2d 938), a party seeking to invoke the remedy must bring himself clearly within the provisions of the law and is only entitled to the relief therein authorized. So far as we are able to discern the only question before the court in such a proceeding is whether, under allegations of the accusation which must (G. S. 1935, 20-1204) clearly and succinctly set forth the facts relied on to constitute contempt, the accused is guilty as charged. True enough, on the hearing of an accusation, the court may take into account any and all matters necessary to enable it to determine that question, including the sum total of payments due and unpaid where the charge is failure to comply with an order for child support. But it is not required to make a finding as to the amount of those payments, let alone render another judgment for them. It follows the court did not err in restricting its decision in the instant contempt proceeding to the guilt or innocence of the appellee.
Finally, as appellant contends, must it be held that the trial court erred in refusing to find appellee guilty of contempt? We are not disposed to labor the evidence. It should be said counsel for appellant frankly stated in open court that what his client wanted was the money due and that she was not asking that he be put in jail. The trial court heard the testimony and had an opportunity to see the witnesses. At the end of the trial it stated that under the evidence the appellee was not a money-maker, never had been, and was unable to support himself and also make the payments. It then pointed out that in its opinion appellee had shown no disposition to willfully violate its orders and said:
“The picture is plain to me, here is a man that has been in business, like many businesses, for some reason I don’t know why, they have gone on the rocks, the partnership was involved and his business is wound up and there isn’t much left for anybody. A man of his age without a job, without any business, there isn’t a very bright outlook, on the future without the Court imposing any penalties upon him. I just feel that this is a case where it is for the best interests of the son and the mother and of the father, for all of them, that the defendant be discharged on his promise to make these payments in the future to the best of his ability and if the facts warrant it, the matter can again be called to the Court’s attention later on.
“The defendant is discharged with the understanding that he make the payments that he has agreed to make.”
It must be remembered that by the very nature of a contempt proceeding the decision of guilt or innocence of an accused rests in the sound discretion of the trial court before whom the matter is pending. One reason why this rule is peculiarly applicable in such proceedings is that orders'therein made are not final and conclusive but are always subject to reconsideration on the filing of subsequent accusations. It must, likewise, be kept in mind that when a trial court has exercised that discretion and its decision has been challenged by appeal the sole duty of the appellate court is to determine whether the record reveals such an abuse of discretion as to warrant a reversal of its action. This is true even though the appellate court might have rendered a contrary decision under the evidence if it had been sitting in judgment.
Under the circumstances and conditions heretofore related, conceding as we must that the record discloses some testimony to sustain the trial court’s factual conclusions and its ultimate decision, we cannot say its action in finding the appellee should be discharged and in holding him not guilty of contempt warrants a reversal of the judgment.
In view of the conclusions heretofore announced the judgment in Case No. 37,619 must be reversed and the judgment in Case No. 37,667 affirmed.
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The opinion of the court was delivered by
Harvey, C. J.:
The appeal here is from an order of the district court sustaining the demurrers of the respective appellees to the fifth amended petition and bill of particulars of the appellant.
The pertinent facts necessary to a determination of the correctness of the ruling of the trial court may be stated as follows; On February 22, 1942, Anna Bouska, a resident of Republic county, died, leaving a will, which was duly admitted to probate on March 3, 1942, and Tony W. Bouska, a brother of decedent, was named as executor. He duly qualified as such and later filed an inventory of the property of her estate, which was appraised at $18,003.45. On December 4, 1942, Joseph J. Bouska, a brother of the decedent, as next friend of and for Sophia Bouska, a sister, an incompetent person, but not so adjudged and for whom no legal guardian had been appointed, filed in the probate court in the estate of Anna Bouska, a petition in which it was alleged in substance that the property inventoried in Anna’s estate was a part of the property that she and Anna owned as joint tenants with the right of survivorship, and that she was entitled to all of it; and further alleged that part of the property constituting the joint estate had been taken possession of by her brother, Tony W. Bouska, and was now claimed as his own, and that another brother, George F. Bouska, was indebted to the joint estate but disclaimed liability; that the amount of the property of the joint estate held by her brothers, or the amount of the indebtedness which they owed was unknown, and asked that they be required to account for all such property and indebtedness, and that the petitioner be decreed the owner of all of it. The court gave notice of a hearing upon this petition to the executor and to Tony W. Bouska and George F. Bouska. On the day set for the hearing the executor demurred on the ground the court was without jurisdiction, and Tony W. and George F. Bouska moved to quash the service of notice upon them upon the ground the court had no jurisdiction of the subject matter of the petition so far as it applied to them individually. The court took those matters under advisement and on April 10, 1943, the court concluded it did not have jurisdiction necessary to a full determination of the questions involved and referred the matter to the district court. Apparently this was done upon the court’s own motion and under the authority of G. S. 1947 Supp. 59-2402. No one complained of this order. We shall hereafter refer to the petitioner as plaintiff and to the appellees here as defendants, unless it is necessary to refer to them separately. In the district court the defendants filed a special appearance and motion to quash, whereupon plaintiff filed an amended and supplemental petition on June 5, 1943, and on June 9 the defendants filed a motion for an order requiring plaintiff to separately state and number her causes of action. This motion was sustained and plaintiff filed an amended petition. To this defendants, on September 2, 1943, filed a motion to make definite and certain and to strike certain portions of the amended petition. This motion was overruled in part and sustained in part and plaintiff was directed to recast her amended petition in harmony with the ruling within twenty days. On December 16, 1943, plaintiff filed a second amended petition. To this defendants, on February 7, 1944, moved to strike certain designated portions of the amended petition and to make it more definite and certain in certain particulars. This motion was sustained in part and overruled in part and plaintiff was given five days to amend and defendants twenty days to plead. Plaintiff filed an amendment to the second amended petition on February 21, 1944, and on March 16, 1944, the defendants demurred thereto upon seven grounds, which they stated. On April 26, 1944, the demurrers were heard and defendants requested the court to construe the bills of sale set up in the second amended petition. The court overruled the demurrers and construed the bills of sale and “holds that the one made by Joseph Bouska and set out in the said second amended petition, does not create a joint tenancy in the wife of the said Joseph Bouska and his daughters, Anna Bouska and Sophia Bouska; also the court holds that the bill of sale set forth in the amendment to the said second amended petition does not create a joint tenancy in Anna Bouska. and Sophia Bouska.” The ruling of the trial court interpreting these bills of sale was appealed to this court and an opinion written (see Bouska v. Bouska, 159 Kan. 276, 153 P. 2d 923) in which the judgment of the trial court construing the bills of sale was affirmed, that being the only question presented to this court. There has been no appeal by the defendants from the order of the court overruling their demurrer to the second amended petition, and because thereof this court expressed the view “that the second amended petition, with the two instruments attached, stated a cause of action for some relief.” Perhaps this was not within the purview of the questions submitted to the court, but we pass that thought as being no longer material. Our decision was rendered in December, 1944, and our mandate went down on January 2, 1945. Whereupon the defendants, on February 17, 1945, filed a motion that plaintiff be required to recast her amended petition, to omit all allegations concerning her ownership by reason of being the survivor in joint tenancy, and in other specific particulars. This motion came on for hearing on April 24, 1945. The pertinent portion of the journal entry reads:
“Thereupon the said defendants present their motion to require the plaintiff to recast his second amended petition and after argument of counsel and consideration of such motion by the court:
“It is ordered by the court that the plaintiff recast said petition and amend the same so as to state in separate causes of action a single definite theory upon which the plaintiff seeks to recover as to each class of property involved.
“It is further ordered that such amended petition include allegations showing the time and manner of the creation of agency and trust relationships, so as to fairly apprise defendants of the nature of such claims; and also as to the repudiation of such claimed trust.”
On May 1,1945, plaintiff filed a third amended petition. Defendants, on May 21, 1945, moved to strike the third amended petition because it was not in compliance with the order the court made and entered on April 14, 1945, in that it did not state in separate causes of action a single definite theory on which the plaintiff sought to recover, and in the alternative if its third amended petition was not stricken for an order directing plaintiff to file an amended petition in compliance with the order of the court of April 14, 1945. On the same date there was filed a motion to require plaintiff to separately state and number and a motion to elect. These motions were heard on June 30, 1945. The court overruled the motion to strike the third amended petition from the files, but found “that the third amended petition does not comply with the order of this court heretofore made on April 14, 1945, and it is by the court ordered that plaintiff file an amended petition, which does comply with such order.” On July 26, 1945, the plaintiff filed a fourth amended petition. On August 16,1945, defendants filed a motion to strike definite portions from the fourth amended petition for reasons stated in the motion, and on the same date filed a separate motion that plaintiff make her fourth amended petition more definite and certain in four specific particulars. On November 27, 1945, plaintiff asked permission to amend the fourth amended petition in certain specific respects. On December 7, 1945, the court allowed plaintiff’s written motion to amend her fourth amended petition and consider it as amended, in view of which it was held not to be necessary for the court to pass upon defendants’ motion which had been addressed to the fourth amended petition, but defendants were given further time to plead. On January 29, 1946, plaintiff filed her fifth amended petition. To this the defendant filed a motion to make the fifth amended petition more specific, definite and certain in twenty-three specific particulars, stated in separate paragraphs, and also filed a motion directed against the fifth amended petition as follows:
“1. That the plaintiff be required to recast and file an amended petition setting forth his cause or causes of action in ordinary and concise language as required by the Code of Civil Procedure.
“2. By stating in separate causes of action a single and definite theory upon which the plaintiff seeks to recover as to each class of property involved as required by order of this court on April 14, 1945.
“3. By confining the allegations of such amended petition to such facts as are claimed to establish a cause or causes of action as against only Tony W. Bouska, executor of the Last Will of Anna Bouska, deceased.
“4. By eliminating from said amended petition all allegations, averments and statements, which are claimed to constitute any cause of action against Tony W. Bouska or George F. Bouska as individuals.”
These motions came on to be heard April 30, 1946, and were argued by counsel.
“Whereupon, the court finds that in addition to the original petition there have been five amended petitions filed in this action, and that the fifth amended petition does not comply with the order made by this court on April 14, 1945; that it does not state the causes of action in ordinary concise language, so required by the Civil Code, and that it is also open to the charge of a confusion of theories in the various causes of action.
“Whereupon, the court inquires of counsel for the plaintiff as to his position concerning whether he did plead his causes of action as concisely as he was able to do.
“Whereupon, counsel for the plaintiff states that he does not wish to undertake to correct or make any change in the petition and that he is satisfied with the fifth amended petition in its present form. All as appears from transcript on file.
“Whereupon, the court for the reasons above stated overrules said motion.”
On October 27, 1947, plaintiff filed what she denominated a “Bill of Particulars to Fifth Amended Petition.” This was a document covering fifteen pages of the printed abstract, in which plaintiff attempted to enlarge and particularize the allegations of her amended petition in respect to each of the grounds upon which defendants had asked that it be amended. Thereafter Tony W. Bouska, as executor, demurred to the fifth amended petition, “as amended, if amended, by plaintiff’s Bill of Particulars” upon seven grounds stated in separate paragraphs, and Tony W. Bouska, as an individual, and George F. Bouska filed separate demurrers upon the same ground. These demurrers were sustained. In doing so the court filed the following memorandum:
“It is with considerable reluctance that I reach the conclusion I do reach upon the demurrers interposed by defendants in this action. The defendants urge the rule expounded in Grentner v. Fehrenschield, 64 Kan. 564, and expanded in later cases such as Sluss v. Brown-Crummer, 137 Kan. 847, and Munger v. Beiderwell, 155 Kan. 187, to the effect that:
“If the petition is not drawn upon a single and definite theory, or there is such a confusion of theories alleged that the court cannot determine from the general scope of the petition upon which of several theories a recovery is sought, it is insufficient.’ (Sluss v. Brown-Crummer, 847, l. c. 854.)
“I have never regarded this doctrine with favor, having always felt that it was in a sense, an illegitimate offspring of the nuisance theory. I have always felt that if the court could possibly evolve from the petition a theory upon which a plaintiff might recover, plaintiff ought to be permitted to try it, disregarding any difficulties which the situation might present to a court regarding admission of evidence and the like; in other words, the court should sit for the purpose of hearing the controversies arising in its jurisdiction and not seek excuses or pretense to avoid their determination.
“Sustaining a demurrer upon these grounds, it has always seemed to me to be an admission of inadequacy, something I am reluctant to publicly admit.
“However, in this case, I feel no other course is open. These demurrers are lodged against the fifth amended petition, supplemented with a bill of particulars, which makes a total of seven attempts on the part of the plaintiff to state a cause of action, implemented by sundry motions looking toward that end from defendants. Even the most casual perusal of these various petitions will disclose not only a confusion, but even a complete shifting of theories from one to the other. I will not attempt an analysis to demonstrate this. They speak for themselves.
“There are some other objections urged against plaintiff’s right to recover in this action which have been considered, but in view of the conclusion reached on the proposition heretofore discussed, it will not be necessary to examine them further.”
We shall not attempt to quote nor summarize and comment upon the various pleadings filed by plaintiff. To do so would extend this opinion unduly without beneficial results to anyone. We have read with care the pleadings, the objections thereto and the rulings of the trial court thereon, and also the briefs of counsel. Notwithstanding our ruling on the former appeal (159 Kan. 276, 153 P. 2d 923), plaintiff has continued to claim under the theory of joint tenancy, commingled with the theory of tenancy in common, interlarded with general allegations as to agency, trusts and undue enrichment, with much prolixity and with the absence of issuable facts. The result is that no cause of action has been stated on any theory when tested by our statute (G. S. 1935, 60-704, second.) It seems clear that when diligent, resourceful counsel, over a period of about seven years, earnestly endeavors to state facts constituting a cause of action upon some ground and is unable to do so, the court is justified in concluding that no such facts exist.
We find no error in the record. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Arn, J.:
On January 27,1948, a permanent injunction was issued against the property located at 116 S. Monroe Street, Topeka, Kan., (also described by full legal description) enjoining Sam Coleman and the other defendants and all other persons from maintaining a liquor nuisance thereon. That judgment, docketed in the district court of Shawnee county as case No. 66,203, is final and has not been vacated or modified. Subsequently, the county attorney of Shawnee county was informed that the liquor nuisance was continuing and that a sale of liquor was made upon said premises on March 11, 1949, by the defendant Sam Coleman. Thereupon the county attorney commenced two separate proceedings arising out of and as a part of the aforesaid case No. 66,203. The first proceeding was one in contempt against Sam Coleman to punish him for a willful violation of the injunction, and the second a proceeding for abatement of the nuisance.
After a full hearing upon the contempt proceeding at which the defendant offered no evidence, the trial court on March 18, 1949, found Sam Coleman guilty of violating the terms of the permanent injunction and sentenced him to sixty days in jail and a fine of $200 and costs. Coleman’s appeal from that judgment has been docketed here as case No. 37,728.
In the proceeding for abatement of the nuisance, the county attorney included in the “Motion for Abatement” a request for a padlock order. One Mattie Watson, an appellant here, was per mitted to intervene and to file an answer. Her answer alleged that she is now the owner of the premises at 116 S. Monroe Street, having purchased the same on March 22, 1948, from Sam Coleman, the appellant herein. She further alleged that she had no knowledge of any law violation at or upon said premises and did not sanction such violations thereon. A trial was had in this abatement proceeding, and the district court found that the permanent injunction of January 27, 1948, had been violated; that Mattie Watson knew of the issuance of said permanent injunction and had notice thereof at the time she obtained the deed to the 116 S. Monroe Street property; that she had a duty to see that said permanent injunction was not violated; and that in order to protect the judgment of the court and to prevenií a further violation thereof, a writ of abatement and padlock order should issue. Such writ and order were issued on March 22, 1949, and Mattie Watson and Sam Coleman have appealed. That appeal is here as case No. 37,731, and has been consolidated with the aforementioned appeal of Sam Coleman from the order punishing him for contempt.
Appellants contend first that the judgments of the trial court in both the proceeding to punish for contempt and the proceeding for abatement of the nuisance were contrary to the evidence. There was evidence of a sale of whisky by Sam Coleman at the premises in question on March 11, 1949. The evidence disclosed that defendant Coleman himself received payment for the bottle of whisky by a marked bill and returned the change to the purchaser. The defendant was not a licensed retail liquor dealer under chapter 242, Laws 1949, which had become effective on March 9, 1949. It was conceded that Mattie Watson became the record owner of the premises on March 22,1948, by a warranty deed from Sam Coleman, her nephew. It will suffice to say that we have examined the record and there was sufficient evidence to support the findings, judgments and orders made by the trial court in both proceedings. The purchase of the premises by Mattie Watson after the issuance of the permanent injunction thereon had no 'effect upon such permanent injunction which forbade the maintenance of a liquor nuisance. That permanent injunction of January 27, 1948, was in effect an encumbrance upon the use of the property which runs with the land and which is binding upon everyone who then had or thereafter might have any interest in it — and irrespective of their want of notice that the premises had been adjudicated to be a nuisance. (State v. Porter, 76 Kan. 411, 91 Pac. 1073; State v. Richardson, 128 Kan. 627, 631, 278 Pac. 752; State, ex rel., v. Ramsey, 151 Kan. 764, 767, 100 P. 2d 637.) For a further discussion of this rule as well as a contray rule existing in some other jurisdictions, see notes in 15 A. L. R. 386-401.
Most of chapter 21, article 21, G. S. 1935, as amended, pertaining to intoxicating liquors, was repealed by the liquor control act (ch. 242, L. 1949), which became effective upon its publication in the official state paper on March 9, 1949. The appellants contend, therefore, that with such repeal, and particularly by the repeal of sections 21-2131 and 2132, G. S. 1935 (proceedings to abate a nuisance and for injunction, penalties, and enforcement) the trial court was without jurisdiction in these instant proceedings. It is true that said sections 21-2131 and 21-2132 provide a procedure for abating and enjoining liquor nuisances, punishing a violation of such injunctions and enforcing them by padlock order or such measures as the court may deem expedient. Those sections were repealed as of March 9, 1949, and the alleged illegal sale which was the basis for these instant proceedings was made two days later — on March 11, 1949. But independent of statute, our district courts have an inherent power to punish for contempt of court and to make such reasonable orders as are necessary to protect and preserve their judgments. (State v. Marshall, 95 Kan. 628, 630, 148 Pac. 675; In re Hanson, 80 Kan. 783 [Syl. ¶ 1], 105 Pac. 694; In re Gambrell, 161 Kan. 4, 7, 165 P. 2d 760.) It is also suggested that other statutes grant authority for the proceedings instituted here (secs. 20-1204, 60-1121, G. S. 1935; State v. Rabinowitz, 85 Kan. 841, 118 Pac. 1040).
The permanent injunction of January 27, 1948, enjoined all persons from violating or permitting the violation of the liquor laws at 116 S. Monroe Street. A sale of liquor by any person other than a regularly licensed dealer was just as much a violation under the new law as under the old bone dry law. Such a sale was just as illegal on March 11, 1949, as it was prior to March 9, 1949. Furthermore, the legislature in enacting the liquor control act (ch. 242, L. 1949) anticipated there would be orders, judgments and decrees from previously pending cases such as the permanent injunction issued herein on January 27, 1948, and the repealing clause (sec. 115 of said ch. 242) was made to provide:
“That this repeal shall in. no wise affect any . . . order, judgment, decree ... or proceeding made, entered or had under any of the provisions of the sections repealed, nor shall this repeal in anywise affect any criminal prosecution heretofore commenced, or any fine, penalty, forfeiture or punishment for any felony, misdemeanor or offenses committed before the taking effect of this act, prosecution for which shall be carried on and continued in the manner provided by law, the same as if this repeal had not been made. . . .”
The obvious effect of this section 115, as applied to this case, is to provide that the permanent injunction of January 27, 1948, shall not be affected by the repeal of March 9, 1949. The general purpose of section 115 was to provide for an orderly transition from one procedure to another without affecting existing judgments, decrees and orders made by the courts in liquor cases. The new liquor law also provides that any premises where liquors are kept for sale or sold in violation of law, constitute a common nuisance (sec. 94); and provision is made for temporary and permanent injunction, abatement and padlock (sec. 95). In fact, the new liquor control act makes a padlock order mandatory upon the issuance of an injunction without waiting for a violation of the injunction as under the former law.
The provisions of the old law and the new one with reference to injunctions, abatement and padlock are basically the same. When that situation prevails, it is the expressed intention of the legislature of this state to treat a new statute as a continuation of the old one whenever possible. Such rule of construction is stated in section 77-201, G. S. 1935, as follows:
“The repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed. The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.”
The foregoing section of the statutes applies to criminal cases (In re Schneck, 78 Kan. 207, 209, 96 Pac. 43).
As we have said, the trial court had jurisdiction in the instant case to punish for contempt and to issue the padlock order independent of chapter 21, article 21, G. S. 1935, because of other statutes and because of the inherent powers of the court — and it also had such jurisdiction because the saving clause in section 115 of the new law contemplates the enforcement of court orders, decrees and judgments made prior to the effective date (March 9, 1949) of the new liquor control act. It would have been too much to expect that all violations of every permanent injunction issued under the old law would cease the moment the new act took effect, so the legislature took care to enact this saving clause embodied in section 115.
In the transition of passing from sixty-eight years of constitutional prohibition to regulated liquor control under chapter 242, Laws 1949, it was the purpose of our recent legislature to take every possible precaution to stop' the illegal sale of, and traffic in, intoxicating liquors — both by those who flouted the old law and those who may wish to violate the new one. The courts from time to time will have occasion to construe this new act as well as the legislative intent behind its enactment, and in so doing, should not lose sight of the aforesaid purpose which our legislature desired to accomplish by its attempted regulation of this intractable commodity.
Some mention is made in the briefs before us that under section 95, chapter 242, Laws 1949, the “padlock period” shall be not less than three months nor more than two years, and until the owner shall post a $1,000 bond conditioned that the law will not be violated for two years thereafter. In the instant case the “padlock order” was to continue “until the further order of the court.” The owner of the padlocked premises may be entitled to have the “padlock order” modified in harmony with section 95 of chapter 242, upon proper application, but that matter was not brought to the attention of the trial court and consequently will not be reviewed on appeal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to determine the extent of interest of the parties in certain real estate and to quiet the title of plaintiffs to their interests therein. Certain allegations of the answer of the defendant were stricken by order of the court and she has appealed.
.The allegations of the petition may be summarized as follows: M. C. Merritt, then the owner of a quantity of real estate, including the- land in Ellis county presently involved, died intestate in 1930, leaving as his heirs his widow Mahala E., his daughters Nellie Henderson and Mollie L. Richardson, his son William A., and three grandchildren, Doralynn Collins, Francis Leroy Collins and Donald Collins. An action to partition all of the real estate was commenced, but by agreement of the parties, Nellie Henderson elected to take the real estate presently involved and a sheriff’s deed therefor was executed and delivered to her. As part of the agreement, on October 5, 1931, Nellie Henderson entered into a trust agreement, the details of which will be more fully set forth later, stating she held the title in trust for the parties in the proportion of one-half for Mahala, one-eighth each for herself, Mollie and William, and one-twenty-fourth éaeh for Donald, Doralynn and Francis. A copy of this trust agreement was attached to the petition and made a part thereof. The sheriff’s deed and the trust agreement were recorded in the office of the register of deeds on December 8, 1931. (It is also noted that a copy of the trust agreement was made a part of the answer later mentioned, that copy showing it was recorded in the office of the register of deeds of Ellis county on December 8, 1931.) On December 1, 1931, William A. Merritt died intestate, leaving his mother, Mahala E. Merritt, as his sole heir. On June 9, 1937, Mahala E. .Merritt died testate, owning an undivided five-eighths of the involved real estate. Under her will she devised her undivided interest in the real estate to her daughter Nellie Henderson. Allegations concerning transfer of mineral rights need not be noticed. It'was alleged that the defendant Mollie L. Richardson claimed some right other than her undivided one-eighth interest, adverse to the interest of the other owners, all of whom joined as plaintiffs, and they prayed that she be required to answer and set up her claim, that it be adjudicated, and that plaintiffs have judgment that they owned the interests set forth in the petition and their title thereto be quieted.
‘ The trust agreement was between Nellie Henderson and her husband as first parties, and Mahala E. Merritt, Wm. A. Merritt, Mollie L. Richardson, Donald Collins, Doralynn Collins and Francis Collins as second parties, and recited that the parties were, as heirs of M. C. Merritt, the owners of the involved real estate, and that in the partition suit a deed was made to Nellie Henderson, and it was agreed that she should hold title for the parties (in the same proportions as are alleged in the petition) and that her duties were to rent the lands, pay the taxes and distribute any surplus after providing for the payment of taxes. It was further provided the agreement should run for five years “and the said first party shall not sell said land without the unanimous consent of all of the parties.” Further provision was made that if at the end of five years the land had not been sold, the first party should continue to hold the property under the same terms “and shall not sell or dispose of said property, without the unanimous consent of all parties.” This trust agreement was signed by each of the parties.
In her answer Mollie L. Richardson alleged the death of M. C. Merritt, those who survived him as heirs and their proportionate shares of his estate; that a partition action was commenced and by agreement the title was taken in the name of Nellie Henderson, substantially as alleged in the plaintiffs’ petition. The gist of the remainder of her answer is as follows: In paragraph 10 it was alleged that all of the heirs, including Mahala E. Merritt, orally agreed that the real estate would be held intact as family property for a period of five years and during that period none of the land nor any of the interests of the parties therein could or would be sold or otherwise disposed of without the unanimous consent and approval of all, nor until the death of the mother Mahala E. Merritt who was then seventy-eight years of age, and if the land was not disposed of within the five-year period, then the written trust agreement should remain in full force until the death of Mahala E. Merritt, unless the land was sooner sold with the unanimous consent of all parties interested, and if not so sold, upon the death of Mahala E. Merritt, the real estate should and would go to and vest in the parties as her heirs, and as their interests might appear under the statutes of descents and distributions of Kansas, and that a written trust agreement would be prepared and signed by all of the parties, covering and incorporating all of the terms and provisions of the oral agreement. In paragraph 11 it was alleged that Mahala E. Merritt and particularly Nellie Henderson, procured the drafting of a written trust agreement, a copy being attached to the answer (and being the same agreement the terms of which are heretofore reviewed) and prior to the execution thereof represented to Mollie L. Richardson that the written agreement so prepared contained and completely expressed all of the terms and provisions of the prior oral agreement, and Mollie L. Richardson, without carefully examining the same or observing omissions and mistakes therein, believed and relied upon the oral representations aforesaid and assumed that the written agreement expressed the actual agreement of the parties. In paragraph 12 it was alleged that through oversight, accident, mistake or common mistake, or the oversight and mistake on the part of Mollie L. Richardson, and the oral representations of the plaintiffs and particularly Nellie Henderson who sat idly by and remained silent knowing that the written agreement failed to set forth the terms and provisions of the prior oral agreement, permitted Mollie L. Richardson to sign the written agreement. Then follow extended allegations that certain oral agreements were not incorporated in the written agreement, as well as that certain language in the written agreement was erroneously included and should be stricken therefrom, and that the written trust agreement should be reformed to express the true intent of the parties, and as so reformed, should be specifically enforced. In a negative way, it may be said there was no allegation as to when Mollie L. Richardson discovered the written trust agreement did not include her version of the agreement. In paragraph 13 it was alleged that Mollie L. Richardson had at all times performed all conditions of the trust agreement, as reformed, to be performed by her, and that if any of the plaintiffs, including Mahala E. Merritt, disposed of their undivided interests by conveyance, will, deed or otherwise, such conveyance or disposition, if any, was contrary to and in violation of the terms and agreement of the parties, and any disposition of the interests of the parties was subject to the terms and provisions of the agreement (as sought to be reformed). In paragraph 14 it was alleged that William A. Merritt died and that Mahala E. Merritt inherited his one-eighth interest in the involved real estate. In paragraph 15 it was alleged that Mahala E. Merritt died intestate as to the involved real estate, subject to the oral agreement aforesaid and the written trust agreement as reformed, and, without setting forth details, that Mollie L. Richardson was the owner of' an undivided one-third of the real estate and the minerals thereunder. Other allegations of the answer need not be reviewed. The prayer was for reformation of the written trust agreement and for specific performance; that Mollie L. Richardson be found to be the owner of an undivided one-third interest in the lands and minerals and placed in possession thereof and her title quieted thereto; that the plaintiffs be barred from any right, title, interest or property therein and thereunder; and that she have judgment for costs and all other relief to which she might be entitled.
Plaintiffs moved the court for an order striking all of paragraphs 10, 11, 12, 13 and 15, and a part of paragraph 14, for the reason they did not state facts sufficient to constitute any defense to the petition or sufficient to constitute any cause of action in favor of Mollie L. Richardson, or to warrant relief of reformation or any other relief to her. The trial court sustained the motion as to paragraphs 10, 11, 12 and 13, and in due time the defendant appealed to this court.
In her brief the appellant directs our attention to certain of our decisions concerning her right to be heard. We think it clear that the motion to strike challenged the sufficiency of the answer to state a defense, was tantamount to a demurrer, and that an appeal lies. See Cow Creek Valley Flood Prevention Ass’n v. City of Hutchinson, 163 Kan. 261, 263, 181 P. 2d 320, and cases cited.
The question presented by the appeal is whether the stricken paragraphs stated valid defenses. Appellant in her brief states that on the hearing of the motion in the trial court the plaintiffs contended that the alleged defenses were barred by the statute of limitations and laches, and that the trial court, in ruling, assigned no reason other than a casual mention or reference to that statute. In this court the essential question presented is whether the alleged defenses are barred.
Appellant premises her argument by directing attention to authorities that a trust once created endures for the period necessary to accomplish the objects of it, and to a claim that the beneficiaries under the trust agreement are tenants in common; that the possession of one is the possession of all, and of the necessity of notice to a cotenant not in possession of the hostile character of the possession claimed by a cotenant in possession, but from the pleadings we discern nothing that warrants discussion of either of the above.
In her argument appellant directs attention to the fact that Nellie Henderson is a trustee for the owners of the real estate, but at some places the trust referred to is that embodied in the written trust agreement and in others it is the trust as would be embodied in the written trust agreement if reformed as appellant would have it. We shall not attempt to point out inconsistencies in argument resulting from that confusion. Appellant contends that appellee Nellie Hen.derson is the trustee of an express trust and that until she repudiates it the statute of limitations does not commence to run. For our purposes it may be conceded that that is the rule, but that it has any application here does not appear. It is clear from the petition that the plaintiffs not only are not asking for any relief based in any manner upon repudiation of the trust but on the contrary allege the trust and that the appellant is claiming, if not adversely to its terms, something additional thereto. The question really is whether her additional claims are barred.
Appellant also directs our attention to authorities holding that a statute of limitations can be pleaded only as a defense and that it cannot be made the basis of a claim for affirmative relief, such as Johnson v. Wynne, 64 Kan. 138, 67 Pac. 549, and cases cited, and contends that appellees are seeking to do that here. She also directs attention to Muckenthaler v. Noller, 104 Kan. 551, 180 Pac. 453, and cases following it, that the statute making barred demands unavailable as a cause of action or a ground of defense has no application to matters of pure defense, and on the apparent assumption the written trust agreement is as she wishes it reformed to be, argues that appellees are attacking it and that she is simply defending. That contention is against the record disclosed by the petition and her answer. Appellant is attempting to reform the trust agreement so that she may get a larger portion of the lands than are given her under the written trust agreement as it stands unreformed and she asks that her title to the increased interest be quieted. She is asking for affirmative relief and may not urge either that the appellees are seeking to use the statute of limitations as a weapon or that she is urging otherwise barred matter as pure defense.
Again, on the apparent assumption the trust is as she wishes the trust agreement to be reformed to show, appellant contends that the answer discloses a confidential relation between Nellie Henderson as trustee, and appellant as beneficiary, and that the trustee may not plead the statute of limitations unless she had repudiated the trust. It would extend this opinion unduly to discuss every phase of law suggested by the above contention. It may be observed first that it is the written agreement creating the trust which appellant now seeks to reform. Prior to its execution the two sisters occupied no position of trust toward each other. And as has been observed in connection with other contentions, Nellie Henderson is seeking to enforce the trust as written, it is appellant who attacks it. The effect of the ruling to strike is only to say that appellant has waited too long.
No attack was made on the sufficiency of the petition in this case and we assume without more that it stated a cause of action. By her answer the appellant sought to have the written trust agreement reformed and, standing alone, that would constitute a cause of action. Under G. S. 1935, 60-313, any cause of action barred by the statute of limitations is unavailable either as a cause of action or as a ground of defense. Considered as a cause of action for relief on the ground of fraud, was it barred? The stricken allegations, read in connection with the written trust agreement, disclosed that the trust agreement was made a matter of record in the office of the register of deeds in Ellis county in December, 1931. The agreement affected lands in that county and that was the proper place to record it. That was an open, public disclosure of the contents of the agreement, and if it be assumed there was fraud, under the reasoning of Malone v. Young, 148 Kan. 250, 264, 81 P. 2d 23, and the cases cited therein, the claim now made was barred long before the instant action was commenced. Considered as a cause of action to obtain reformation on the ground of mistake, the statute commenced to run from the date the mistake was made (Travis v. Glick, 150 Kan. 718, 96 P. 2d 624, and Regier v. Amerada Petroleum Corp., 139 Kan. 177, 30 P. 2d 136, and cases cited). Whether it be said that relief is sought either for fraud or for mistake, or both, it appears from the face of the petition that the time in which relief might have been sought had expired before the action was commenced. Considering the motion to strike as a demurrer, the ruling on it was proper. (Bradley v. Hall, 165 Kan. 358, 194 P. 2d 943, and cases cited.)
In view of what has been said we need not discuss whether the appellant was guilty of laches in asserting her right to relief, nor other matters set forth in her brief.
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The opinion of the court was delivered by
VALENTINE, J.:
This was an action of mandamus, brought October 6, 1883, in the district court of Atchison county, by the county attorney, in the name of the state of Kansas, against the Missouri Pacific railway company, the Central Branch Union Pacific railroad company, and the Atchison, Topeka & Santa Fé railroad company, to compel the defendants jointly to construct a viaduct over the defendants’ railroad tracks where the same cross Sixth street, in the city of Atchi-.son, Kansas. An alternative writ of mandamus was issued in the case and served upon each of the defendants, and each filed a separate answer to the alternative wrjt. The plaintiff then filed a separate motion to each answer to strike out and quash the same, and also filed a separate demurrer to each .answer, setting forth as a ground for such demurrer, that the answer did not state facts sxrfficient to constitute any defense to the plaintiff’s alternative writ. The court below overruled .all these motions and demurrers, and the plaintiff excepted, and now brings the case to this court for review.
The alternative writ, after alleging in substance that the respective railroad companies are railroad corporations, and that the city of Atchison is a municipal corporation and a city of the first class, and after alleging that the defendant railroad companies had the right-of-way and privilege to lay down their tracks across said Sixth street, and to operate their trains over them, and that they did so lay down their tracks, and did so operate their trains over them, then alleges in substance that the public safety and convenience require that a viaduct be constructed over said tracks where the same cross Sixth .street, and that proper approaches to said viaduct, and sidewalks, should also be constructed; and further alleges, that the city of Atchison, by an ordinance duly passed on August 20, 1883, ordered that the railroad companies should themselves construct such viaduct, approaches, etc.; and alleges that the railroad companies have utterly failed and refused to do so, or to construct any part thereof. The foregoing ordinance provides, among other things, that the defendant shall construct the viaduct, “ with suitable and necessary approaches thereto, at a reasonable and proper grade, and inclined so as to permit the same to be conveniently used as a street, and for public travel by footmen and vehicles, and at such height as to permit engines and trains to pass under the same without unnecessary danger to said structure.”
The answers of the defendants are separate, and much more voluminous than the alternative writ, and therefore we shall attempt to give at most only the substance of them, which is as follows: Prior to the time when the city of Atchison took any steps to require the defendants to construct said viaduct over their tracks on Sixth street, the defendants, under their charters and by virtue of city ordinances, had already procured their rights-of-way across said Sixth street, and the city had already established the grade of such street, and the tracks of the railroad companies had already been so constructed as to conform to such grade, and such grade has never since been changed or altered, but remains the same as when first established, and it is a physical impossibility for the defendants to construct such viaduct without changing, impairing and destroying the grade as thus established, not only where the tracks cross the street, but also for a long distance along the street north and south of such crossing; and this for the reason that suitable approaches to make such viaduct accessible to teams and persons desiring to use the same must also be constructed along said Sixth street for a great distance north and south of such crossing. Also, on each side of Sixth street, at and near the place where the viaduct is required to be constructed, individuals have erected lasting and valuable improvements on their lots abutting on the street, with reference to the established grade, and the only means of egress from and ingress to their property is by using Sixth street opposite their property, and at such grade; and the construction of such viaduct, and the consequent change of the grade of Sixth ■street, will render the street opposite their property inaccessible ■and useless, and will greatly damage their property; and the •city has made no provision for compensating them for such damage, or for any damage or loss. One of the defendants, relying upon the established grade of the street, has laid out and expended a large sum of money toward the erection of a large freight depot, abutting on Sixth street, and by the erection of the viaduct the depot will in many respects be rendered useless, and the large sum of money thus expended will be wholly lost. In addition to the said freight depot, which is now in process of erection, the defendant has already constructed a freight depot abutting on Sixth street at the east side thereof, near the place where it is now sought to have the viaduct constructed, and the construction of the same will cut off all access to both this depot and the other depot from Sixth street, and such construction will render the use of the two depots impracticable after the entrances thereto from Sixth street have been obstructed as aforesaid; and the city of Atchi-son has made no provision for compensating the defendant for such inconvenience, loss, and damage. The erection of the viaduct will also require the construction of approaches extending four or five hundred feet north of the north line of the defendant's tracks and of their rights-of-way, as given and granted to them by the terms and conditions of the previous •ordinances of the city, and such approaches cannot be built or maintained without intersecting and crossing Main street, •and without extending across Main street many feet north of the north line thereof. The construction of such approaches as required by the ordinance and the alternative writ, would require and necessitate the destruction and blocking-up of Main street where the same crosses and intersects Sixth street; and if such viaduct and approaches are constructed of sufficient height to permit teams and vehicles to pass under the north approach to the same at Main street, such approach will extend a distance of six or eight hundred feet north of and outside of the rights-of-way of the defendant companies, which would require the construction of a bridge over White Clay •creek, which crosses and intersects Sixth street some three or four hundred feet north of defendant’s tracks and rights-of-way, and the construction of which bridge would cost many thousands of dollars; and the city of Atchison has made no provision therefor. It is a physical impossibility to construct the viaduct of sufficient height to permit the engines and cars •of the defendant companies to pass under the same, and at the same time to give the proper inclinations to the approaches thereto within the said lines designated in said ordinance, to wit: between Utah avenue and Main street. The several defendants occupy unequal areas in Sixth street, and own an unequal number of tracks thereon, and after repeated efforts they have been unable to agree upon what proportion of the expense of •constructing the viaduct, the approaches, sidewalks, etc., each should bear, or how such expense should be divided or proportioned between them, and have been unable to agree upon the material to be used, or the height of the viaduct,, or the lengths and inclinations of the approaches. There is no partnership or joint liability existing between the defendants in relation to the occupancy of the street with their several tracks, but each company acts separately.
The defendants also, by their answers and otherwise, raise the following objections to this proceeding: Mandamus will not lie to enforce an ordinance; nor will it lie against a railroad company in any case to compel it to construct a viaduct •over its tracks where its road crosses a public street, for the duty supposed to rest upon the railroad company to construct such viaduct is not a duty “resulting from an office, trust or station.” The state of Kansas, which is plaintiff in this action, is not the real party in interest, nor the proper party to sue, but if any person or corporation is entitled to sue it is the city -of Atchison only. A city has no power, by ordinance or otherwise, to require a railroad company to construct a viaduct, and particularly the city of Atchison has no such power in the present case; but even if it has, still it did not properly ex-ercise such power, and therefore the ordinance by which it attempted to exercise suck power is void; and it is void, for the reason that it is unconstitutional, in violation of the statutes, vague, obscure, indefinite, and uncertain, and no notice-was given to the defendants with regard to its passage until some time after it was passed. It is unconstitutional and illegal for the following, among other, reasons: It attempts to-require these defendants to construct said viaduct at their own expense, which is virtually to levy a special tax upon them in addition to the ordinary taxes levied upon all the tax-payers, of the city of Atchison, and virtually to levy a tax upon them which is not levied upon any of the other tax-payers of such city. The defendants have by their charters, and by prior ordinances and contracts, and by constructing their roads with reference to the established grades of the streets, obtained vested rights to have the streets over which their tracks are constructed remain as they now are and at the present established grades; and these rights cannot legally be disturbed by any ordinance of the city, or even by a statute of the state. This ordinance, if enforced, will indirectly work a change in the grade of the streets of the city of Atchison, which is in violation of law and cannot legally be done; but the grade of the streets can only be changed by direct and express action on the part of the mayor and council of the city, and by express ordinance duly passed for such purpose. The ordinance-does not designate or provide for determining what shall be the height or dimensions of the viaduct, or whether it shall be of wood, iron, or stone, or of some other material, or what shall be the height or inclination of either of the approaches, or how much or what part or proportion of the work shall be-done by any one of the several defendants, or how the expenses of the work shall be divided or proportioned between them but it simply requires that the defendants shall jointly construct a viaduct as heretofore stated.
The facts as set forth and alleged in the defendants’ answers must be taken as true, for the answers have been attacked only by motions to quash and by demurrers; and, taking these facts as true, we think the decision of the court below is correct.
With respect to the law of the case, we agree in part with the plaintiff, and in part with the defendants.
The defendants claim that mandamus will not lie in the present case. Now assuming for the present- that a railroad company may be legally and properly ordered by a city to construct a viaduct over its tracks where its railroad crosses a public street, and that such an order has been legally and properly made, then we would think that mandamus would undoubtedly lie against the corporation to compel it to construct such viaduct: provided, of course, that no other plain and adequate remedy exists. (High’s Extraordinary Legal Remedies, §§319, 320, and cases there cited; §§ 276 and 290, and cases there cited; Cooke v. B. & L. Rld. Co., 10 Am. & Eng. Railroad Cases, 333, and note, and cases there cited; Cambridge v. C. B. Rld. Co., 48 Mass. 70; I. & C. Rld. Co. v. The State, 37 Ind. 489; In re T. W. P. Co., 1 Spencer, 659; Habersham v. S. & O. C. Co., 26 Ga. 665.)
A railroad company is a quasi public corporation, and all its rights and powers are conferred upon it not merely for the benefit of the corporation itself, but also in trust for the benefit of the public; and whenever it neglects or fails to perform any of its corporate duties, it may generally be compelled to perform the same by an action of mandamus. The duty resting upon a railroad corporation to perform whatever has been legally enjoined upon it by legal and proper authority, is a duty resulting from a public trust, and is also a duty resulting from a public station, and the public may enforce the performance of such duty by mandamus, whenever no other plain and adequate remedy exists; and the public may generally enforce the performance of such duty through the county attorney or the attorney general. Probably it would be more appropriate, however, in the present case, that the city of Atchison, instead of the county attorney or the attorney general, should prosecute the action to enforce the performance of the present supposed and alleged duty, as the city of Atchison is by law made the special servant and agent of the public for the control and management of all the public streets within its own bounda ries; but in some cases undoubtedly it would be entirely proper for the county attorney or the attorney general, in the name of the state, to prosecute the action for such purpose. For the purposes of this case, we shall assume, but without deciding the question, that the action has been rightfully brought in mandamus by the county attorney in the name of the state.
The next question to be considered is, whether a city of the first class has the power to order a railroad company to construct a viaduct over its tracks where the same cross a public street. We think it has. In this state, all cities are invested with the entire management and control of all public streets within their boundaries. They are the representatives of the public in this respect, and may generally make any order concerning the streets that could be made by the legislature or by any other agency or instrumentality acting for the public; and corresponding with these powers and privileges, are certain duties imposed, requiring the cities to keep their streets in a reasonably safe and proper condition for travel and transportation, with corresponding liabilities to be incurred for any failure to perform these duties. (Gould v. City of Topeka, 32 Kas. 485.) Also, cities of the first class — of which the city of Atchison is one — are endowed with the following other general and special powers and privileges, given to them by § 11 of the first-cláss-city act, as follows:
“The mayor and council . . . shall have power to enact ordinances: . . . Seventh, To adopt all such measures as they may deem necessary for the protection of strangers and the traveling public, in person or property; . . . Twenty-first, To regulate the crossings of railway and street railway tracks, and provide precautions and prescribe rules regulating the same, and to regulate the running of street railroads or cars, and railway engines, cars and trucks, within the limits of said city, and to prescribe rules relating thereto, and govern the speed thereof, and to make any other and further provisions, rules and regulations to prevent accidents at crossings and on the tracks of railways, and to prevent fires from engines, and to require such railroad companies to ereot viaducts over their railroad tracks at the crossings of streets.” (Laws of 1883, pp. 62 to 66.)
The provisions of the foregoing section must of course be construed in connection with §§13 and 18, and other sections of the first-class-city act. Said § 13 contains, among others, the following provision:
“Sec. 13. For opening, widening, extending and grading any street, lane, alley, or avenue, and for doing all excavating and grading necessary for the same, and for all improvements of the squares and areas formed by the crossing of streets, and for building culverts, bridges, viaducts, and all crossings of streets, alleys and avenues, the cost or contract-price thereof shall be paid out of the general improvement fund. . . ” (Laws of 1881, ch. 37, §13.)
Said § 18 contains, among others, the following provision:
“Sec. 18. . . . When the grade of any street, alley, lane or avenue shall have been so established, or shall have been heretofore established, and the grade thereof accepted by the council, such grade shall not be changed until declared necessary by resolution, by a three-fourths vote of all the council elected, and not then until the damage to property-owners, which may be caused by such change of grade, shall have been assessed by three disinterested appraisers. . . ” (Laws of 1881, ch. 37, § 18.)
Construing all the foregoing statutes together, along with the other statutes applicable to the case, we would think that a city of the first class has the power to order a railroad company operating its trains over or across the streets of the city to so use the streets as not to. render them unsafe or dangerous for public use. Indeed, we would think that the city might expressly order the railroad company to use flag-men or gates, to erect viaducts, or to do almost anything else within reason for the purpose of securing safety as against the railroad company itself to all persons or property in the rightful use of such streets. (Cooke v. B. & L. Rld. Co., 10 Am. & Eng. Rld. Cases, 328, and note, and cases there cited.) A railroad company has no right to render the streets of a city unsafe or dangerous; and in all cases where a railroad company is permitted to use a street for railroad purposes, it should be compelled to restore the street as far as practicable to that same condition of safety and usefulness as the street would occupy if it were not used for railroad purposes at all, and the railroad company should be compelled to maintain this condition of safety and usefulness as long as it continues to use and occupy the street. (Cooke v. B. & L. Rld. Co., 133 Mass. 185; same case, 10 Am. & Eng. Rld. Cases 328, and note, and cases there cited; The People, ex rel., v. C. & A. Rld. Co., 67 Ill. 118; Eyler v. County Comm’rs, 49 Md. 257; Welcome v. Leeds, 51 Me. 313; C. R. I. & P. Rld. Co. v. Moffitt, 75 Ill. 524; Manley v. St. H. C. & Rly. Co., 2 H. & N. 840; English v. N. H. & N. Co., 32 Conn. 241; Burritt v. New Haven, 42 Conn. 174.) It is certainly fair and reasonable to impose the cost of restoring a street to safety and of maintaining such safety, upon those who, for their own convenience and profit, have rendered the street unsafe; and it would certainly be unfair and unreasonable to impose such cost upon the public generally, or upon innocent owners of adjacent property. In speaking of viaducts in this connection we have intended to include viaducts only, and not grades, sidewalks or approaches.
But, holding as we do that cities may in some cases require railroad companies to construct viaducts, and holding as we do that county attorneys may in some cases enforce such construction by an action of mandamus, in the name of the state, still we do not think that the present action can be maintained by either the county attorney, or the attorney general, or the city of Atchison: First, the ordinance is too vague and indefinite to be enforced by mandamus or by any other specific remedy; (City of Roxhury v. B. & P. Rld. Co., 68 Mass. 460;) second, its enforcement would ignore and indeed contravene some of' the provisions of the statute of Kansas relating to street improvements. (First-class-city act, §18, Comp. Laws of 1879, pp. 147, 148, ¶ 641; Laws of 1881, ch. 37, § 18; Newman v. City of Emporia, 32 Kas. 436.)
This ordinance is as vague and indefinite as the defendants claim; and it requires, as is claimed by them, a change in the grade of Sixth street for a long distance, and yet it does so- Avithout resorting to scarcely any of the preliminary steps necessary to be taken in order to effect such a change of grade. The provisions of said § 18 have been wholly ignored in the passage of the aforesaid ordinance, and the provisions of the ordinance are irreconcilably in conflict with the provisions of that section. So far as this ordinance requires a change of the grade of Sixth street, it is void; and being void to that extent, the viaduct should not be constructed under its provisions, for the viaduct, without a change in the grade of Sixth street, would be worthless, and worse than useless — it would be a nuisance.
There are other reasons why a writ of mandamus should not be allowed in the present case, but we do not think that it is necessary to state them. We might, however, say that Ave do not think that it is necessary that the city should have given the railroad companies notice before passing the ordinance requiring them to construct the viaduct. Notice afterward, with an opportunity on the part of the railroad companies to contest the validity of the ordinance and the right of the city to compel them to construct the viaduct, is sufficient. As to notice and the opportunity of parties to contest the regularity and validity of proceedings had by city officers, see the case of Gilmore v. Hentig, just decided.
We might also say that Ave have not examined critically the question as to how much of the defendants’ corporate rights may have been obtained under and by virtue of their old territorial charters enacted by the old territorial legislature, or how small a portion of such rights have since been obtained under and by virtue of the constitution and laws of the state; but however inviolable any of their rights which they may have obtained under their old territorial charters may be, it cannot be denied that whatever corporate rights or powers they have obtained under or by virtue of the laws of the state, such rights are subject to modification and change by amendment or repeal of such laws. (Const., art. 12, §1.) It is probable that their entire rights to operate their roads over or across the streets of the city of Atchison have been obtained solely and exclusively under the constitution and laws of the state, and under city ordinances.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action, commenced on March 11, 1884, by F. G. Hentig and others, against George T. Gilmore, county clerk, Bradford Miller, county treasurer, and the city of Topeka, to perpetually enjoin the defendants from collecting certain special taxes levied by the city of Topeka upon the lots of the plaintiffs to pay for grading and paving certain alleys in said city. Tbe action was tried by the court without a jury, and the court made certain special findings of fact and conclusions of law, and rendered judgment upon such findings and conclusions in favor of the defendants and against the plaintiffs for costs. The plaintiffs bring the case to this court for review.
The plaintiffs claim that the said special taxes are void for the following reasons: (1) That the estimates of the cost of the work made by the city engineer were not under oath; (2) that the said estimates were not made in detail, and were indefinite and uncertain; (3) that the oath taken by the appraisers who appraised the lots for taxation was not in the form prescribed by statute, and was insufficient; (4) that no money was in the city treasury, or set apart or appropriated, for the payment of the work prior to its completion; (5) that the estimates were for a stone pavement, while the material used was asphalt; ( 6) that the taxes were not levied with any reference to special benefits to the plaintiffs or to their property ; (7) that the taxes were levied to pay for grading the alleys, as well as for paving the same.
We shall consider these matters in their order.
I. It seems from the record that the estimates of the cost of the work were not made under oath. This was wrong. Section 22 of the first-class-city act provides, among other things, that “before” any kind of work or improvement shall be commenced “ a detailed estimate of the cost thereof shall be made wider oath by the city engineer, and submitted to the council.” A “detailed estimate” made “under oath” seems to be a condition precedent to the making of special improvements in cities of the first class. In connection with this point, see the following authorities: Merritt v. Portchester, 71 N. Y. 309; Thompson v. White, 4 Serg. & R. [Pa.] 135; Cambria Street, 75 Pa. St. 357; Gilmore v. Hentig, ante, p. 157.
II. It also appears from the record that the said estimates were not made in detail, but were made in very general terms, and were left very indefinite and uncertain. There were two estimates, according to the findings of the court below, one filed May 21, 1883, for a portion of the work; and the other filed May 7,1883, for another portion of the work. The first reads as follows:
“ Estimates of expense for grading and paving alleys between Seventh street and Eighth avenue, and between Kansas avenue and Quincy street, as follows:
For excavating 850 yards at 30 cents per yard. §255
For paving 14,000 feet at 18 cents per foot. 2,520
$2,775
J. Huntoon, City Engineer.”
The second estimate is substantially the same in form as the first. It will be seen that nothing is said in these estimates about the character of the excavation or excavations, nor in what part or parts of the alleys the excavation or excavations were to be made. It will also be seen that nothing is said about the character of the paving, or what material or materials were to be used — whether brick, stone, wood, concrete, asphalt, or something .else, or whether partly one and partly another; and nothing is said about the thickness of the pavement, whether two inches, two feet, or some other thickness. This does not constitute a compliance with said § 22 of the first-class-city act, which requires that “before,” any work is done, or even contracted for, “a detailed estimate of the cost thereof shall be made under oath by the city engineer, and submitted to the council.” The plaintiffs claim that a compliance with these provisions of § 22 is a condition precedent to the making of special improvements in cities of the first class, and that a failure to comply with such provisions will invalidate all proceedings having for their object the making of special improvements and the levying of special taxes; and we are inclined to agree with the plaintiffs in these particulars. (Gilmore v. Hentig, supra; Welker v. Potter, 18 Iowa, 85, and the cases heretofore cited.)
III. It also appears from the record that the oath taken by the appraisers who appraised the lots for taxation, was not in terms just such an oath as is required by the statute. (First-class-city act, § 13.) The statute provides that the appraisers may appraise the property “after having taken and. subscribed an oatli to make a true and impartial appraisement;” and it does not provide that they may appraise the property at any time before taking and subscribing such an oath; while the only oath that was in fact taken by the appraisers was that they would “faithfully and impartially discharge their duties as appraisers.” The statute, as will be seen, does not give the form of the oath, but simply states what it should be; yet the plaintiffs claim that the exact oath provided for by the statute must be taken and subscribed; and that it is a ■condition precedent to the levying of the taxes, and cite as .authority therefor the cases heretofore cited. (See especially the case of Merritt v. Portchester, 71 N. Y. 309.) It is hardly necessary for us to express our opinion with reference to the .sufficiency of the oath that was in fact taken.
IV. It also appears from the record that at no time prior to the completion of the work, or even afterward, was there .any money in the city treasury, or set apart or appropriated, for the payment of the work. Is this material? Will it invalidate the taxes? Section 22 of the first-class-city act, as .amended on March 7, 1883, provides, among other things, as follows:
“Before any such work or improvement, except building sidewalks, shall be commenced, the money to pay therefor must be set aside in the city treasury by an appropriation ordinance, regularly passed and published; and it shall be the duty of the •city treasurer to take notice of such ordinance, and be governed thereby.”
And the fortieth and forty-first subdivisions of § 11 of the first-class-city act read as follows:
“Fortieth: To appropriate money and provide for the current expenses of the city: Provided, That no indebtedness shall be incurred, or order, or wai’rant, or evidence of indebtedness, of the city shall be drawn or issued on the treasurer in payment of any indebtedness, to exceed the amount of funds on hand in the treasury at the time: And provided further, That •every order or warrant drawn on the treasury shall express on its face to whom issued, and for what purpose allowed; and the same shall be payable to such person or his order.
“Forty-first: All expenditures of moneys, and for any purpose whatever, shall be in pursuance of a specific appropriation made by ordinance, and in no other manner.”
The work was all done after these statutes took effect, and while they were in force. The members of this court have been unable to agree with reference to what should be the true interpretation or construction of said § 22, with regard to this subject. Hence we shall pass the question for the present.
V. It is also claimed by the plaintiffs that the estimates were made for a stone pavement, while the material used was asphalt. But such does not seem to be the case, from the findings of the court below. There is nothing in those findings that shows that the estimates were for stone pavements, or that the pavements were in fact constructed of asphalt. Both the findings and the estimates contained in the findings are entirely indefinite with respect to this matter. There was some evidence, however, introduced, which tends to prove that this claim of the plaintiffs is true. Now if this claim of the plaintiffs is true — that is, if the estimates were in fact made for stone pavements, and if the materials used for the construction of the pavement were not stone, but were some other kind of material — then we would think there was such a departure from the original plan of the work as would render the special taxes levied for the payment of the costs thereof illegal and void. (Sloan v. Beebe, 24 Kas. 343.)
VI. Of course, special taxes for local improvements must be levied with reference to the special benefits conferred upon the owners of the property taxed; but such seems to have been done in the present case. The taxes were levied in accordance with § 13 of the first-class-city act, upon the adjacent property in proportion to its value without the improvements thereon; and this, as a general rule of apportionment, we think is valid. (Gilmore v. Hentig, supra; Downer v. Boston, 61 Mass. 277; Wright v. Boston, 63 id. 233; Brewer v. Springfield, 97 id. 152.) Of course there might be special instances where the taxes would not be legal or valid under such an apportionment; but the rule, we think, would be that the taxes would be valid if nothing else rendered them invalid.
YTI. It also appears from the record that the special taxes levied in the present case were levied to pay for the grading of the alleys as well as for the paving of the same. Is this valid? Section 13 of the first-class-city act provides, among other things, as follows:
“Sec. 13. For opening, widening, extending and grading any street, laue, alley or avenue, and for doing all excavating and grading necessary for the same, and for all improvements of the squares and areas formed by the crossing of streets, and for building culverts, bridges, viaducts, and all crossings of streets, alleys and avenues, the cost or contract-price thereof’ shall be paid out of the general-improvement fund; and for all paving, macadamizing, curbing and guttering of the streets and alleys, the assessment shall be made for the full cost thereof on each block separately, on all lots and pieces of ground, to the center of the block,” etc.
It will be seen from this section that the cost of all grading must be paid for out of the general-improvement fund and payment for such improvements cannot be made or provided for by the levying of special assessments or special taxes upon the property of the adjacent lot-owners. In the present case we think that only the cost of the paving can be provided for by the levying of special taxes upon the adjacent property-owners. Of course where an alley has been sufficiently graded, or where it does not need to be graded, the small cost of simply preparing it for pavement might be included in the cost of the pavement as a mere incident thereto, but under the foregoing statute the full cost of what is generally known or understood to be grading cannot be included in the cost of the pavement. The two kinds of improvement must be provided for separately, and paid for separately. The cost of the grading must be paid for out of the general-improvement fund, while the cost of the pavement may be paid for from special taxes levied upon abutting lot-owners. This might perhaps be different, except for the foregoing statute.
We think the special taxes levied in the present case are illegal, and at least voidable, and that the plaintiffs are entitled to the injunction prayed for. The judgment of the court below will therefore be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
~V ALEN TINE, J.:
This was an action, brought on March 11, 1884, in the district court of Shawnee county, by F. G. Hen- tig and others against George T. Gilmore, county clerk, Bradford Miller, county treasurer, and the city of Topeka, to perpetually enjoin the defendants from collecting certain sewer taxes levied by the city of Topeka upon the lots of the plaintiffs in said city. The action was tried by the court without a jury, and the court made certain special findings of fact and ■conclusions of law, and rendered judgment upon such findings and conclusions in favor of the plaintiffs and against the defendants, perpetually enjoining the defendants from collecting, ■or attempting to collect, said taxes. The defendants, as plaintiffs in error, now bring the case to this court for review, and .allege error in the third conclusion of law and in the judgment rendered by the court below.
The defendants in error, plaintiffs below, claim that the judgment of the court below is correct, for the reason that the taxes levied upon their lots are utterly null and void; and they •claim that the taxes are utterly null and void for the following reasons: (1) That the statute under which such taxes were levied is unconstitutional and void, for the reason that it does not provide for any notice being given to the owners ■of the property taxed, or for any opportunity for them to be heard with reference to such taxes, and no sufficient notice was in fact given; (2) that said statute is unconstitutional and ■void, for the further reason that it does not provide for levying the taxes with any reference to the benefits that might result to the owners of the property taxed from the construction ■of the adjacent improvements; and the taxes were not in fact levied with any reference to resulting benefits; (3) that there was no detailed estimate made by the city engineer, and the ■estimates that were made were not under oath; (4) that the mayor and council, instead of determining for themselves what the size, location and grade of the sewers, and all the other necessary requirements in the construction of the sewers should be, delegated such authority to the city engineer; (5) that the form of the oath taken by the appraisers of the value of the lots was not the form required by the statute, and was insufficient; (6) that the taxes levied were in excess of the estimates made by the city engineer of the cost of constructing the sewers, and even the estimates themselves as thus made were fifteen per cent, in excess of the real estimates of the cost of the work.
The statutes referred to by counsel as being specially applicable to this case are §§19 and 22 of the first-class-city act, which read as follows:
“ Sec. 19. The mayor and council shall have power to provide for a system of sewerage and drainage for the city, or any part thereof, and to build and construct sewers or drains by districts or otherwise, as the mayor and council may designate. The cost and expense of constructing the same shall be assessed against the lots or pieces of ground contained in the district in which the same is situated, and the cost of same shall be levied and collected as one tax in addition to other taxes and assessments, and shall be certified by the city clerk to the county clerk, to be placed on the tax-roll for collection, subject to the same penalties and collected in like manner as other taxes, as provided by law: Provided, That where any property has paid its full proportion for general sewers and drains in one district, it shall not be transferred to any other made liable for taxation for sewers and drains therein.” (Laws of 1881, ch. 37, § 19.)
“ Sec. 22. Before the city council shall make any contract for building bridges or sidewalks, or for any work on streets, or for any other work or improvement, a detailed estimate of the cost thereof shall be made under oath by .the city engineer, and submitted to the council; and no contract shall be entered into for any work or improvement for a price exceeding such estimate, and in no case shall the city be liable for any allowance beyond the original contract-price for such work.” (Laws of 1881, ch. 37, § 22.)
This section was amended on March 7, 1883, and it now reads as follows:
“ Sec. 22. Before the building of any bridge or sidewalk, or any work on any street, or any other kind of work or improvement, shall be commenced by the city council, or under their authority, a detailed estimate of the cost thereof shall be made under oath by the city engineer and submitted to the council; and in all cases where the estimated cost of the contemplated work or improvement amounts to one hundred dollars, sealed proposals for the doing or making thereof shall be invited by advertisement, published by the city clerk in the •official newspaper of the city for at least three consecutive days, and the mayor and council shall let the work by contract to the lowest responsible bidder, if there be any such whose bid does not exceed the estimate. If no responsible person shall propose to enter into contract at a price not exceeding the estimated cost, all bids shall be rejected and the same proceedings as before repeated, until some responsible person shall by sealed proposal offer to contract for the work at a price not exceeding the estimated cost. In no case shall the city be liable for anything beyond the estimated cost, or the original contract-price for doing such work or making such improvement. All sidewalks shall be built by contract, advertised for as herein provided. Before any such work or improvement, except building sidewalks, shall be commenced, the money to pay therefor must be set aside in the city treasury by an appropriation ordinance, regularly passed and published, and it shall be the duty of the city treasurer to take notice of such ordinance and be governed thereby.” ( Laws of 1883, ch. 34, § 3.)
There were three estimates in all made by the city engineer —two of which were made and filed prior to the foregoing amendment of § 22, and the other was made and filed afterward. They were filed respectively as follows: June 5,1882; August 29, 1882; and March 12, 1883. The most of the transactions and proceedings, and indeed all of-the transactions and proceedings which had for their object the charging of the property of the plaintiffs below, defendants in error, with special taxes, took place after the taking effect of said amendment of § 22.
"We suppose that in all cities of any considerable size a system of sewerage and drainage is absolutely necessary for the promotion of the health and comfort of the inhabitants, and to guard against epidemics and diseases generally, from the accumulation of filth and impurities. Both public and private individuals are interested in the construction of proper sewers and drains. But a proper system of sewerage and drainage can seldom if ever be brought into existence, except through the instrumentality of the public authorities. Individual effort is generally inadequate. The public has such an inter est in the improvements that it may order their construction, .and the individuals who can use them, and whose property is specially benefited thereby, have such an interest in them that they may be ordered and compelled to pay for them, by paying special taxes levied upon their property to pay for their construction. Of course,.however, only those whose property is specially benefited by the improvements can be compelled to pay such taxes. Special taxes to pay for sewers and drains can be levied only upon the property of persons who can use such sewers and drains, and not upon persons who cannot use them. And the taxes should be apportioned in accordance with the special benefits received by each individual severally. Persons whose lots do not abut upon a sewer or drain, or some-branch thereof, but who would have to construct a ditch or sewer or drain through some other person’s premises in order to reach the public sewer or drain, would of course not be liable to pay such taxes, as evidently they could not of their own choice and own volition use the public sewer or drain ; .and persons whose lots are lower than the public sewer or drain, and who could not force their sewage and waste waters up-hill to the public sewer or drain, would also, of course, not be liable to pay special taxes for the construction of the same. In these particulars, the use of sewers and drains differs from the use of public streets and alleys; for persons whose lots .abut upon any public street or alley in a city may by reason thereof, and in connection with their lots, use all the streets and alleys of the city; and this whether their lots are higher or lower than the particular street or alley upon which their lots abut. Hence arguments in cases where special taxes have been levied to pay for street improvements cannot, in .all cases, be made applicable in cases where special taxes have been levied to pay for the construction or maintenance of sewers or drains. And while there is a distinction between taxes for street improvements and taxes for the construction of sewers and drain, there is a still broader distinction between general taxes levied for general revenue purposes, and local or special taxes levied for the payment of local improve ments such as streets and alleys, and sewers and drains. One is levied directly for public purposes, although it may indirectly and remotely be beneficial to private individuals; while the other is levied directly for the purpose of procuring payment for the special benefits conferred upon individuals, although the improvement may also be beneficial to the public-generally. Special taxes should be levied only for special benefits conferred upon the property of the individuals taxed,, and never for the general benefits received and shared by all the members of the public in general; while general taxes, should be levied only for the public benefit. To levy a special tax upon the property of particular individuals for general revenue purposes, would be a violation of section 1, article 11,. of the constitution. (Hammett v. Philadelphia, 65 Pa. St. 146; Tidewater Co. v. Coster, 18 N. J. Eq. 518; Dyar v. Farmington Vil. Cor., 70 Me. 515.)
In street improvements it is sometimes difficult to separate the special benefits to individuals from the public benefits to all, for the two are sometimes so intimately connected with each other that they cannot well be separated. The ability of an abutting lot-owner to pass directly from his lot into a public street, and from the street to his lot, is a special benefit as to him; yet to travel upon the street in front of his lot, or to. or from the line of his lot, is a general benefit which he may enjoy in common with all the other members of the public. (Trosper v. Comm’rs of Saline Co., 27 Kas. 391, 393, 394.) And because of this difficulty in separating the two kinds of benefit from each other, injustice may often be done, and sometimes is done. But such need not often be the case with respect to taxes for the construction of sewers or drains. With respect to sewers and drains, the general and the special benefits are usually more distinct, and special taxes may be levied for the payment for each kind of benefit with greater certainty.. With respect to sewers, it may generally be known almost to a certainty just what particular sewer or sewers will carry off or assist in carrying off the particular sewage of each particular lot-owner; and only those who can use such sewer or sewers should be taxed specially to pay for their construction. or maintenance; and each should be taxed specially only for the amount of the special benefits which the sewer or sewers might confer upon him; and each should be taxed specially precisely in proportion to the benefits which each might individually receive. As illustrating these propositions, we would refer to the following authorities: Thomas v. Gain, 35 Mich. 156; Tide-Water Co. v. Coster, 18 N. J. Eq. 518; Cleveland v. Tripp, 13 R. I. 50; Hammett v. Philadelphia, 65 Pa. St. 146; Washington Avenue, 69 id. 352; Nichols v. Bridgeport, 23 Conn. 189; City of Hartford v. West Mid. Dist., 45 id. 462; Dyar v. Farmington, 70 Me. 515; Crawford v. The People, 82 Ill. 557; City Praying for Opening Streets, 20 La. An. 497; 2 Desty on Taxation, 1237, 1238. Some of these cases are with reference to sewers and drains, but the most of them are with reference to street improvements; but all illustrate the limitations placed upon the levying of local or special taxes.
Also, before special taxes can be made a fixed and permanent charge upon the property of individuals, the owners must have notice thereof, with an opportunity to be heard, and an opportunity to contest their validity and fairness. (Gatch v. City of Des Moines, decided by the supreme court of Iowa, January 31,1884; 3 Am. and Eng. Cor. Cases, 622, and note, and cases there cited; Thomas v. Gain, 35 Mich. 156; Lampson v. Drain Comm’rs, 45 Mich. 150; City of Nashville v. Weiser, 54 Ill. 246; Butler v. City of Chicago, 56 id. 341; Stuart v. Palmer, 74 N. Y. 183; Sewell v. City of St. Paul, 20 Minn. 511; State, &c., v. Road Comm’rs, 41 N. J. L. 83; County of Santa Clara v. S. P. Rld. Co., 13 Am. & Eng. Rld. Cases, 183.)
This proposition will indeed apply to all taxes upon property, general as well as special. With reference to general taxes, however, the statutes are usually a sufficient notice to the owners of property; for the statutes themselves usually provide for levying and collecting such taxes annually, and fix a time within which the assessment shall be made, a specific time and place for the equalization of the assessment, a specific time ■and place for the levying of the taxes, a time within which the amount of the taxes shall be placed upon the tax books, and a specific time for the tax books to be delivered to the tax collector or treasurer, aud a specific time for the taxes to become a lien upon the property taxed. Hence it is geuei’ally unnecessary to give any specific notice with reference to the assessment or levy of general taxes. (Gulf Rld. Co. v. Morris, 7 Kas. 226.) Rut the statutes alone cannot usually furnish a sufficient notice to property-owners with .regard to special taxes levied upon their property; for special taxes are levied at very irregular periods of .time, for various purposes, and in vai’ious modes. Hence it is generally necessary to give.to property-owners some specific notice with regard to special taxes. It is not necessary, however, in any case, that the notice should be personally served upon the property-owner, or that the proceeding should be a judicial proceeding; but any notice that will enable the property-owner to- procure a hearing before some officer, board, or tribunal, and to contest the validity and fairness of the taxes assessed against him before the same shall become a fixed and established charge upon his property, will be sufficient. Nor is it necessary in any case, that the notice should be given before the taxes are levied. All that is necessary, is that the notice shall be given before the taxes shall have become such a fixed and permanent charge that the property-owner can have no adequate remedy to contest their validity or fairness. In support of the foregoing propositions, we would cite the following authorities: Cleveland v. Tripp, 13 R. I. 50; Allen v. Charlestown, 111 Mass. 123; City of St. Louis v. Oeters, 36 Mo. 456; In re De Peyster, 80 N. Y. 565; Dunning v. Township Drain Comm’rs, 44 Mich. 518; Davidson v. New Orleans, 96 U. S. 97; McMillen v. Anderson, 95 id. 37; Finnell v. Kates, 19 Ohio St. 405; McMicken v. City of Cincinnati, 4 id. 394; Nichols v. Bridgeport, 23 Conn. 190.
The taxes may be levied provisionally before the notice is given, and be made a permanent charge afterward. But, as before stated, the taxes cannot become a fixed and permanent Charge until after sufficient notice has been given, and the property-owner had ample time and opportunity to contest their legality and fairness. In the present case, the statutes do not require that any notice shall be given; hence the defendants in error, plaintiffs below, claim that the statute purporting to authorize the construction of sewers and drains is unconstitutional and void, and therefore that no special taxes for the construction of sewers or drains can be levied; while the plaintiffs in error, defendants below, claim that the statute is valid, and that no notice of any kind is necessary. We do not agree with either of the parties. We think that the statute is valid, and still that a notice is required. Of course, if no other or paramount law required that notice should be given, then we would think that the statute would be sufficient within itself, and that no notice of any kind would be required; but we think there is another and paramount law, requiring a notice. This other and paramount law is embodied in the fourteenth amendment to the constitution of the United States, which provides as follows: “ Nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the law.” Such a law is probably also embodied within some of the provisions of our own constitution, though not so clearly as in the said fourteenth amendment.
As before stated, we think that the statute is valid, but nevertheless that notice of some kind must be given; but as the statute says nothing about a notice, the city evidently has a broad and almost unlimited discretion with reference to the kind of notice that may be given, and the manner in which it may be given. When the legislature provided that a city of the first class should have the power to provide for a system ■of sewerage and drainage, it incidentally and impliedly gave power to the city to use all the means for providing for such system of sewerage and drainage as might be required or might be necessary under any law or laws of the state or the United States, including both the state and the federal constitutions. The question then arises: Was the notice which was in fact given in the present case sufficient? Now we cannot say that it was wholly and entirely insufficient. After the sewers were constructed and their cost determined, and on September 4,1883, the mayor and council passed an ordinance provisionally levying special taxes upon the owners of property within the several sewer districts where such sewers had been constructed. This ordinance was regularly and duly published in the official newspaper of the city on September 8,1883. On Saturday, September 22,1883, and on Monday, September 24, 1883, a notice was published in the official newspaper, giving notice to all property-owners within said sewer districts to appear at a special meeting of the city council to be held on Monday, September 24,1883, at 8 o’clock p. M., to hear all complaints that might be made with respect “to the valuation assessed by the appraisers of any lots or pieces of ground contained” in.said sewer districts. On October 6,1883, another ordinance was passed, finally levying the special taxes upon the property of the lot-owners in said sewer districts, and on October 16,1883, this ordinance was duly published in the official newspaper; and under the laws of Kansas these taxes could not become a fixed and established charge or lien upon the property taxed prior to November 1, 1883, when the tax books are required by law to be delivered to the county treasurer to enable him to collect the taxes. (§85 of the tax law of 1876; Comp. Laws of 1879, ch. 107, §85.)
Now the property-owners had some notice with regard to the taxes assessed against them.- (1) From the city ordinance published September 8,1883; (2) from the direct notice given to them and published September 22 and 24, 1883; and (3) from the city ordinance published October 16,1883; and they had ample time after such notice and before the taxes became a fixed lien or charge upon their property, November 1,1883, to apply to the city council to make corrections or changes in their taxes, or to commence an action in the district court to-enjoin all further proceedings, or for some other sufficient and adequate relief. We cannot say that the notice in this case was wholly and entirely insufficient, and yet it was defective in several particulars. Neither the ordinances nor the notice published in the official newspaper contained any mention of the particular property taxed, or of the owners thereof, and the notice published in the official newspaper was for too short a period of time prior to the special meeting of the city council to hear complaints; and it was further defective in not giving to the lot-owners the privilege of making all the objections which they might have desired to make with reference to the validity or fairness of the special taxes. It gave to them the privilege only of making complaint concerning the valuation of the lots as assessed by the appraisers, and nothing more. None of the objections which the defendants in error, plaintiffs below, now make to the validity and fairness of said taxes, had they any right to make within the terms of said notice. Taking the ordinances and the notices together, however, the combined notice which they gave was probably sufficient to 'render the tax proceedings valid, except for substantial reasons; but for substantia] reasons the taxes might still be void, or voidable — probably only voidable. We shall hereafter consider the other reasons which the defendants in error, plaintiffs below, now urge as grounds for holding that the taxes are void, or voidable.
The defendants in error, plaintiffs below, also claim that the statute authorizing the construction of sewers and drains is unconstitutional, for the further reason that it does not provide for levying taxes with reference to the special benefits resulting from the improvements to the property taxed or to the owners thereof; and they also claim that the taxes were not in fact levied with reference to resulting benefits. The taxes were in fact levied in proportion to the value of the lots taxed, without the improvements thereon. Now as the statute does not prescribe any mode for the apportionment of the taxes, we would think the city would have a right to adopt any mode that would be fair and legal; and we would also think that the mode adopted by the city was fair and legal. Of course it might in particular instances work injustice or hardship, and not be legal or valid; and in all probability there are such instances in the present case; but, looking at it as a mere rule of apportionment, we think it is valid. There are various modes of apportionment, among which are the following: (1) In accordance with the special benefits directly ascertained by assessors or appraisers; (2) in accordance with the value of the lots, without the improvements on them; (3) in accordance with the value of the lots, with the improvements on them; (4) in proportion to the frontage of the lots; (5) in proportion to the superficial area of the lots. The first .would undoubtedly be valid, though it might be difficult to make it practicable. The second we think is also valid as a general rule of apportionment. (Downer v. Boston, 61 Mass. 277; Wright v. Boston, 63 id. 233.) With reference to the other modes, we do not now wish to express any opinion.
The defendants in error, plaintiffs below, also claimed that there was no detailed estimate made by the city engineer, and that the estimates that were in fact made, were not under oath. We think the estimates are subject to some criticism in both of these respects. The aggregate costs for some of the excavations, and for some of the masonry work, do not seem to have been stated in the estimates, and no sufficient data are given- whereby such costs may be ascertained or known; nor does it appear that the estimates were under oath; that is, it does not appear that the city engineer took any special oath with reference to these estimates, which we think is necessary under said § 22; and this we think is not a mere technicality, but, as we shall hereafter see, is a matter of substance.
The defendants in error, plaintiffs below, also claim that power was wrongfully delegated by the mayor and council to the city engineer. Now this does not fully appear, and probably it was not the case.
The defendants in error, plaintiffs below, also claim that the form of the oath taken by the appraisers was not the form required by statute, and was insufficient. Now the statute does not prescribe any form of the oath for the appraisers in this class of improvements, and we see no particular objection to ■ the form of the oath that was taken.
It is farther claimed, by the defendants in error, plaintiffs below, that the taxes levied were in excess of the estimates made by the city engineer, and it is also claimed that the estimates themselves as thus made were fifteen per cent, in excess of the real estimates of the cost of the work — and all this appears to be true from the record. ' The excess of the taxes over and above the estimates made by the city engineer appears to be $5,204.79, and these estimates are in fact fifteen per cent., or something over $6,000, above the real estimates of the cost of the improvements in cash, making the taxes appear to be over $11,000 in excess of the real estimates of the cost of the improvements in cash. The real facts are probably not quite so bad, but still the taxes are very largely in excess of the estimates of the cost of the improvements in cash, at least fifteen per cent., and probably much more. This is all in violation of § 22 of the first-class-city act. That section requires that the estimates shall be in detail and under oath, and that the-cost of the imprqyements shall not exceed the estimates, and that the city shall not be liable for any greater amount than such cost. All of these provisions were partially at least-ignored. Everything connected with this case was done after § 22 was enacted in 1881, and one of the estimates was made, and the work was probably all done, and the taxes were all levied, after said section was amended in 1883; and yet it would seem that the city engineer and the mayor and council ignored the provisions of that section to a very great extent. The legislature evidently intended that the section should be strictly complied with; hence it required that the city engineer should make “a detailed estimate” of the cost of the work, and should make the same “ under oath,” and that the cost of the work should not exceed this estimate. It was evidently the intention of the legislature that the work should not cost the city or the lot-owners more than it was actually worth in cash. Hence this “detailed estimate;” hence this special “oath” of the city engineer; and hence the other rigid and explicit provisions contained in said § 22 with reference to the-cost of the work. All this was ignored by the city authori ties. We think that the city authorities, by ignoring the provisions of said § 22, have rendered the special taxes which they levied on the lot-owners’ property at least voidable, if not void. The case of Gilmore v. Norton, 10 Kas. 491, 508, was decided under a different statute, and can have no application to this case. Besides, the taxes and the cost of the work in that case were for much less than the estimated cost ■of the work.
We think the defendants in error, plaintiffs below, are entitled to their injunction; and 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 brought by Mary T. Strong, a minor about fifteen or sixteen years of age, by B. F. Hendrix, her next friend, against Edgar H. Marcy, to recover the sum of three thousand dollars, as damages for an alleged breach of the following written contract, to wit:
“Enow all men by these presents, That by mutual agreement between B. F. Strong, party of the first part, of Osage City, Osage county, and the state of Kansas, and Edgar H. Marcy, of Osage county and state of Kansas, party of the second part, the party of the first part consents to give over his minor heir and daughter, Mary T. Strong, to the said party of the second part, to rear and educate and control and provide for, as if by adoption at law, as his own child; and the said party of the second part consents to receive and take full charge of the said minor daughter, namely, Mary T. Strong, to rear and educate and control and provide for, as if by adoption at law, as his own child; and the said party of the first part hereby agrees to, and does hereby, relinquish his entire control over said Mary T. Strong to the said party of the second part.
“ In witness whereof, the said B. F. Strong and- the said Edgar H. Marcy have hereunto set their hands, this ninth day of March, in the year of our Lord one thousand eight hundred and seventy-eight. B. F. Strong.
E. H. Maroy.
Witness: B. F. Hendrix.”
The petition of the plaintiff alleges, among other things, that at the time of the making of this contract the plaintiff was about ten years of age; that the contract was made by her father, B. F. Strong, with the defendant, E. H. Marcy, for her sole and separate benefit; that for that purpose her father then and there relinquished all his care, custody and control over the plaintiff to the defendant; that from that time forward up to February, 1883, all parties complied with the terms and provisions of the contract; when the defendant, without any just cause or provocation, drove the plaintiff away from his home and residence, and has ever since refused to provide for her support or education, or to comply with any of the terms or provisions of the aforesaid contract, to her damage in the sum of three thousand dollars. This action was commenced on June 11, 1883. Hence the plaintiff was about that time about fifteen or sixteen years of age.
The defendant demurred to the plaintiff’s petition, upon the ground that it did not state facts sufficient to constitute a cause of action against the defendant, and the court below sustained the demurrer; to which ruling the plaintiff excepted, and now brings the case to this court.
We have no means of knowing the exact point upon which the court below sustained the demurrer, as no brief has been filed nor oral argument made for the defendant in this court. It would seem to us that the demurrer should have been overruled. The contract was made by the plaintiff’s father solely and exclusively for her benefit, and not for his own; and as a consideration for her nurture, education and support on the part of the defendant, her father, at the time, by implication if not in terms, relinquished to the defendant all custody and control over her, all interest in her services, earnings and and wages, and was never to resume the same again, and never to receive any benefit personally from the same or from the contract; and consequently we would think that for any breaches of the contract by the defendant to the plaintiff’s injury, she, the real party in interest, would be a proper person to bring the action therefor, if not the only proper person to bring such an action. It is settled in this state that a person may maintain an action upon a contract made by another for his benefit, although he was not a party to the contract. (Anthony v. Herman, 14 Kas. 494; Harrison v. Simpson, 17 id. 508; Center v. McQuesten, 18 id. 476; K.P. Rly. Co. v. Hopkins, 18 id. 494; Floyd v. Ort, 20 id. 162; Life Assurance Society v. Welch, 26 id. 641, 642; Brenner v. Luth, 28 id. 583.) And where a father has for the benefit of his minor child relinquished all interest in the child's services, earnings and wages, the child himself, by his next friend, may sue and recover for such services, earnings and wages. (Schouler’s Domestic Relations, 345, 370, 371.) Of course the relinquishment in this case of the child's custody, control, services, earnings and wages, was not done under the provisions of the statute, (Comp. Laws of 1879, ch. 67, § 5,) nor was the child adopted by the defendant as provided by statute. (Comp. Laws of 1879, ch. 67, § 6.) But this can make no difference, for the statute does not prohibit such contracts as was made in this case, nor change the rules of law concerning them.
The judgment of the court below will be reversed, and the cause remanded with the order that the demurrer to the petition will be overruled.
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The opinion of the court was delivered by
HobtoN, C. J.:
On March 25, 1884, P. H. Kollock and B. Fanning recovered before a justice of .the peace of Marion •county in thisjstate, a judgment against Melvin Burrows, ag gregating, with costs, $325.30. On June 7,1884, an abstract of the judgment was filed and docketed in the office of the clerk of the district court of said county. On the same day an execution was issued upon the judgment to the sheriff of Marion county against the property of the judgment debtor. This execution was returned unsatisfied, and the judgment still remains unsatisfied. Subsequently to the return of the execution, proceedings were taken before the district judge of Marion county against the debtor, under the sections of the code “in aid of execution,” to compel him to answer concerning his property, which the judgment creditors alleged he unjustly refused to apply toward the satisfaction of their judgment. The judge found that Burrows had, at his examination, upon his person- and under his actual control, money to the amount of $1,000, not exempt by law, and he then ordered him to apply sufficient of said moneys so in his possession toward the satisfaction of the judgment against him. Burrows wholly failed and neglected to comply with the order. Thereupon, he was arrested, brought before the judge, and upon a hearing it was adjudged that he was guilty of contempt in disobeying the order directing him to pay said judgment. It was further ordered that he be committed to the jail of Marion county until he paid the said judgment with interest and costs, and also the costs of the proceedings for contempt, amounting to $26.60.
It is claimed, on behalf of Burrows, that the order of the district judge committing him to the jail of Marion county until he should pay the amount of the judgment of March 25,1884, and the provisions of the code authorizing his examination and commitment, are violative of § 5 of the bill of rights of the constitution of the state, which provides that “the right of trial by j ury shall be inviolate; ” also § 10 of the bill of rights, that “no person shall be a witness against himself;” also, of § 16 of the bill of rights, that “no person shall be imprisoned for debt, except in cases of fraud; ” and also, are obnoxious to the fifth amendment to the federal constitution, that “ no per son shall be deprived of life, liberty or property without due process of law.”
The principal contention is, that Burrows had the right, upon his examination, to have the question of his ability to pay the judgment decided by a jury. In re Grace, 12 Iowa, 208, is cited to support this proposition. Therein, it is decided that under a somewhat similar provision of the Iowa statute, the court has not the power to punish for contempt, without giving the party charged a jury trial. The court, in that case, pronounces the statute under which the proceedings were had offensive to a peculiar provision of the constitution of Iowa in reference to trial by jury, said to have been introduced into the constitution to secure fugitive slaves the right to such trial. Mr. Pomeroy, in his notes in Sedgwick on Statutory and Constitutional Law, 490, says, in reference to this case:
“But .this decision is probably exceptional; for a similar statute exists in many states — in most of those which have adopted the New York code of procedure — and seems to have raised no objection.”
The proceeding in aid of execution, though created by statute, is a proceeding in the action in which the judgment was recovered, after the judgment debtor has had a hearing and trial, and is a substitute for the creditors’ bill formerly used in chancery. The proceeding is a simple regulation of well-established and well-defiued jurisdiction which courts of equity were accustomed to employ. After the decree in a court of equity for the delivery of the property or effects, the debtor, upon disobeying the decree, was adjudged for his contumacy guilty of contempt of the authority of the court. He therefore could be imprisoned so long as he remained in contempt. Obedience, however, to the decree — that is, the delivery of the property — would terminate the imprisonment at any time. The purpose of the statute is to require the delivery of the property of the judgment debtor for the payment of his debts; and if it is made, the debtor cannot be imprisoned. It is only when the debtor has property which he unjustly refuses to apply toward the satisfaction of a judgment, after being afforded the opportunity so to do, that he can be imprisoned. “The imprisonment is not for debt, but for the neglect and refusal to perform a moral and legal duty, the performance resting in his ability.” (Brickell, C. J., in Ex parte John Hardy, 68 Ala. 339.)
It was said in Kimball v. Connor, 3 Kas. 414, that the provision of the bill of rights concerning jury trial does not require every trial to be by jury:
“Nor does it contemplate that every issue which by the laws in force at the adoption of the constitution of the state was triable by jury, should remain irrevocably triable by that tribunal. Trial by jury is guaranteed only in those cases where that right existed at common law. Such is the meaning of the constitutional provision referred to, and in statutory proceedings in chancery, etc., the legislature is fully competent to dispense with the jury.”
Further, in the case of In re Grace, supra, cited by counsel, it was said:
“The failure of the debtor to surrender his property liable to execution to the payment of the judgment might well be such fraud as that, within the meaning of the constitution, he would forfeit his right to claim exemption from imprisonment. Not only so, but if the fraud was once found by a competent tribunal, the correctness of that finding could not be reviewed in another court or by any judge upon habeas corpus.” (The State v. Becht, 23 Minn. 411; Kearney’s Case, 13 Abb. N. Y. Pr. 459; Ex parte Smith, 53 Cal. 204; Ex parte Cohn, 55 Cal. 193; People v. Cowles, 3 Abb. N. Y. App. Dec. 507; The State, ex rel., v. Burrows, ante, p. 10.)
Counsel for petitioner refers to the case of Ex parte John Hardy, 68 Ala. 303, as decisive that the sections of the code under consideration do not authorize imprisonment for debt. That decision was rendered by a divided court, and to us the dissenting opinion of Chief Justice Erickell is the more satisfactory. It was no violation of the constitution to require the judgment debtor to answer, in a civil action, concerning his property, especially as he claimed no exemption on the ground that his answers might criminate himself. Section • 485 of the code reads:
“ No person shall, on examination pursuant to this article, be excused from ansAvering any question on the ground that his examination will tend to convict him of a fraud ; but his answer shall not be used as evidence against him in a prosecution for such fraud.”
We therefore conclude that the provisions of the code, “in aid of execution,” conferring upon the district judge the power to require a judgment debtor to appear before him to answer concerning his property, which he unjustly refuses to apply toward the satisfaction of a judgment recovered against him, and to order any money, or other property in his actual possession and under his control, not exempt by law, to be delivered up and applied toward the satisfaction of the judgment under which the proceedings are had, and to enforce said orders by proceedings for contempt, in case of refusal or disobedience, are not violative of §§ 5,10 or 16 of the bill of rights of the constitution of the state, nor of the fifth amendment of the federal constitution. (Code, §§ 483, 490; The State, ex rel., v. Burrows, supra.)
Counsel calls attention to Bank v. Bank, 6 Ohio St. 254, as establishing the doctrine that the district judge has no authority to require a judgment debtor to deliver over money in his hands and under his control to satisfy a judgment rendered against him. That case merely decides upon this point that no peremptory order to pay the debt or to deliver the property can be made against a third person or a stranger to the original judgment. In such a case, the judge is to order the property or debt due the judgment debtor to be applied to the satisfaction of the judgment, thus fixing the right of the judgment debtor, so that when possession of the property is obtained or the debt collected by a sheriff or receiver, under § 491 of the code, the proceeds may be applied to the discharge of the judgment.
It is assei’ted that as Burrows was required to pay the orig inal judgment, the order of commitment is void, because greatly in excess of the judge’s power to punish for a contempt. Section 2, ch. 28, Comp. Laws of 1881, is cited as limiting the powers of judges at chambers to punish for contempt, to a fine not exceeding $100 and imprisonment. "VVe think the sections of the statute “in aid of execution” confer the power upon the district judge to imprison a judgment debtor who unjustly refuses to apply money in his possession and under his control, n.ot exempt by law, toward the satisfaction of a judgment rendered against him, after being afforded the opportunity so to do, so long as he willfully disobeys the order of the judge. (Kearney’s Case, supra; People v. Cowles, supra.) In this case, Burrows is imprisoned simply and wholly because he will not deliver up money in his possession and under his control in payment of the judgment. He can terminate the imprisonment at any time by the mere exercise of his own will; that is, by satisfying the original judgment and costs, and the costs of the supplementaiy proceedings — all of which, under the findings of the district judge, he has the ability to do.
The claim that the examination of the judgment debtor outside of the county of his residence renders the proceedings void, is not well taken; because it appears from the record that the examination outside of Marion county was had with the consent of all the parties, and that subsequently the hearing of the case was renewed in Marion county, where all of the evidence taken at the examination was read and considered, and the order for the payment of the judgment was made in the county where the debtor was served and resided. (The State, ex rel., v. Burrows, supra.)
It is finally alleged that the order of commitment is illegal, because the judge did not reduce all his orders to writing, together with the minutes of the proceedings, and file the same with the district clerk of Marion county. It appears from the evidence that the terms of the statute were complied with, excepting that the clerk failed to enter upon his execution docket the same. This omission or irregularity of the clerk in no way affects the validity of the commitment.
The petitioner must be remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The only question involved in this case is, whether the court below erred or not in vacating and setting aside a sheriff’s sale of certain real estate for the reason that the notice of the sale had not been published as required by law. The question with regard to the regularity of the sale was raised in the court below by a motion on the part of the plaintiff to confirm the sale, and a motion on the part of the •defendant to set aside the sale. The court below overruled the first motion. and sustained the second, and the plaintiff now alleges error. It appears from the record that the notice •of the sale was properly published for five consecutive weeks in a weekly newspaper published in the county in which the sale was to take place; that the first publication of the notice was on March 15,1884, and the last on April 12,1884; that the notice was published in each issue of the newspaper during that time; that the sale was advertised to take place on April 19, 1884, at 2 o’clock in the afternoon, and that it did in fact take place at that time. The only claim of irregularity presented in this court, or in the court below, and the only ground upon which the sheriff’s sale was set aside, is, that the notice was not published in the issue of the newspaper of the date ■of April 19, 1884, that being the regular day for the issue of the newspaper. Whether the newspaper was in fact published on April 19,1884, or not, and if published on that day, whether it was published before or after 2 o’clock in the afternoon, is not shown; but as all the presumptions are in favor of the •correctness of the decision of the court below, we shall assume that the newspaper was published prior to 2 o’clock in the afternoon of April 19, 1884; and, with this assumption, was the publication of the notice of sale irregular or materially irregular, or was it sufficient? We think it was materially irregular, and that the sale was properly set aside because thereof. In sales of real estate upon execution, a notice of the sale as published in the newspaper should be given for at least thirty days before the day of sale, and should be continued in each successive issue of the newspaper up to the time of the sale. (McCurdy v. Baker, 11 Kas. 111; Whitaker v. Beach, 12 id. 492; Treptow v. Buse, 10 id. 170.) And where the notice is not so published, the sale may be set aside upon motion, at any time before confirmation.
Now as the sale wasa to take place and did take place at 2 o’clock in the afternoon of the regular day for the issue of the newspaper in which the notice was published, and as the notice was not published in that issue, and as the court on proper motion and before confirmation set aside the sale for that reason, and as all presumptions are in favor of the correctness of the decision of the court, it must be presumed that the newspaper of the date of the sale was published prior to the time of the sale, and therefore that the sale was properly set aside.
The order of the court below setting aside the sale will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
JOHNSTON, J.:
This is an action to recover upon a coupon note for the sum of $81, together with the interest thereon from maturity. It was first tried before a justice of the peace of Miami county, and appealed therefrom to the district court, where, at the May term, 1883, it was again tried with a jury, and a verdict and judgment given in favor of the defendant. The defendant had obtained a moi’tgage loan upon his farm, and the note in question was for an interest installment upon the mortgage bond which he had made. The execution of the mortgage bond and the coupon note was admitted by the defendant. The defense which he made was. that of payment. He claimed and testified that the payment had been made on or about October 1, 1879, to E. M. Shaw, who it is conceded had at that time, authority to receive it. It appears that the plaintiff, S. G. Bigelow, jr., and F. M. Shaw were partners in the banking and loan business in Paola, Kansas. The banking business was carried on by them under the firm-name of Bigelow & Shaw, and the business of negotiating loans on real estate was conducted under the name of E. M. Shaw & Co. The loan department of the business was under the special charge of Shaw, and the collection of interest upon the loans made was principally attended to by him. The partnership existed until about January 1, 1880, but the business of the firm was not settled up until the latter part of 1881. In addition to the testimony of the defendant regarding the payment, Mr. Shaw was pr'oduced as a witness, and testified that the defendant had paid the interest coupon to him about the first of October, 1879; that shortly after the payment was made, F. M. Shaw & Co., in accordance with their custom, remitted the money paid to the eastern parties who held- the coupon note, and for whom they were acting. The bookkeeper of the firm of F. M. Shaw & Co. was produced as a witness in behalf of the plaintiff, and stated that no credit had been entered in the books for the money claimed to have been paid, but that Shaw, had told him that the note had been settled and paid. The plaintiff on bis own behalf testified that he found the coupon in the bank safe in January, 1880, and that in May of that year he asked the defendant to make payment thereof, when he says the defendant admitted it had not been paid, and asked for further time in which to make payment; but that at a subsequent time, when he again called his attention to it, the defendant stated that it had been paid to Shaw while he was a member of the firm of F. M. Shaw & Co. He was then asked whether, in the settlement of the partnership business with Shaw, he had relied upon the statements of the defendant that the note had not been paid. This was objected to by the defendant, and excluded by the court. Of this ruling the plaintiff complains.
This testimony might without impropriety have been admitted, but we do not regard it to have been very material to the issue in the case. The sole question to be tried was, whether the defendant had paid the note to F. M. Shaw & Co., at or about the time it came due, which was October 1st, 1879. It was conceded that the partnership between Bigelow and Shaw existed then, and for some time thereafter, and that Shaw had authority to receive payment at the time it was claimed to have been made to him. The testimony respecting the admissions and representations claimed to have been made by the defendant, in May, 1880, and at later times, went to the jury without objection. The only purpose of the testimony excluded, was to create an estoppel against the defendant by reason of these admissions. If thé note was paid to Shaw by the defendant,' as claimed, neither Shaw nor the plaintiff would have any right in law to rely on a subsequent statement by the defendant, that it was still due and owing. Shaw certainly could not have been misled by such a statement, because he would have known that it was untrue, and the knowledge which he possessed in respect to such payment was alike chargeable to his partner, the plaintiff. Notice or knowledge given to one partner in respect to a matter within the scope of their partnership business is notice to all the members of the firm, and therefore if the defendant actually paid the note, as testified to by Shaw and himself, and if it were granted that he had made admissions of non-payment as plaintiff states, still it would not give rise to an estoppel, nor preclude the defendant from thereafter denying the truth of such admissions. On the other hand, if the note was not paid as defendant claims, the plaintiff would then be entitled to recover, regardless of whether or not he may have relied upon the admissions of the defendant. On that theory of the case, the reliance which he may have placed upon the defendant’s statements, or the notions he may have formed by reason of them, were immaterial and incompetent.
At the close of the testimony the plaintiff asked the court to instruct the jury as follows:
“ If the jury believe from the evidence that Mr. Henniger, the defendant, represented and stated to the plaintiff that the coupon note sued on wras not paid, and that Mr. Bigelow, the plaintiff, settled with F. M. Shaw, his former partner, relying upon said statement and representations as being true, then the said defendant Samuel Henniger is estopped' from denying that said statements are true.”
This was refused, and an exception taken. Instructions should be based upon the evidence. As there was no testimony before the jury that the plaintiff had relied upon the truth of the representations made by the defendant respecting the non-payment of the note, there was no error in refusing to give the instruction. It may be remarked that it was also objectionable because of indefiniteness, in that it failed to state the time when the representations were made. A statement by the defendant, such as is referred to in the instruction, made prior to the maturity of the note and before the defendant claimed to have paid it, could not operate; as an estoppel, and yet it comes within the terms of the instruction as framed and asked; so that in any view that might be taken of the case, the instruction was properly refused.
Complaint is also made that the court refused to require the jury to give positive answers to two questions that had been submitted, and which the jury stated they were unable to answer. But in the view we have taken of the case, the questions related to facts that were immaterial, and even though there was testimony upon which the jury could have given positive answers, still the refusal of the court to compel answers to such questions cannot be held erroneous.
We find no error in the record, 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
YaleNTINE, J.:
On April 4,1883, an action was pending in the district court of Bourbon county, wherein C. F. Drake was the plaintiff and the First National Bank of Fort Scott, Kansas, was the defendant. On that day the defendant filed two motions, one asking the court to require the plaintiff to amend his amended petition so as to make it more definite and certain in certain particulars, and the other asking the court to require the plaintiff to further amend such petition by striking out certain alleged surplus and redundant matters therein contained. On May 23,1883, these motions were heard, and both of them were partially sustained and partially overruled, and the plaintiff was required to amend his amended petition so as to make it correspond to the orders of the court made on said motions, and sixty days were given him within which to so amend. The plaintiff, however, did not amend in any particular, and for that reason the court below, at the September term, 1883, dismissed his action. The orders of the court below partially sustaining the defendant’s motions and dismissing the plaintiff’s action were duly excepted to by the plaintiff, and to reverse these orders the plaintiff, as plaintiff in error, on August 12, 1884, brought the case to this court.
It is conceded by the plaintiff that if the motions were properly sustained, the court below committed no error in dismiss ing his action; but it is claimed by him that the motions were erroneously sustained. The plaintiff, in his brief in this court, states that the only question now submitted for determination is, whether or not the said motions were rightfully sustained. The defendant, however, does not admit that this is the .only question, but suggests that there are still others to be determined. • We shall consider only the question presented by the plaintiff; for even upon that question we think the decision of this court must be in favor of the defendant. This question, however, involves several others, some of which we do not think will require any consideration. For instance, we do not think that it is necessary to enter into any consideration as to whether the court below erred, or not, in requiring the plaintiff to so amend his amended petition as to make it more definite and certain in certain particulars; for a decision of the other questions involved in the case will require an affirmance of the final decision of the court below, in whatever way this question of definiteness or certainty in the petition, or want of the same, might be decided; and besides, the consideration of this question would involve the consideration of many difficult and intricate questions which may never again arise. The principal question which we shall consider is, whether the court below erred in requiring the plaintiff to amend his amended petition by striking out certain alleged surplus and redundant matters.
The plaintiff's action is founded upon the following instruments in writing, to wit:
“$5,500. The First National BaNK, 1
Fort Scott, KaNsas, Oct. 18, 1880. j
“ C. F. Drake has deposited in this bank fifty-five hundred dollars, payable to the order of A. A. Harris, trustee, on return of this certificate properly indorsed.
(Signed) O. F. MartiN, Assistant Cashier.”
“When the First National Bank of Fort Scott, Kansas, at any time after November 1, 1880, and up 'to December 1, 1880, shall convey by good and sufficient quitclaim deed or deeds, free and clear of all tax liens and incumbrances, including the taxes of 1880, all the real estate included in the real-estate account of said bank, and the same referred to in an agreement made September 25, 1880, by and between W. Chenault and C. E. Drake, then A. A. Harris, trustee, shall indorse the same to said bank.
“But if said bank shall not properly and legally execute and deliver such deed or deeds as is herein mentioned, as to such real estate, then said Harris, as trustee, shall indorse this • certificate and deliver the same to C. F. Drake, who in that event shall be authorized to receive the money thereon.
“This stipulation and agreement consented to by said Drake, said Chenault, and said bank, all of whom agree to carry out its provisions so far as the same may devolve upon them respectively. This, October 18, 1880.
(Signed) C. H. OsbuN, Cashier.
W. Cheeault.
C. F. Drake.”
The plaintiff, in his amended petition, alleges in substance that at the time when these instruments were executed W. Chenault was the president of the First National Bank, C. H. Osbun was the cashier, and C. F. Martin was the assistant-cashier; that the second instrument was attached to the first, and was a part thereof, or in other words, that the two instruments in effect constituted only one instrument; that on December 1, 1880, the real estate therein mentioned was of the value of $9,500; “that on the first day of December, 1880, and prior and subsequent thereto, he [the plaintiff] demanded of the defendant that it execute and deliver to,him the deed or deeds to said lands and real estate, as in said instrument agreed, and that said Harris, as trustee, offered to indorse the said certificate of deposit to the defendant; that defendant could have made the deed or deeds as.agreed, but, wholly disregarding its obligation and agreement, it failed and refused so to do, and conveyed the same to other and different parties. Wherefore, the plaintiff was damaged in the sum of $4,000, for which he prays judgment against the,defendant.”
Nothing is said in the plaintiff’s pleadings as to what had become of the certificate of deposit — as to whether it had been assigned, or not; or collected, or not; or who held it or owned it; or'whether at the time when the bank sold and conveyed tbe land in question to other parties it was then in such a condition or in such hands that it could have been assigned or delivered by either Harris or Drake to the bank. The plaintiff has carefully refrained from alleging that he was the owner or holder of the certificate of deposit, or even that Harris still held it; but for the purposes of this case we shall assume that after the bank’s failure and refusal to execute the deed or deeds to Drake, Harris indorsed and delivered the certificate of deposit with the other instrument to Drake, and that the two instruments still remain in Drake’s possession, unsatisfied, uncollected, and owned by him.
The supposed irrelevant and redundant matter contained in the petition is as follows:
“At that time there were some taxes, the exact amount of which is not known to the plaintiff, due on said lands and real estate, and which were a lien thereon. The defendant desired an opportunity of paying or compromising said taxes before it should finally make the deed or deeds to plaintiff, and it was agreed by and between plaintiff and defendant that the defendant should have such opportunity. At that time the plaintiff had on deposit some eight or nine thousand dollars of his money with the defendant. The parties mutually desired some evidence that each would perform his and its part of the contract of sale, and it was mutually agreed that $5,500 of the money which plaintiff had on deposit with the defendant should be placed to the credit of A. A. Harris, as trustee, to remain with the defendant according to the terms of a certain certificate of deposit then issued and executed by the defendant for that purpose, . . . the plaintiff giving to the defendant his check for said amount of $5,500. . . Plaintiff says that said instrument and agreement was intended by and between the parties thereto to be an agreement and contract on the part of the defendant to convey to the plaintiff all lands and real estate therein referred to, on or before December 1, 1880; and such was understood and agreed tobe its legal purport and effect by the plaintiff and defendant at the time of its execution.”
This matter is evidently redundant and irrelevant — mere surplusage. The petition is no better with it than without it, and the court below did not err in ordei'ing it to be stricken out. The plaintiff does not ask to have the written instruments, or either of them, or the contract embodied therein, reformed, and alleges no grounds of accident, or surprise, or mistake, authorizing the reformation of such contract, nor any matters that could possibly change the meaning of its terms in any respect whatever. The parts stricken out are merely averments of non-essential facts of what the parties intended and desired, and why they made the contract, and why they made it as it was made, and what the parties understood and agreed to be its “legal purport and effect.” Such averments cannot change the terms of the written contract, nor affect the rights of the parties thereunder. The rights of the parties are governed by the terms of the written contract. The court, however, in its discretion might have permitted these aver-ments to remain as a part of the petition; but also in its discretion it had a right to order them to be stricken out; and as it had such right and made such order, and as the plaintiff failed to obey the order, the court undoubtedly had the right to dismiss the action for that reason, as it did. The order requiring the plaintiff to strike out these irrevelant matters was a separate and distinct order, and the plaintiff could have obeyed it without obeying any other order of the court. But the plaintiff failed and refused to obey this order, or any part thereof, and failed and refused to obey all orders; and for that reason his case was dismissed, and he must now abide the consequences.
The judgment of the court below dismissing the plaintiff’s action will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Harman, C.:
This case is here on an appeal by the city of Dodge City from an order of the district court dismissing an action which originated in the police court of that city, a city of the second class, wherein it is stated the appellee was convicted of the offense of driving a motor vehicle while intoxicated in violation of city ordinance.
The following proceedings occurred in the district court:
“The Court: This is Case No. 19,131, is that correct, City of Dodge City v. Charles T. Day?
“Mr. Myers: Correct, Your Honor. The City of Dodge City appears by the City Attorney, Douglas B. Myers.
“Mr. Shultz: The defendant Charles T. Day appears in person and by Donald E. Schultz, his attorney.
“The Court: The Court on examining the file in this case finds that there is no sufficient complaint shown in the file. Does the City propose to amend its complaint at this time.”
“Mr. Myers: The City does not, Your Honor. The City takes the position that under Section 20-25 of the Code of the City of Dodge City, Kansas, 1956, that the complaint as abstracted is sufficient.
“Mr.'Shultz: If it please the Court, unless the City intends to file'a complaint under which the accused can be charged and properly instructed before the jury, we would move to dismiss.
“Mr. Myers: Now Your Honor, prior to consideration of counsel’s motion, and for the record, I would like to state to the Court that in the opinion of the City this case is a trial as before a police court; that the ordinances and rules governing trials in police court control here. As a matter of fact, the record contains no demand for trial by jury. Therefore, we urge the Court that the defendant is not at this time entitled to a trial by jury; secondly, the complaint was properly brought initially under the Ordinances of the Municipality of Dodge City, which we contend are sufficient here, and we ask .the Court to proceed to trial to the Court.
“The Court: Well, the matter as to whether he is entitled to a jury or not is a matter that would not come up in case the Court quashed the proceeding on the basis of there being no proper complaint before the Court. The record here shows that the complaint was on the oath of the ‘PD’, which I suppose is police department, and not any particular individual, and it doesn’t recite the individual’s name except in the heading of the transcript from Police Court, and it merely refers to the ordinance as ‘VCO 1451’ and the initials or letters ‘DWT, which is not in the language of the ordinance or any thing but just colloquialism or jargon, and therefore the Court will have to quash this action unless the City wishes to file an amended complaint setting forth the complaint in specific terms.
“Mr. Myers: Will the Court set a time for the filing of an amended complaint, if it is the decision of the City to so file?
“The Court: It will have to be done immediately.
“Mr. Myers: The City will not file an amended complaint, Your Honor.
“The Court: Case dismissed.
“Mr. Shultz: Thank you, Your Honor.”
In its formal order dismissing the action the court found that “no sufficient complaint is on file with the court.”
The record before the district court, purportedly a transcript of the proceedings before the police court, can best be understood by reproducing it as an appendix hereto.
Appellant first urges that the trial court erred in its finding that the complaint was not sufficient in that an oral complaint is proper under the applicable city ordinances and also under our statutes.
Trial in a police court of a city of the second class is upon the complaint alleged against the defendant (K. S. A. 14-808) and it is the making of the complaint alleging a violation of a municipal ordinance which gives that court jurisdiction.
K. S. A. 14-804 provides:
“All prosecutions for violating any city ordinance shall be entitled ‘The city of _ against _’ (naming the city and the person or persons charged), and the police judge shall state in his docket the name of the complainant, the nature or character of the offense, the date of the trial, the names of all witnesses sworn and examined, the finding of the court, the judgment or fine and costs, the date of payment, the date of issuing commitment, if any, and every other fact necessary to show the full proceedings in such case.
“The complaint, when made by the marshal, assistant marshal or regular policeman against any person arrested without process and in custody, need not be in writing; but when the accused is not in custody, the complaint shall be in writing and sworn to, before a warrant be issued for his arrest. In no case shall a judgment of conviction be rendered except upon sufficient legal testimony given on a public trial or upon a plea of guilty made in open court.” (Our italics.)
Thus we see that by express statutory authority a written complaint is not required in those cases in which a person has been arrested by a police officer without process and remains in custody of such officer, and the result is that in such situations an accused may be tried in police court upon verbal complaint.
On an appeal to district court from a conviction in a police court the district judge for the time being is substituted for the police judge and in effect sits as the police judge. (City of Fort Scott v. Arbuckle, 165 Kan. 374, 196 P. 2d 217.)
From all this does it necessarily follow that the district court in the instant case erred in finding that “no sufficient complaint is on file with the court”? We think not. We should keep in mind we are not here concerned with the nature or the validity of the arrest in this case, nor the manner of prosecution in the police court; we are concerned only with the propriety of the action of the district court. All the district judge had before him was the document appended hereto. He commented on its nature and little can be added to those comments. The document speaks for itself. The most that can be said for it is that it is a transcript of the purported record of the proceedings required to be kept in the police court. Insofar as stating what the alleged offense in the district court was, whether orally complained of or otherwise, it is totally deficient. It simply did not state what the complaint was or what the ap pellee did that constituted the alleged offense. In other words, the transcript contained no complaint, there was no complaint before the trial court, and the trial court in effect so ruled. It should be noted that on an appeal of a criminal prosecution for violation of a municipal ordinance there is trial by jury unless expressly waived by appellant therein (K. S. A. 20-301), which necessarily alters district court procedure from that used in police court. It is difficult to see how the trial judge, about to commence a jury trial for an offense concerning which he knew nothing from the file before him, could have held otherwise. Quite properly, he offered the appellant the opportunity to supply the deficiency which right it had pursuant to K. S. A. 12-1101, which provides:
“In all cases of appeals to the district court from the judgments of police judges of cities of either the second or the third class, if, on the trial of the cause in the district court, the complaint shall be quashed or set aside for insufficiency or for any other reason, the same may be amended, or a new complaint filed, in like manner as in appeals from justices of the peace.”
Appellant next urges that appellee waived any objection to the form of the complaint by giving bond for his appearance in police court and in giving bond for his appearance in his appeal to the district court, citing the cases of State v. Dye, 148 Kan. 421, 83 P. 2d 113; City of Wichita v. Hibbs, 158 Kan. 185, 146 P. 2d 397; State v. Barry, 183 Kan. 792, 332 P. 2d 549. In the Dye case there was a written sworn complaint. Defendant waived a preliminary hearing on a charge of grand larceny and gave bond for his appearance in district court, where he was convicted in a jury trial. Thereafter defendant made some objection to the complaint. In disposing of it, this court simply stated any insufficiency in the complaint was waived when defendant gave bond for his appearance at district court. It should be noted in connection with this statement that trial in district court upon a felony is upon an information, and not the complaint which merely initiates the proceedings.
In the Hibbs case the defendant was arrested at the scene of an accident, there was an oral complaint made in police court by the arresting officer, the defendant posted an appearance bond, and was subsequently convicted in the police court. He thereafter made an appeal bond to the district court. In the district court he made some objection to the verification of the complaint, the exact nature not being stated. This court, citing the Dye case, stated that any defect in the verification of the oral complaint as made was waived by defendant when he gave bond for his appearance. The court specifically pointed out that the record did disclose the making of an oral complaint on oath. In the Barry case it was held that the action of a county court in failing to affix its seal to the original complaint and warrant in a criminal action was waived by a defendant when, without having objected thereto, he gave a bond for appearance in the county court and/or furnished a bond for appeal to the district court. It is readily seen that in each of the cases cited by appellant there was in fact a complaint (or information) on file in the district court, and the principle of waiver was applied as to mere irregularities. Something was on file on which intelligent action could be taken and trial had. Here there was nothing, as we have heretofore indicated, and we think the principles enunciated in the three cases relied upon by appellant should not be • extended beyond the factual situations therein set forth, and cannot be made to apply here.
In Johnson v. City of Winfield, 48 Kan. 129, 29 Pac. 559, it was stated:
“While some latitude must be allowed in the construction of complaints filed in the police court charging persons with a violation of city ordinances, all the common safeguards and ordinary requirements of criminal pleading ought not to be entirely disregarded." (p. 130.)
A fortiori ought this apply to procedure in district court.
We hold that a defendant in entering into recognizance for his appearance in district court upon an appeal from a police court conviction does not thereby waive the necessity for a complaint, written or otherwise, to be filed or made in some manner in the district court upon trial of the appeal.
Finding no error in the trial court’s order, we affirm.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
JOHNSTON, J.:
It is agreed that the only consideration for the insurance policy in suit was the premium note of fourteen dollars. In the policy, as well as in the note, it was expressly stipulated that a non-payment of the premium note at maturity would render the policy void, and that the insurance company should not be liable for any loss occurring during the continuance of such default. The note had been due and unpaid for twenty days prior to the happening of the fire which destroyed the property insured, and payment had not been made at the commencement of this action. That the provision prescribing a forfeiture of the policy in case of the failure to pay the premium note when it became due was reasonable and just, and a contract the parties were capable of making, cannot be denied. The premium is the considei’ation that induces the insurer to assume the risk; its prompt payment is essential to the success of the insurance business, and necessary to enable insurance companies to comply with the contracts entered into with their patrons. To promote punctuality, in the payment of premiums, and enable them to meet their engagements, insurance companies usually contract with the assured that a neglect to pay the premium or premium notes when they fall due, will, if a loss occurs during the default, operate as a forfeiture of the insurance-money. In a policy containing a stipulation of this character, time is material and of the essence of the contract, and a failure to make payment at the time therein agreed, where there is no waiver of that condition of the policy, will absolve the insurance company from liability. (Critchett v. American Ins. Co., 53 Iowa, 404; McIntire v. Michigan State Ins. Co., 17 N. W. Rep. 781; Shake v. Hawkeye Ins. Co., 44 Iowa, 540; Garlick v. Mississippi Valley Ins. Co., 44 id. 553; Greeley v. Iowa City Ins. Co., 50 id. 80; Williams v. Albany City Ins. Co., 19 Mich. 451; New York Life Ins. Co. v. Statham, et al., 93 U. S. 24; Wheeler v. Connecticut Mutual Life Ins. Co., 82 N. Y. 543; Klein v. Ins. Co., 104 U. S. 88.)
The counsel for defendant in error are not, as we understand them, opposed to the validity or justness of such a contract, but they insist that there was no default; that the assured was not negligent, but that by the act of God it was rendered impossible for the insured to comply with his contract. They argue that the neglect was on the part of the insurance company in failing to present and prove up the premium note as a demand against the estate of J. L. Daly, deceased, which made it impossible for the administratrix, or anyone interested in the insurance policy, to pay the note. The claim is, that under our statutes no demand against any estate can be allowed or paid until the claimant first makes oath in open court, or files an affidavit with such demand, of its validity and justness; and that the insurance company having failed in this respect, the administratrix of the estate was absolutely prohibited from paying the premium note. This, then, is the excuse given for non-payment. We must briefly inquire of its sufficiency. It will be noted that the payment of the premium upon this policy was a condition, the performance of which was necessary to the continued liability of the insurance company. Under the rule invoked by counsel for defendant in error, it must appear that the thing to be done, or the condition to be performed, could not by any means have been accomplished, either by the insured or by any other person for him. As a general rule, where a person expressly contracts to do an act lawful and possible at the time, an inevitable accident or other unforeseen contingency not within his control, will not discharge him from the obligation of his contract, or relieve him or those claiming through him from the performance of its conditions, because such accident or contingency might have been provided against in the contract. If the payment of the premium note could have been properly made by .the administratrix, or by some one beneficially interested in the policy and in the performance of its conditions, such persons at least cannot be. relieved from the consequences of a default. (Beebe v. Johnson, 19 Wend. 500; Wheeler v. Connecticut Mutual Life Ins. Co., 82 N. Y. 543; Evans v. United States Life Ins. Co., 64 id. 305; Roehner v. Knickerbocker Life Ins. Co., 63 id. 150.)
Was the performance of the condition an impossibility iu this case? We think not. The duty of paying the premium note did not devolve upon the administratrix, but for reasons other than those stated by her counsel. The plaintiff below, in her character as administratrix, had no interest in the insurance-money, nor control over it. If it had been recovered it would not have been assets of the estate subject to the claims of creditors, nor to distribution under any law of the state. The property insured was exempt to the widow and children of the deceased; the dwelling house was occupied as a residence by Daly and his family at the time the policy was issued and until his death in August, 1883, and continued to be occupied by his widow and children after his death until the occurrence of the fire, on December 21, 1883. By the provisions of our statute—
“A homestead . . . occupied by the intestate and his family, at the time of his death, as a residence, and continued to be so occupied by his widow and children, after his death,. together with all the improvements on the same, shall be wholly exempt from distribution under any of the laws of this state, and from the payment of the debts of the intestate, but shall be the absolute property of the said widow and children.” (Comp. Laws 1879, ch. 33, § 2.)
It is also provided that—
“In addition to her portion of her deceased husband’s estate, the widow shall be allowed to keep absolutely for the use of herself and children of the deceased, all personal property of the deceased which was exempt to him from sale and execution at the time of his death.” (Comp.Laws 1879,ch. 37, §49.)
As before stated, all of the property embraced in the policy in question was exempt. Within the policy of our laws upon the question of exemptions, and the liberal interpretation given them, we think the insurance-money paid as compensation for the loss of exempt property stands in place of that property. The policy in question contained a clause providing that the insurance company had the option, in case of a destruction of the property by fire or lightning, to rebuild and replace it. If it was so replaced, the widow and children would be entitled to enter upon its occupancy and hold it as a homestead exempt from the claims of any of the creditors of the deceased. But in case the company fails to exercise the option of rebuilding the property, it would seem that for a reasonable time at least, the money paid as compensation for the loss of such exempt property would also be exempt. (Mitchell v. Milhoan, 11 Kas. 617; Houghton v. Lee, 50 Cal. 101; Probst & Hild v. Scott, 31 Ark. 652; Cooney v. Cooney, 65 Barb. 524; Strouse’s Executor v. Becker, 44 Pa. St. 206; Thompson on Homesteads and Exemptions, §§ 750, 734.)
Here, however, the property insured, upon the death of J. L. Daly descended to his widow and children, and absolutely vested in them and was subject to their disposition. And as we have seen that the insurance-money paid for the loss of their property would also vest in them, it follows that they alone were interested in the contract of insurance, and they alone could be affected by a failure to perform the condition of the contract. If they desired to avail themselves of the benefits of the policy, it was their duty, and not that of the administratrix, to have kept it alive and to comply with the conditions of the policy to be performed by the insured. There was no obstacle to prevent them from complying with this condition; and within the rule heretofore stated, they cannot avoid the consequences of their default.
The question raised by counsel for defendant in error, that payment of the premium note could not be made by the ad-ministratrix because of the failure of the insurance company to present and prove up the note as a demand against the estate, is therefore not in the case.
In view of the conclusions we have reached, the other question raised by plaintiff in error, as to who was the proper party to sue to recover upon the policy, becomes of no importance. It follows from what has been said, that the action might have been brought by the widow and children, as they were beneficially interested in the policy. As the contract of insurance was made with J. L. Daly, his executors, administrators and assigns, it is claimed that the administratrix alone can sue. If suit can be maintained at all by the administratrix, it can only be as trustee of the widow and children of the deceased, who were alone interested in the fund sued for, (Civil Code, §28;) but whether it can be brought in the name of the ad-ministratrix, we need not and do not now decide.
The judgment of the district court will be reversed.
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The opinion of the court was delivered by
VALENTINE, J.:
This was an action in the nature of ejectment, brought by the Atchison, Topeka & Santa Fé Eailroad Company against Elizabeth Fearns, to recover the south half of the southeast quarter of section 21, in township 20 south, of range 8 east, in Chase county. Before the final trial of the case, Elizabeth Fearns died, and the action was revived against her heirs, Chaifies Fearns and Catherine Gleason. The final trial was by the court, without a jury, and the court, after delivering an opinion in the case, found generally in favor of the plaintiff and against the defendants, and rendered judgment accordingly; and the defendants now bring the case to this court for review.
A preliminary question is raised in this court. It is claimed that amended pleadings were filed in the case; and that they have not been brought to this court, and therefore that this court cannot tell what the issues were in the court below, nor whether the court below committed any material error, or not.
. We do not think, however, that it sufficiently appears that amended pleadings were filed in the court below, or that the original pleadings were amended further than to substitute Charles Fearns and Catherine Gleason as the defendants, in the place of Elizabeth Fearns, the original defendant. This is as far as the blank amended pleadings found in the record show, and they certainly do not change the original issues in the case. Besides, the case was tried in the court below precisely as though the issues as made by the original pleadings were still the issues in the case. The most of the facts were agreed to, and nearly all the evidence was introduced without objection; and all these facts, and all this evidence, and the opinion of the court below, indicate that the parties on both sides believed that the issues on tbe trial were just what they were in fact under the original pleadings; and the original pleadings have been brought to this court, and are now before us. Besides, it is well known that the pleadings in ejectment do not usually state the facts in detail, but usually state them in the most general terms. The petition usually alleges, in general terms, ownership and right of possession on the part of the plaintiff, and wrongful detention on the part of the defendant; and the answer is usually a general denial. It is our opinion that no amendments were made to the original pleadings, fui’ther than to substitute the names of the heirs of Mrs. Fearns for her name. And, entertaining this opinion, as we do, we shall decide the case upon its merits.
The facts of the case appear to be substantially as follows: In 1863, and prior and subsequent thereto, the land in controversy was a portion of the public domain of the United States, subject to homestead entry, preemption, etc. In the early part of January, 1868, Patrick Ryan settled upon and occupied the land in controversy, intending to procure the same under the homestead laws of the United States. Afterward, and on January 13,1868, he attempted to make a homestead entry of such land, at the United States land office at Salina, but in fact and through mistake made an entry of another piece of land. On June 9, 1869, Lucius Manly filed a declaratory statement for a preemption entry of the same land which Ryan had intended to enter, alleging a settlement thereon, on January 8, 1869. On June 30, 1869, the plaintiff railroad company definitely located its railroad opposite the land in controversy, and within less than ten miles thereof, and became entitled to the same under the congressional land grant to the state of Kansas for railroad purposes, of March 3, 1863, (12 U. S. Stat. at Large, 772,) provided the homestead and preemption entries of Ryan and Manly were both illegal and void; but the railroad company did not become entitled to such land if either of such entries was valid. Hence the principal question involved in this case is, whether either of such entries was valid, or not. On July 9, 1869, Ryan filed an affidavit in the local land office, setting ■ forth, that when he filed his homestead application he intended to include therein the tract of land in controversy, but that the same was accidentally omitted from his papers; that he had cultivated and improved the tract named, and that Manly’s filing was not in good faith, and asked to be allowed to amend his application. He- had, in fact, made lasting and valuable improvements on the land. Upon a hearing between these parties, in September, 1869, Manly’s filing was canceled, and Ryan was allowed to amend his entry so as to include the land in controversy. On November 3, 1869, an order of the United States land office withdrawing supposed government lands, including the land -in controversy, from market, on account of the said act of congress of March 3, 1863, and the company’s definite location of its railroad opposite such lands, was received at the local land office. Ryan continued to occupy- the land, and to cultivate and improve the same, up to about June 15,1870, when he abandoned the Same, and on a subsequent contest between himself and A. S. Sharp, in the local land office, it was held that Ryan had abandoned his claim, and his entry was canceled on December 6,1870. On October 10, 1871, Elizabeth Feaims filed a declaratory statement, alleging' settlement on the land on August 13,1871; and on October 14,1871, she made a homestead entry for the- land.- On February 2,1874, it was held by the commissioner of the general land office that Ryan’s entry was not valid at the date of the definite location of the company’s railroad, and that such entry did not take the land out of the grant of lands to the state -of Kansas for railroad purposes, and therefore that Mrs. Fearns’s entry was not valid; and on July 28-, 1874, her entry was canceled, and on April 13, 1875, the land was certified to the state of Kansas for the benefit of the said railroad company, and on June 21, 1875, the land was patented by the state of Kansas to the railroad company.
All the foregoing proceedings seem to have been ex parte, and at the instance of the railroad company only, and Mrs. Fearns was not a party thereto. ■ Afterward Mrs. Fearns ap plied to the local land office for a reinstatement of her homestead entry, and made proof of her compliance with all the provisions of the homestead law,-and on August 6,1877, such application and proof were transmitted to the commissioner of the general land office. Mrs. Fearns made her final proof on September 22, 1877, showing her compliance with the homestead laws, which proof was also transmitted to the general land office. Her application was overruled and rejected by the commissioner of the general land office, on December 6, 1877. The case was then appealed to the secretary of the interior, who, on August 27, 1878, held that Mrs. Fearns’s homestead entry was valid, and that she was entitled to the land; holding that Ryan’s homestead entry was valid at the time of the definite location of the plaintiff’s railroad; holding that although Ryan’s entry was defective and for the wrong land when it was first made, yet that subsequently, when the aforesaid amendment was made thereto, changing it to the land in controversy — to the land which he had settled upon and occupied as a homestead, and which he had in fact intended to enter — such amended entry took effect by relation from the date of the original entry of January 13, 1868, and was therefore prior to the railroad company’s definite location of its railroad on June 30, 1869; and therefore, under the acts of congress of March 3, 1863, (12 U. 8. Stat. at Large, 772,) and April 12, 1876, (19 H. S. Stat. at Large, ch. 72, pp. 35, 36,) the railroad company did not obtain any right tool’ interest in the land. On March 16, 1880, a patent for the land was issued by the United States to Mrs. Fearns. The opinion of the court below reads as follows:
“This is an action of ejectment, to recover the possession of the south half of southeast quarter of section 21, township 20, range 8 east, in Chase county, Kansas. One Patrick Ryan made an entry on certain lands in Chase county on January 13, 1868, and intended to and supposed he had entered the land in controversy. He made improvements on the land in controversy, and it was not until another party filed upon the land, on June 9, 1869, that Ryan discovered that he had not filed upon the land in question. He at once began proceed ings to have his entry corrected before the land courts, and succeeded in having such correction made so as to include the laud. This amendment was allowed October 26,1869. The 'line of plaintiff’s railroad was definitely located through Chase county and along the line of lands to which the land in controversy was contiguous, on the 30th day of June, 1869. At this time the right of plaintiff to lands under its land grant attached to all lands forming a part of the public domain within the ten-mile limit. At this time Ryan had no entry on the land. It was still a part of the public domain. His intention to enter did not sever it from the public domain. On the 30th day of June, 1869, the plaintiff obtained a vested right in the land in controversy. The subsequent proceedings of the land office in correcting the entry of Ryan could not divest the plaintiff of this right. We must therefore find for plaintiff; judgment will be rendered accordingly.”
Now, was either Ryan’s homestead claim or Manly’s preemption claim valid and subsisting at the time of the railroad company’s definite location of its railroad? If either was valid, we would suppose that the railroad company obtained no rights by virtue of the aforesaid land grants or the definite location of its road, [A. T. & S. F. Rld. Co. v. Pracht, 30 Kas. 66, and cases there cited,) and that one or the other was valid (and we think Ryan’s) must follow, from the facts proved and agreed upon. And this without reference to the decision of the secretary of the interior, and even if, as a matter of law, the decision had been made the other way. We suppose that it is well settled that the findings of fact made by land officers in a contested case before them must afterward, when relief is sought in the courts, be considered as final and conclusive. (Tatro v. French, ante, p. 49, and cases there cited.) But when the land officers misconceive or misconstrue the law arising upon the facts of the case, their decision with respect to the law will not be considered as final or conclusive, and the courts may afterward grant any proper relief. (See authorities above cited, also Quinby v. Conlan, 104 U. S. 420.) And the decision of the land officers in an ex.parte proceeding will not, in any case, be considered as final or conclusive against the parties who were not before them.
We think that Ryan, by settling upon said land and making-lasting and valuable improvements thereon, and by attempting in good faith to make a homestead entry thereon, and believing that he had done so, obtained such an interest in equity in and to the land that the subsequent definite location by the railroad company of its road could not divest him of his interest in the land. It was such an equitable interest in the land that he had a right to have his entry thereof amended so as to make it appear to be just what it was intended and believed to be when he made his original entry. The decisions of courts of equity permitting instruments in writing to be reformed so as to make them just what the parties intended that they should be, but which through some mistake of the parties they were not, furnishes great support to this proposition. There ought to be power somewhere to correct mistakes of this kind; and the proper place for such power to be vested is undoubtedly, in the first instance, in the land officers, but finally in the courts. In the present case, the correction was permitted to be made by the local land officers, and their action was sustained by the secretary of the interior, and we think their action should be sustained by the courts. Also, as Ryan was in the open, notorious and exclusive possession of the property, claiming the same as his homestead, such possession was sufficient to put all persons upon inquiry; and all persons were bound to take notice of his rights and interests in and to the property. (Hughes v. The United States, 71 U. S. 232.) The railroad company, when it definitely located its road, was bound to know what Ryan’s interests were with respect to the land, and to know that in equity he was entitled to the land by virtue of his settlement, his' occupancy, his improvements, and his attempted homestead entry; and being bound to know this, it obtained no interest in the land. (A. T. & S. F. Rld. Co. v. Pracht, 30 Kas. 66, and cases there cited.)
This present case is unlike the case of the A. T. & S. F. Rld. Co. v. Mecklim, 23 Kas. 167. In that case no attempted entry of any kind was made prior to the definite location of the railroad company’s line of road, while in this case there was. In that case there was no incorrect entry to be corrected or reformed, while in this case there was. . In the present case, when the railroad company, on definitely locating its road, found Ryan in the possession of the property in controversy, claiming it as his homestead, and claiming to have made an entry thereof at the United States land office, and having in fact made an entry, though incorrect ( all of which the company could have ascertained by inquiry) it should have selected other land in lieu of the land in controversy, as it had an unquestionable right to do under the act of congress granting the lands.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
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The opinion of the court was delivered by
VALENTINE, J.:
This was au action in the nature of ejectment, and for rents and profits, brought December 28, 1881, in the district court of Brown county, by Michael Rogers against John Bradley and Maggie Bradley. On May 24, 1882, Charles E. Bradley was made a party defendant. On September 28, 1883, a second trial was had in the case before the court and a jury, and on September 29, 1883, judgment was rendered in favor of the plaintiff and against the defendants, for the recovery of the land in controversy, and for rents and profits. It was also ordered by the court that the defendants be reimbursed for the taxes, with interest and costs, which they had paid on the property in controversy, and that they have the benefit of the occupying-claimant law. The order giving the defendants the benefit of the occupying-claimant law was made at their request. Afterward Rogers died, and, his death being suggested, the suit was revived in the name of his- heirs and executors, and was subsequently prosecuted by them. Afterward, and in January, 1884, further proceedings were had for the purpose of giving the ■defendants the benefit of the occupying-claimant law; and in February, 1884, such proceedings were duly approved by the district court; and further proceedings were then had in adjusting thé claims of the parties, respectively for rents and profits, waste, taxes, improvements, etc., and judgment was rendered accordingly. On March 3, 1884, at the instance of the defendants, a case was duly settled and signed for the supreme court; and on April 22,1884, the defendants, as plaintiffs in error, brought the case to this court.
It is claimed by the plaintiffs in error, defendants below, that the evidence in the case failed to show title in the plaintiff, and showed paramount title in the defendants. The defendants in error, plaintiffs below, however, raise a preliminary ■question in this court which will take precedence of the question of title, and as we think will render it unnecessary to consider the question of title, or indeed to consider any question of supposed error in the proceedings of the court below had prior to and including the rendition of the judgment awarding the property to the plaintiffs.
The foregoing question raised by the defendants in error, plaintiffs below, is as follows: They claim that the defendants below, by electing to institute proceedings under the occupying-claimant law, waived all errors or irregularities supposed to have been previously committed by the trial court, and elected to consider the.judgment rendered with reference to title and rents and profits and costs as final and conclusive, and are now estopped from seeking to overturn such judgment by any proceedings in error brought to this court; and they cite as authority therefor the case of Buchanan v. Dorsey, 11 Neb. 373. We think their claim is good; for, while the occupying-claimant law of Nebraska, and the facts of the Nebraska case, are to some extent different from the occupying-claimant law cf this state, and the facts of this case, yet we think the principles of law enunciated in the Nebraska case are applicable to this case, and are sound law; and we shall, therefore, follow that case in rendering our decision in this case. Also, with reference to waiver of errors by receiving the fruits of a judgment, see Babbitt v. Corby, 13 Kas. 612; Hoffmire v. Holcomb, 17 id. 378. In the Nebraska case, it was beld that where a party in an action of ejectment elects to institute proceedings under the occupying-claimant law, he is estopped from seeking relief by proceedings in error against the judgment rendered in such action ofiejectment. The occupying-claimant law of Kansas, so far as we need to quote it, reads as follows:
“Sec. 603. The court rendering judgment in any case provided for by this act [article], against the occupying claimant, shall, at the request of either party, cause a journal entry ■thereof to be made; and the sheriff and clerk of the court, when thereafter required by either party, shall meet and draw from the box a jury of twelve men, of the jurymen returned to serve as such for the proper county, in the same manner as the sheriff and county clerk are required by law to draw a jury in other cases; and immediately thereupon the clerk shall issue an order to the sheriff, under the seal of the court, setting forth the name of the jury, and the duty to be performed under this article.
“Sec. 604. The jury drawn and named in said order shall immediately, on being notified by the sheriff, proceed to view the premises in question, and then and there, on oath or affirmation, to be administered by any competent authority, assess the value of all lasting and valuable improvements made, as aforesaid, on the lands in question, previous to the party receiving actual notice, as aforesaid, of such adverse clajm; and shall also assess the damages, if any, which said land may have sustained by waste, together with the net annual value of the rents and profits which the occupying claimant may have received from the same, after having received notice of the plaintiff’s title, by service of a summons, and deduct the amount thereof from the estimated value of such lasting and valuable improvements; and said jury shall also assess the value of the land in question, at the time of rendering judgment as aforesaid, without the improvements made thereon, or damages sustained by waste, as aforesaid.”
“Sec. 606. The jury shall sign and seal their respective assessments 'and valuations aforesaid, and deposit the same with the clerk of the court by whom they were appointed, before the first day of the next term of said court after- said order is made; and if either party shall think himself or herself aggrieved by any such assessment or valuation aforesaid, he or she may apply to the court, at the term to which the proceedings are returned, and said court may, upon good cause shown, set aside such assessment or valuation, and order a new valuation, and appoint another jury, as hereinbefore provided, who shall proceed in the same manner as hereinbefore directed.” (Civil Code, §§ 603, 604, 606.)
The defendants- in this case did not stop with asking the court for a “journal entry” showing that they were occupying claimants, but they also demanded a jury by a written demand, which reads as follows :
“ Now come the defendants and demand a jury to assess improvements made by them prior to January 2, 1882, under their claim of ownership under the tax deed by them offered in evidence.”
As to whether the defendants would have the right to institute and maintain proceedings in error to reverse the judgment in the main action, if they had stopped with their request merely for a journal entry showing that they were occupying claimants, it is not necessary in this case to consider or decide, and we shall not consider or decide the same; for, as we have before stated, they did not stop with said request, but they demanded a jury for the assessment of their improvements, and such jury was awarded to them by the court, and was-afterward drawn and impaneled, and the value of their improvements was afterward assessed; and further proceedings were had in the case with reference thereto. It is true that the foregoing demand, for a jury to assess improvements, was made before the judgment was rendered; but we do not think that that can make any difference. It was made after the verdict and findings of the jury were rendered, and it was permitted to remain on file in the case after the judgment was rendered, without any revocation or dissent, and without any objection to the drawing and impaneling of a jury, or to any proceedings to be had by a jury, until after the jury were actually impaneled and sworn, and were proceeding to business.
We now come to the question whether any material or substantial error was committed by the court below after the ren dering of the judgment in the main action on September 29, 1883, for the recovery of the real estate in controversy and for rents and profits, and awarding to the defendants the taxes paid by them and the value of their improvements under the occupying-claimant law. The plaintiffs in error, defendants below, claim that many errors were committed after the rendering of such judgment. We shall, however, consider only one of such alleged errors, and that is, whether, after the jury in the oeeupying-elaimant proceedings have made all their assessments and valuations with regard to damages, waste, improvements, rents and profits, and of the. land without the improvements, or damages by waste, and have committed the same to writing, and signed the same, and deposited the same with the clerk of the district court, and have then dispersed, can any change or alteration in such written return be afterward made at the instance of one of the parties and with the consent of all the members of the jury, but without the consent of the other party? We must answer this question in the negative. The facts upon which this question arises appear to be substantially as follows: The order for the jury in the occupying-claimant proceedings was issued by the clerk of the district court to the sheriff on January 4,1884, and the jury were then drawn in accordance with law, and on January 11, 1884, they were impaneled and sworn according to law; and on the same day they made the aforesaid assessments and valuations, reduced the same to writing and signed the same, and on the next day, January 12, 1884, deposited the same with the clerk of the district court, who marked it filed as of that day. Afterward, and prior to January 18,1884, this return of assessments and valuations was changed; but in just what particulars it was changed does not appear, nor was it made to appear in the district court; but, among other changes, it would seem that $4,600 was changed to $4,000. It was shown in the district court that other changes were made, but just what other changes were made we cannot tell, nor was it made to appear to the district court. These changes, or at least some of them, were made at the instance of the defendants in error, plaintiffs be low. After all the changes were made, all the members of the jury again signed the return, and the former file-marks were erased and the return was re-filed by the clerk as of January 18, 1884. All this was done prior to the next term of the district court. At the next term of the district court, and on February 7,1884, the defendants moved the court to set aside the said assessments and valuations of the jury in the occupying-claimant proceedings and their verdict and return, upon the ground, among others, that the foregoing changes and alterations had been made. The court overruled the motion, approved such return, and rendered judgment accordingly. We think the court below should have set aside the return. The foregoing changes and alterations were irregular and unauthorized. The statute requires that “the jury shall sign and seal their respective assessments and valuations aforesaid, and deposit the same with the clerk of the court by whom they were appointed, before the first day of the next term of said court after said order is made.” (Civil Code, §606.) When this statute is complied with, we think the jury have exhausted their authority. By the use of the word “seal” in the foregoing statute, we think it was intended that the assessments and valuations of the jury should be placed in an envelope, or other inclosure, and the inclosure sealed, and then that the whole thing should be deposited with the clerk of the district court. Evidently it was not intended that the word “seal” should mean either the private or the public seal of the jury, or of any of the members thereof, for no such seal is known in law; and the use of all private seals, except of corporations, is abolished in Kansas. (Comp. Laws of 1879, ch. 21, § 6.) And as the return of the jury is required to be sealed and deposited with the clerk of the district court, it was evidently not the intention of the legislature that the return should afterward be opened for changes or alterations to be made by either of the parties, or by the jury, or by both together. In all probability the changes in the present case were not very material, but as we cannot tell what the changes were, or whether they were material or not, and as the district court had no better opportunity of knowing than we have — all the evidence upon the subject having been brought to this court — we must act upon the presumption that they might have been material. It was not shown in the district court, nor can we know from the evidence, what the original return of the jury was; we therefore think that the return should have been set aside and another jury ordered for the purpose of making new assessments and valuations.
The judgment of the court below in the main action will be-affirmed; but the judgment and orders of the court below,, rendered in February, 1884, with respect to the occupying-claimant proceedings, will be reversed, and the cause remanded with the order that the return of the jury in such proceedings be set aside, and for such other and further proceedings as may be proper in the case.
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The opinion of the court was delivered by
JOHNSTON, J.:
This was an action brought by Carroll Nolan, the defendant in error, in the district court of Franklin county, against the plaintiffs in error, to recover the value of a certain stock in trade, alleged to have been exempt, which was seized and sold by J. H. Rice, as constable, upon an order of attachment issued by a justice of the peace in an action brought by A. and J. Trounstine & Co.
It appears from the findings made by the court below, that Carroll Nolan was engaged in business at Ottawa, Kansas, as a merchant tailor, and that on February 15, 1883, he had on hand as stock in trade, cloths and trimmings suitable to be used in that business, of the value of $783. This stock was mortgaged for $410. He was also indebted to A. and J. Trounstine & Co. in the sum of $139.70, and on February 15, 1883, they brought suit before a justice of the peace to recover that amount, and caused an order of attachment to issue, which was placed in the hands of J. H. Rice, who levied upon all of Nolan’s stock. Afterward a judgment was obtained in that action, and on March 19, 1883, the constable sold all of the stock levied on except a small portion valued at $126.21, which was returned to Nolan. Out of the proceeds of the sale there was paid the judgment thus obtained and costs, and also the sum of $410, due upon the mortgages which existed against the stock. No objection was made by Nolan to the payment of the chattel mortgages. Before the sale, and on the morning of the same day, Nolan claimed the benefit of the exemption allowed him by law, and asked the privilege of selecting such portion of the stock as he desired to retain up to the amount of $400; but the constable, acting under the orders of A. and J. Trounstine & Co., refused to set off any of the stock as exempt, or to recognize the claim in any way. It further appears that on February 16, 1883, Nolan made and filed an assignment for the benefit of creditors, wherein he made no exception or reservation of the stock levied on; but no other or further proceedings were had or taken under this assignment.
Upon these facts, the court below found that Nolan was entitled to the right of exemption which he claimed, and that none of the facts above recited operated as a waiver of that right, and gave judgment accordingly.
Among other provisions relating to exemptions, it is enacted that—
“Every person residing in this state, and being the head of a family, shall have exempt from seizure and sale upon attachment, execution or other process issued from any court in this state, the following articles of personal property: . . . Eighth, The necessary tools and implements of any mechanic, miner or other person, used and kept for the purpose of carrying on his trade.or business, and in addition thereto, stock in trade not exceeding four hundred dollars in value.”
It is not controverted in this case that the defendant in error was the head of a family, and originally entitled to an exemption of the tools and implements used in his business, as well as stock in trade, up to the statutory limit of value. The only question presented for our determination is whether the right of exemption claimed by defendant in error had been waived.
It is first contended by counsel for plaintiffs in error, that the failure of the debtor to claim the exemption, and make a selection of the property exempt when the levy was made, operates as a waiver of the exemption, and estops him from thereafter claiming the same. The right of exemption conferred upon the debtor by the statute quoted, is not a conditional one; it does not depend for its existence upon the will or discretion of the officer, nor upon the request or demand of the debtor, but is absolutely given to him by the statute. It is true, he may waive the right. This court has held that a tenant in a written lease may waive the benefit of the exemption law upon a debt contracted for rent, (Hoisington v. Huff, 24 Kas. 379;) and the debtor may also sell his personal property, which is exempt from execution, (Arthur v. Wallace, 8 Kas. 269;) and he may pledge personal property as collateral security, notwithstanding. it would be otherwise exempt, (Jones v. Scott, 10 Kas. 33.) And doubtless if he should turn over exempt personal property to the officer, and permit him to sell the same in satisfaction of an attachment or execution, it would operate as a waiver, and he would thereafter be precluded from claiming the property as exempt, or from recov ering its value in a proceeding brought against such officer. But until the right of exemption is waived or lost by some unequivocal act or declaration of the debtor, it remains with him, and any of his property which is included within the terms of the statute, is beyond the reach of the officer and his process.
"We are referred by counsel to some decisions holding that it is the duty of the debtor to claim the exemption or to make the selection where a selection is necessary at the time of the levy, and failing to do so, the right is forfeited and lost. These rulings are based upon the peculiar terms of the statutes of the states where the decisions were made. Under our statutes relating to exemptions, and the liberal construction which has been given to them, the view contended for is too narrow. We think that unless the debtor has before that time unequivocally waived the exemption, he may make the claim and selection at any time before the sale, and he may assert the right even after the sale, where his acts and declarations before and at the time of the sale do not estop him.
The general rule and the weight of authority we think is, that the debtor may claim his exemption at any time before the day of sale. (Jourdan v. Autrey, 10 Ala. 226; Daniels v. Hamilton, 52 id. 108; Fulkerson v. Emmerson, 74 Mo. 607; Thompson on Exemptions, § 839, and cases there citéd.)
. Where the debtor has a greater number of animals or articles than are enumerated as exempt,, or where he has property which exceeds in value the limit of the exemption, a selection should be made before the sale, but our law does not prescribe when, or by whom it shall be made. In view of the fact that the statute is enacted mainly for the benefit of the debtor and his family, it appears to us that the debtor should be accorded the privilege of making the selection, and at any time before the sale.
In Alabama it has been held that where the statute is silent, the defendant in the execution is entitled to the privilege of selection, if he claims it. (Noland v. Wickham, 9 Ala. 172; Thompson on Exemptions, § 843.) It is the duty of the of ficer, we think, when he is about to make a levy upon property, some of which is exempt, to notify the debtor so that he may make a selection; and where, by reason of his absence or other circumstances,, he is precluded from selecting, it would then become the duty of the officer to set apart the exemption to which the debtor was entitled. (Thompson on Exemptions, § 839.)
In this case the record does not show that anything was said or done before the sale by the defendant in error indicating a purpose on his part to relinquish the right of exemption, nor does it appear that he was present at the time of the levy or had any knowledge that his goods had been seized by the constable until the morning of the day of sale, at which time he claimed his exemption, and insisted upon selecting such portion of the goods as he desired to retain. This claim of exemption, the constable, by the direction of the plaintiffs in the case, refused to recognize in any way. It has been held that where “the officer refuses to give the debtor any opportunity to make such selection, or denies his right to any exemption whatever, the actual selection is waived or excused, and the want of it will not be a waiver of the debtor’s right.” (Wicker v. Comstock, 52 Wis. 319.) We do not think we would be justified in holding that the delay of Nolan to claim the right of exemption and to demand the privilege of selection until the day of sale, is a waiver of the right and privilege demanded.
It is also contended by plaintiffs in error that the mortgages given by the defendant upon his stock amounted to more than the exemption to which he was entitled, and that as he made no objection to their payment out of the proceeds of the sale made by the officer, he must be held to have had the benefit of the exemption. This claim is not tenable. Such a ruling would in effect be a diminution of the benefit given by the statute to the debtor. If the exeinption could be thus limited, and the lien upon the property should be nearly or quite equal to its value, the beneficent purpose of the legislature in giving the exemption would be defeated. Where he gives chattel mortgages upon exempt property, he only waives the right of exemption to the extent of the mortgages given, and they do not affect his rights against any one except the mortgagees. Nolan was entitled to an exemption on his stock in trade, of his own selection, free and clear of all incumbrance or liability for debt, up to the full value of f400. (Bayne v. Patterson, 40 Mich. 658; Tryon v. Mansir, 84 Mass. 219; Weis v. Levy, 69 Ala. 211; Thompson on Exemptions, § 741.)
It is lastly claimed by the plaintiffs in error that the assignment for the benefit of his creditors, made and filed by the defendant on the 16th day of February, 1883, wherein he made no exception or reservation of his stock in trade, estopped him from claiming as exempt any portion of the stock seized. A sufficient answer to this claim is, that no action was taken or had under the assignment by or on behalf of the plaintiffs or anyone else. The plaintiffs did not claim the property in question under the assignment, but rather upon a seizure made a considerable time before the assignment was filed. It is not pretended that the action of the defendant in making the assignment in any way misled or influenced the action of the plaintiffs, and there can be no estoppel unless the defendant’s action operated to the prejudice of the plaintiffs. (Bramble v. Twilley, 41 Md. 440; Thompson on Exemptions, §§ 822, 838.)
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
HoetoN, C. J.:
It is alleged that the court erred in finding the amount due from plaintiff to defendant on March 18, 1881, to be $393.10. An examination of the record satisfies us, however, that we must accept the special findings of the trial court as conclusive. On page 31 of the record appears “that none of the evidence is in full.” On page 32 of the record is the following: “ This was not all the evidence as to taxes. The evidence showed that the amount due from Sanford to defendant at the time of the commencement of the suit and tender, was what the court found, to wit, $393.10.” On page 33 is the following: “ This transcript does not contain, and does not purport to give, all the evidence in the case. There was a good deal more evidence given in the case by both sides than is set forth in the transcript, to sustain the special findings of the court.” The judge, in certifying to the case-made, used the following language: “I hereby certify that said case-made does not contain all the evidence in the case on many points at issue between said parties, that was presented to me on the hearing.”
The question therefore arises, whether the plaintiff was entitled at the commencement of his action to a deed of conveyance from the defendant when he tendered only $381.50, while in fact there was due $393.10. We think not. Before the plaintiff can maintain his action to compel a deed, he must have tendered the amount due on the contract. (Iles v. Elledge, 18 Kas. 296.)
This conclusion disposes of the case, and therefore the judgment of the district court must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the claimant in a workmen’s compensation case from an adverse decision by the trial court.
The various points which the claimant tries to raise on appeal boil down to one question—whether there is substantial competent evidence presented in the record to sustain the findings of the trial court.
It was stipulated by and between the parties when they appeared before the examiner that on April 1, 1963, the respondent, Russell Ralph Construction Company, was operating under the workmen’s compensation act; that Aetna Casualty and Surety Company was the insurance carrier; that the claimant while employed by the respondent sustained personal injuries by accident arising out of and in the course of employment; that notice was had and written claim made within the statutory period; that the average weekly wage of the claimant was $80; that medical expense in the sum of $581.75 has been provided; and that compensation in the sum of $874 has been paid.
It was agreed the questions remaining at issue before the ex aminer were (1) the extent of any disability; and (2) the amount of compensation due, if any.
The examiner, after hearing the evidence, found in accordance with the foregoing stipulations, and further found that the claimant sustained personal injury resulting in twenty-three compensable weeks of temporary total disability from April 8, 1963, to September 16, 1963, for which he was entitled to compensation at the rate of $38 per week in the sum of $874, all of which has been paid. The examiner further found that the respondent and insurance carrier should pay for the services of Dr. C. W. Hall of Hutchinson, Kansas, to the claimant, and for services of Dr. Jerome S. Spitzer of Hutchinson, to the claimant. An award was entered accordingly on the 14th day of May, 1964.
By an order which became effective July 31, 1964, the director affirmed the examiner s award.
The district court on appeal examined the record and made findings similar to those of the examiner. It entered an award identical with the award approved by the director.
As heretofore indicated in the stipulation of the parties the controversy in this case centers around the extent of. the claimant’s disability as a result of the injury which he sustained on the 1st day of April, 1963. This is primarily a question of fact. (Fitzwater v. Boeing Airplane Co., 181 Kan. 158, 165, 309 P. 2d 681.)
On that date the claimant allegedly slipped and fell while working for the respondent. He had been employed by the respondent for about two weeks at that time, and was treated by Dr. Hall, a physician and surgeon, who had been his family doctor for many years, and who had treated the claimant on many previous occasions. Conservative treatment was administered to the claimant, and Dr. Hall released him to return to work on the 27th day of August, 1963. The insurance carrier paid compensation to September 16, 1963, at the rate of $38 per week for a period of twenty-three weeks in the total sum of $874. In addition, medical expense was provided in the sum of $581.75.
Claimant testified that he had had no previous back problems, but Dr. Hall testified he had treated the claimant for fourteen prior on-the-job maladies, three of which were back injuries. Dr. Hall stated that the claimant had no permanent disability as a result of the fall, and further that the claimant had no loss of function or neurosis as a result of the accident. Dr. Hall, as the claimant’s family doctor of long standing, felt there was no emotional or personality change in the claimant after the accident.
Dr. Spitzer testified he also was of the opinion that claimant had no physical disability as a result of the accident. He thought the claimant was able to work and so advised the claimant. It was on the 8th day of October, 1963, that Dr. Spitzer examined the claimant and found no limitation of motion and no reflex changes or “history to suggest any significant degree of injury.” His findings were essentially negative as far as pathology was concerned, and he said the claimant’s complaints were greatly exaggerated in relation to the medical findings and history.
Dr. Spitzer thought the accident was used by the claimant to solve certain life situations which he was unable to handle otherwise. He said insofar as the claimant’s percentage of disability is concerned, from a physical point of view, it was zero; but that his emotional problems made it unable for him to work at all. He testified that in his opinion the claimant has a 100% loss of function because of this accident.
The following is the statement of points relied upon by the claimant on this appeal:
“1. The District Court erred as a matter of law in holding there was no evidence to show that the Claimant is totally disabled.
“2. The Court erred in holding that the Claimant was not disabled after September 16, 1963.
“3. The Court erred in not finding that the Claimant is totally and permanently disabled as a result of the admitted accident.”
The first point assigned is an alleged conclusion of law made by the trial court. There is nothing in the record to disclose that the trial court made such conclusion. It was the function of the trial court to weigh all of the evidence and make findings of fact based upon the preponderance of the evidence. The first point, therefore, presents no issue on appeal.
The second and third points relied upon by the claimant challenge the findings of the trial court that the claimant suffered no disability after September 16, 1963. This resolves into one question—whether as a matter of law there is substantial competent evidence in the record to sustain the findings and judgment of the trial court.
This is borne out by the contentions advanced in the claimant’s brief. It is contended entirely too much reliance was placed upon the testimony of Dr. Hall, and that the trial court disregarded all of the evidence concerning the mental trouble of the claimant and based its decision fully on the testimony of Dr. Hall that the claimant was not physically disabled after August 27,1963.
It is argued the evidence of Dr. Spitzer that the claimant unconsciously uses the accident to solve his emotional problems, and that he had a 100% loss of function by reason thereof, was ignored.
It may be conceded that mental disability has long been recognized as being compensable under the workmen’s compensation act. (Morris v. Garden City Co., 144 Kan. 790, 62 P. 2d 920.)
In a preliminary way it is well to reiterate and observe some of the specific rules to which we adhere in workmen’s compensation cases upon review in this court:
(A) The jurisdiction of the Supreme Court on appeal taken from the judgment of the district court is specifically limited to the determination of questions of law. (G. S. 1961 Supp. [now K. S. A.], 44-556; Barr v. Builders, Inc., 179 Kan. 617, 296 P. 2d 1106; and Fitzwater v. Boeing Airplane Co., supra.)
(B) As to questions of fact this court reviews the record only to determine whether it contains substantial evidence to support the trial court’s finding; and in doing so, all the evidence is reviewed in the light most favorable to the prevailing party below. If substantial evidence appears, such finding is conclusive and will not be disturbed on review. (Silvers v. Wakefield, 176 Kan. 259, 260, 270 P. 2d 259; Barr v. Builders, Inc., supra; and Fitzwater v. Boeing Airplane Co., supra.) The rule applies with equal force whether compensation has been allowed or denied by the district court, and whether the appeal is by the claimant or the respondent. (Rorabaugh v. General Mills, 187 Kan. 363, 356 P. 2d 796.)
(C) Only in the event the evidence is undisputed is the question one of law for appellate review. (Fitzwater v. Boeing Airplane Co., supra.)
Under the foregoing rules the trial court was entitled to believe the testimony of Dr. Hall, who was the claimant’s examining physician and family doctor of long standing, and disregard the testimony of Dr. Spitzer. The record therefore contains substantial competent evidence to uphold the trial court’s finding that the claimant suffered no disability after the 16th day of September, 1963.
Claimant’s counsel argues that Dr. Hall did not see the claimant after the 27th day of August, 1963. Thus, it is said, with absolutely no evidence, much less substantial competent evidence, the claimant is found to have been disabled until the 16th day of September, 1963.
The only apparent reason for the selection of September 16, 1963, was that the respondent’s insurance company stopped paying compensation on this date.
The probable explanation of this fact is that Dr. Hall’s report did not reach the respondent in sufficient time to halt compensation payments prior to the 16th day of September, 1963. Had the examiner and the district court found that claimant’s disability ceased on the 27th day of August, 1963, it would have been necessary for the claimant to refund several payments of weekly compensation. This overpayment constitutes a gratuity, insofar as the claimant is concerned, and it does not give him a proper basis upon which to rely for a reversal.
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The opinion of the court was delivered by
Parker, J.:
Originally this was an action to foreclose a trust deed on a long term leasehold estate, in which an assignee of the lessors intervened and sought cancellation of the leases and recovery of rents. The lower court foreclosed the trust deed and ordered sale of the lessee’s interest, but held the leases should be canceled and the intervenor should recover the rents unless the lessee within a stated time should pay the currently defaulted rents and taxes. Reinstatement of the leases was effected pursuant to the trial court’s decree and the lessee’s interest was sold to satisfy the foreclosure judgment. On appeal by tire intervenor this court held that payment, of .further sums should have-been required as a condition to reinstatement of the leases, reversed the case, and remanded it with instructions to the lower court to render judgment for' such further sums.
The present appeal is from a judgment rendered by the lower court in attempting to comply with this court’s decision and subsequent mandate. ■ ■
Aside from what has already been said it will not be necessary to refer to the pleadings, relate the facts, or review the proceedings on which our decision was rendered in the original case. All these are to be found and are succinctly set forth in the opinion in W. K. H. Trust Co. v. Building Co., 159 Kan. 233, 153 P. 2d 930, which can easily be referred to in the event; they’ become of importance.
It is, however, imperative that we relate at some length the sub stance of the trial court’s final judgment and detail the events, circumstances and conditions leading up to and responsible for its rendition.
Shortly after the mandate in the original case was received by the court below the intervenor filed a motion to have it spread upon the record. Immediately it became apparent that the parties were not in accord as to how judgment should be computed under the decision of this court which had directed payment of rents conditionally waived by three contracts with interest as provided therein. Strangely enough, differences in opinion did not arise as to the principal amounts due under such judgment, but existed because of inability to agree as to whether those principal sums bore interest and, if so, the dates on which it became payable and the date on which liability for its payment ended.
Briefly stated, the points of differences were these: (1) The intervenor insisted that on the rents conditionally waived by each of three contracts of December 31, 1936, to which reference will presently be made, he was entitled to interest from January 1, 1937, at six percent; the plaintiff conceded he was entitled to such interest on one of the contracts but maintained the principal payable by terms of the other two bore interest only from date of their default on July 1, 1943. (2) The intervenor claimed interest on taxes paid by him on August 30,1943, to the date of final judgment, while the plaintiff insisted that since those taxes had been paid into court on June 19, 1944, in compliance with the lower court’s judgment as to reinstatement of the leases, the amount of such taxes ceased to bear interest from that date. (3) The intervenor contended for interest on all amounts, including both current and deferred rentals, to which he was entitled by the judgment until such time as they were paid over to him by the court, while the plaintiff took the position that no interest should be allowed beyond September 18, 1944, the date funds impounded in the hands of the trial court pursuant to its order became more than sufficient to satisfy the intervenor’s judgment irrespective of when such impounded funds were paid hina.
On May 15, 1945, the trial court determined the controverted issues in line with intervenor’s contentions and found that in accordance with the mandate of the supreme court there was due him not only the principal amounts which were conceded by all parties but, also, that interest was due and payable on such amounts as claimed by him at the rate of six percent up to and including the date of the rendition of its judgment which was then rendered accordingly.
The plaintiff then perfected this appeal which is limited in its ■scope to error in the computation and determination of the amounts of interest on rents and taxes due the intervenor, and rendition of judgment for such sums of interest, and the ordering of payment thereof to him out of funds impounded in the hands of the clerk of the district court.
Before proceeding further we are confronted with the question, raised by appellee, that actually the appeal is nothing more than an attempt to have the merits of the original case reconsidered and under our decisions appellant is not entitled to be heard. In support of his contention he cites Lewis v. Independence Hotels Co., 153 Kan. 678, 113 P. 2d 149, and we add, Robertson v. Labette County Comm’rs, 124 Kan. 705, 261 Pac. 831, in which decisions Headley v. Challiss, 15 Kan. 602, is referred to and approved. In that case we held:
“Where a ease has once been submitted and decided, this court will not, as a rule, upon a motion for a rehearing, consider any question not presented upon the original hearing.
“Where a case is brought a second time on error to this court, the first decision will be deemed the settled law of the case, and will not be made a subject of re-examination.” (Syl. flf 1, 2.)
We have no quarrel with the doctrine announced in the decisions just mentioned when applied under facts and circumstances such as existed therein although we are aware it is not always strictly adhered to. (See Robertson v. Labette County Comm’rs, supra, and cases cited on page 707.) And, without passing on the question, since its decision is not necessary, it should perhaps be stated the instant case appears to present facts where there is more reason for application of the rule announced in Henry v. Railway Co., 83 Kan. 104, 109 Pac. 1005. There we held:
“If the point, though involved in the record of a first appeal, is not brought to the attention of nor considered by the court, its decision then made does not preclude the consideration and determination of the point when presented on the second appeal.” (Syl. 11 2.)
The weakness in appellee’s position lies not so much in the doctrine he seeks to invoke but in the fact it does not apply here in any event. Without entering into a discussion on the subject of whether it would have been better practice for the parties to have 'sought an additional or supplemental mandate when it appeared there was some doubt and confusion as to its requirements, a procedure recognized in this jurisdiction (Union Central Life Ins. Co. v. Irrigation L & T Co., 146 Kan. 545, 73 P. 2d 70), appellant was not obliged to follow that course. Under our statute (G. S. 1935, 60-3330) and our decisions (Chicago R. I. & P. Rly. Co. v. Nichols, 133 Kan. 480, 300 Pac. 1064; Drury v. Drury, 147 Kan. 202, 75 P. 2d 213) a trial court has no duty to perform except to spread the mandate of record and to proceed to have the judgment of this court carried out. It has no authority to consider other matters not contained in the mandate. Neither does it have power to enter a judgment not authorized by its terms. The mandate here involved directed the trial court “to compute the further amount due appellant in harmony with this opinion and to render judgment.” Appellant does not seek a ruling on questions existing in the former ■ record or necessarily involved in our original decision as urged by appellee. He simply contends the trial court failed to render judgment in conformity with that decision and asks that it be required to do so. Under such circumstances a new and independent question is presented for review and a contention such as is made by appellee cannot be sustained.
Nor does the fact no motion for new trial was filed or no other formal objection made to the action taken by the trial court with respect to the mandate alter the situation. This court has held that the date from which a personal obligation should draw interest, pi’esented a question of law and that a motion for new trial was unnecessary to authorize consideration thereof on appeal. (See Selzer v. Selzer, 146 Kan. 273, 279, 69 P. 2d 708.) That is all appellant seeks to have determined here. Besides, whether a trial court has complied with the decision and mandate of the appellate court is purely a question of law and our decisions are that a motion for a new trial is never necessary to secure review of such a question. (See Achenbach v. Baker, 157 Kan. 292, 139 P. 2d 407 and numerous cases reported in West, Kansas Digest, Appeal and Error, sec. 284.)
We direct our attention now to consideration of the appeal on its merits.
Appellant’s first specification of error presents the issue that the trial court erred in awarding interest on the Sidle and Rudolph conditionally waived rentals from the date of the contracts rather than from the date of their default.
At this point it should be stated there were three lessors who for our purposes can be referred to as Moore, Sidle and Rudolph. December 31,1936, the lessee was in default in payment of rentals. On that date it made agreements with each of the lessors' whereby the latter accepted certain sums in satisfaction of accrued and unpaid installments conditioned upon performance of other terms of such contracts. Subsequently, the lessee defaulted in its performance and the appellee here, as assignee of the three lessors’ interest, brought suit against the lessee as is stated on page 237 of the opinion in W. K. H. Trust Co. v. Building Co., supra, to require plaintiff (the mortgagee and appellant here) and the defendant lessee “to pay deferred rental payments in accordance with the contracts between defendant and the lessors” and for “judgment against the defendant for deferred rentals under the agreement between the defendant and the landlords, dated December 31, 1936.” Of little importance to us are reasons for, or manner of, default. What is important are certain terms and conditions of such agreements.
Pertinent portions of the Sidle contract read:
“(1) Party of the second part agrees to pay party of the first part on or before January 1, 1937, the sum of $2,717.50, which party of the first part agrees to accept as payment in full of all unpaid rent accumulated pursuant to said contract or modification dated as of March 1, 1984, that is to say, said sum shall be accepted by party of the first part in full satisfaction of the hum of $6,486.00, which is the unpaid accumulated rent pursuant to said contract.
“(4) This contract is made expressly contingent upon party of the second part’s performance of each and all of the terms, covenants and agreements contained in said original lease and this contract and in the event party of the second part shall default in the terms thereof or hereof, then and in such event, party of the first part may, at his election without notice declare this agreement null and void, in which event, the balance of the deferred unpaid rentals under said contract dated as of March 1, 1934, as herein waived shall become immediately due and payable and the additional rental as herein •waived in the amount of $50.00 per month shall likewise become immediately due and payable.” (Emphasis supplied).
' The Rudolph contract so far as points here involved contained similar language except the sum to be paid was $2,377.50, in full satisfaction of the sum of $4,755.60.
Provisions of the Moore contract pertaining to the same matter set out in the quoted portion of the Sidle contract were quite different. They read:
“2. Party of the first part hereby acknowledges receipt of the sum of $1,-S01.56, in consideration of which party of the first part hereby defers the payment of the unpaid rents in the amount of '$1,135.94 which have accumumulated pursuant to said modification date as of March 1, 1934, until the maturity or end of the term of said ninety-nine year lease, and in the event lessee, its successors and assigns comply with each and all of the terms and covenants of said lease and of this contract, then and in such event party of the first part, her heirs, successors and assigns, hereby waive, relinquish and cancel the payment of said accumulated and unpaid rent; provided, however, that in the event party of the second part, its successors or assigns, as lessee, shall default under the terms or conditions of said lease or this- contract, then the balance of $1,135.94 of said unpaid and accumulated rentals shall at the option of party of the first part, her heirs, successors or assigns, become immediately due and payable without notice, together with interest thereon from January 1, 1937, at the rate of six percent per annum." (Emphasis supplied.)
We have set out portions of the contracts heretofore quoted, not with the intention of redetermining anything that was before us— and they were — in the original case, but for the purpose of accurately disclosing just what the record was and what we had under consideration at that time, so that ultimately it will be clearly revealed what force and effect we intended should be given our decision which obviously has become a subject of much controversy.
Appellee points to language to be found at page 234 in the opinion of such decision, wherein in relating the facts we inadvertently stated the agreements with the lessors provided that in default of full performance the amounts conditionally waived should become payable with interest at six percent from January 1, 1937, and strenuously argues it conclusively establishes interest was due on all three contracts from such date, notwithstanding two of the contracts contain no language of such character. Not so. Good reasons exist for the slight inaccuracy but we do not have time or space, nor are we required, to go into any detailed explanation regarding it. It suffices to say that in making such statement we were merely' relating the factual situation in general terms and not particularizing as to our decision. Heretofore mention has been made of what was said when we reached the point of stating what issues were raised in that appeal. Proceeding further we search the opinion to see what was said when we reached our decision. On page 238 thereof we said:
“On the appeal in No. 36,245 appellant contends ... (2) that it should have required the payment of the rents conditionally waived by the contract of December 31, 1936, with interest as provided therein. We think appellant is correct on both points. . . .” (Emphasis supplied.)
• In announcing our conclusion we reversed'the judgment and directed the trial court to compute the further amount due appellant (appellee here) in harmony with the opinion. We think a reasonable interpretation of our language required a computation of interest due on the contracts in accordance with the provisions of each such contract but, be that as it may, and without laboring the proposition further, we hold now, as we did then, the terms of the Sidle and Rudolph contracts made no provisions for payment of interest on conditionally waived rentals until such date as appellee exercised his option to declare such agreements null and void. On its occurrence the principal became immediately due and payable and bore interest thereafter. That date, as is undisputed, was July 1, 1943.
In passing we note that appellee in an attempt to avoid such result has devoted a considerable portion of his argument to the proposition that having elected to declare the contracts null and void they were extinguished and abrogated as though they had never been entered into; that the parties were restored to the status which existed prior to the time they were made. We deem his contention so devoid of merit as to be almost frivolous. In the original proceeding he based the causes of action set out in his petition on such contracts; in his brief he argued that they were breached because the rent was not paid as provided therein and that under their expressed terms such rentals had become due, and by our decision we required payment of such rentals by reason of their provisions. Having sought the aid of the lower court and having successfully invoked the assistance of this court in enforcing such contracts he cannot now repudiate them in order to avoid such of their terms as may be to his disadvantage.
Appellant’s remaining specifications of error can be considered together. It is first contended the trial court erred in awarding interest on the amount of taxes paid by the intervenor on August 30,1943, the amount of which was paid into court by it on June 19, 1944. Next it is argued that it was error to allow interest on current and deferred rentals after September 18, 1944, the date on which, pursuant to orders of the trial court, appellant had paid into court a greater amount than was sufficient to pay appellee’s judgment. Interest on both taxes and rentals was allowed up to March 15, 1945. On that date the trial court spread the mandate, entered final judgment and appellee’s judgment was satisfied. Neither contention can be sustained. There never was a time, until the mandate was spread of record and the trial court formally rendered final judgment that appellee could have accepted pay ment of current or deferred rentals or taxes without prejudice to his rights. (Hyland v. Hogue, 131 Kan. 512, 292 Pac. 750 and Stephenson v. Stephenson, 156 Kan. 520, 134 P. 2d 397.) This he was not required to do. Except for allowance of interest on the Sidle and Rudolph conditionally-waived rentals to the extent herein indicated, the trial court committed no error.
We are not unmindful of appellant’s contention — not too strenuously urged — that the matter of interest on taxes paid by appellee was not involved in the former appeal, and hence, that the judgment as rendered by the trial court with respect to reinstatement of the leases, and which he claimed definitely limited the payment of interest on the amount so paid to the date of its payment, remained in force and effect so far as it pertained to taxes after our decision of reversal. We seriously doubt whether such judgment is susceptible of the construction placed upon it. Even so, we do not agree with appellant’s position that interest on taxes was not an issue in the appellate proceeding. In the first place, the entire question of what was required to permit reinstatement of the leases there involved was clearly in issue. It included all amounts in controversy including any interest due or to become due thereon. In the next, it is apparent we determined such matters were there proper subjects of appellate review as is evidenced by a statement in our opinion to the effect that the leases should not have been reinstated in manner detrimental to the lessors represented by the intervenor. An appellant is not compelled to specify error on every ruling, decision and judgment included in its-notice of appeal (Marion County Comm’rs v. Clark, 157 Kan. 132, 138 P. 2d 449). To say that, as is the situation in W. K. H. Trust Co. v. Building Co., supra, a subservient question of the character referred to by appellant, entirely dependent upon decision of one principal issue which has been properly presented for review, must be specified as error would be placing too strict a construction upon our rule that an appellant’s abstract shall include a specification of the errors complained of, separately set forth and numbered.
Finally, we note appellant asks judgment for such sum. as was paid appellee on March 15, 1945, in excess of what was due the latter under our decision in W. K. H. Trust Co. v. Building Co., supra, with interest thereon at six percent from that date. This is an equitable proceeding. He who invokes the aid of equity must be prepared to accept its liabilities as well as its benefits. Having received money belonging to appellant to which he was not entitled appellee should be and is required to repay it with interest at the rate of six percent.
The judgment is reversed and the cause remanded with directions to compute the.excess interest awarded appellee on both the Sidle and Rudolph leases from January 1, 1937, to July 1, 1943. On ascertainment of its amount the trial court is directed to render judgment against appellee for such sum together with interest thereon at six percent from March 15, 1945. Other awards of interest as made on March 15, 1945, were proper and should not be disturbed. | [
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The opinion of the court was delivered by
Thiele, J.:
This action, commenced June 12, 1944, was to recover a sum of money, delivered by the plaintiff to the defendant for a scholarship fund, as more fully set forth later. Judgment was rendered for the defendant and the plaintiff appeals.
Issues were fully joined by the pleadings. The cause was submitted to the trial court on a stipulation of facts.
In the petition it was alleged that on September 20, 1920, the plaintiff and the defendant entered into an agreement by which plaintiff agreed to deliver to defendant $1,250 in trust for the establishmént of a scholarship in memory of one Victor Blakely who lost his life in military service during the World War in 1918, conditions of the scholarship being more fully mentioned later; that the trust was to continue for ten years; that the $1,250 was delivered and for the period of ten years the defendant carried out the contract by giving a full tuition to a student; that by mutual consent of the parties the defendant retained the $1,250 and until 1941 a full tuition was given, when the defendant ceased to do so and ever since has failed and refused; that since 1941 the defendant claimed to have used the income from the fund to apply on tuition of a student in Washburn Municipal University, but such application was without consent of plaintiff and not in accordance with the agreement; that in 1941 the defendant transferred its lands, buildings and equipment to Washburn Municipal University and since that time had not and was unable to perform the duties of the agreement; that the $1,250 was in possession of the defendant and it refused to return the same to plaintiff who was the owner thereof. The prayer was for judgment ordering return of the $1,250 and the earnings since 1941 and for equitable relief.
The answer contained a full statement of the establishment by plaintiff of what defendant refers to as a gift, and a history of the tuition paid from the income thereof, alleged at some length the pleadings and judgment in an action by Washburn College against Washburn Municipal University for a declaratory judgment as to matters incident to the college turning certain property over to the university, and alleged that it had no obligation to plaintiff as prayed for by plaintiff, and prayed that plaintiff take nothing in the action. ■
Plaintiff replied with a general denial.
We shall not review the stipulation of facts, and the correspondence attached thereto, in any detail, but therefrom we abstract the following:
Plaintiff is a corporation. Defendant is a nonprofit corporation for the purpose of promoting the diffusion of knowledge and the advancement of education, virtue and religion. On April 23, 1920, the plaintiff and defendant agreed upon the establishment of a scholarship fund by plaintiff and the agreement was reduced to writing. Under date of April 27, 1920, D. L. McEachron, vice-president of defendant, addressed a letter to Miss Clara Francis, vice-president of plaintiff, reciting:
“Confirming the agreement we reached in the conference with your committee on Friday last, I desire to say that Washburn College will gratefully receive' the scholarship that the Topeka Chapter of the Daughters of the American Revolution propose to found, will invest the funds in safe securities and use the interest of the same to pay the tuition of some ex-service man, to be selected under a plan approved by your Chapter. Further, that this scholarship will be listed in the annual catalog of the College under an appropriate name and with a statement concerning its founders and its purpose.
“I wish further to say that the College will accept at full value any government bonds that may at present be in the funds raised for the establishing of this scholarship, and that for a period of ten years from the first day of August, 1920, the college will agree to supplement the income from this scholarship, so that' it will provide full tuition for the holder in the regular courses of the College of Liberal Arts and Sciences and in the School of Law.
“Will you kindly convey to your Chapter the appreciation of Washburn College of their praiseworthy effort and our pleasure in being made the agent of your beneficence.”
On September 25, 1920, a ceremony was conducted at Washburn College at which time plaintiff made its pledge to initiate its plan to establish the scholarship. The pledge was in writing, and recited in part:
“Victory Scholarship established at Washburn College by Topeka Chapter Daughters American Revolution 1920
“This scholarship shall be called the Victor Blakely Memorial Scholarship.
“Preferred conditions for its benefits are to be soldiers of the European War and their descendants. The descendants of Charles G. Blakely, Jr. are especially recommended should they be students at Washburn College. The student to whom this scholarship shall be given is to be selected each year by Washburn College and the name immediately sent to the Regent of Topeka Chapter D. A. R. If, however, at any time there should be no proper candidate for the scholarship the matter of the award shall be by Wash-burn College referred to Topeka Chapter, D. A. R. for decision as to who shall, that year, be eligible for the scholarship.”
and continued with a statement that the scholarship was a memorial to a patriot and founded in a spirit of patriotism, and that each student holding the scholarship should be made acquainted with the circumstances of the death of Victor Blakely. It was signed .by officers of plaintiff and bore an endorsement reciting as follows:
“Received from Topeka Chapter Daughters American Revolution the sum of one thousand dollars ($1000) to establish the Victor Blakely Memorial Scholarship according to the terms of the agreement embodied in letter attached hereto signed by D. L. McEachron, Vice-President Washburn College, under date of April 27, 1920. D. L. McEachron
Vice-Pres.
Washburn College”
At later dates additional sums of $50, $100 and $100 were added to the $1,000. When the last payment was made on July 2, 1924, P. P. Womer, then president of defendant, wrote a letter to plain tiff’s representative stating the payment completed the scholarship of $1,250, and that it was not enough to cover full tuition of a student at Washburn, which was $125 per year, and he hoped plaintiff at some time would see fit to contribute a balance of $850 to make the investment large enough to yield the total tuition of a student and—
“However, in accordance with our agreement, we will see that the full tuition is granted to the beneficiary of this scholarship.”
The defendant invested the funds safely, listed the scholarship in its catalog and used the income toward the payment of tuition of a student selected under the plan, and from other sources augmented the income to an extent necessary to provide the full tuition. This was done continuously from September, 1920, to June, 1930. During -the first two years full tuition was $100 per year, during the next three years $125 'per year; during the next four years $150 per year and the last year $180 per year; making a total of $1,355 so provided by defendant during the first ten-year period. Thereafter for a period ending in June, 1941, further full tuition was furnished at $180 per year or an aggregate of $1,980. Beginning in 1929 the income from the scholarship fund and other special funds became reduced, a condition continuing until June, 1941. In 1941 Washburn Municipal University of Topeka was established and under a contract defendant conveyed its school plant to the university, under conditions which need not be set forth in detail. After operation by the university started, the defendant applied the income from the fund in question to the payment of tuition of a student selected under the plan for the school years commencing in 1941, 1942 and 1943. No student beneficiary was selected for 1944 and the income available but not used was $40.31. Attached to the stipulation of facts are letters passing between officers of the plaintiff and defendant, in which plaintiff expressed the belief it was entitled to a full scholarship as provided in its original agreement and if defendant was unable to fulfill the contract, plaintiff asked that the full scholarship fund of $1,250 be returned to it.
The cause was submitted to the trial court upon the pleadings, the stipulation of facts and written briefs, and upon consideration it concluded there had been no breach on the part of defendant of its agreement with plaintiff and that plaintiff was not entitled to recover, and it rendered judgment accordingly. Plaintiff appeals to this court.
Appellant makes three general contentions that the trial court erred in its judgment, and that it is entitled to recover for the following reasons: (a) That the fund was delivered to appellee as a private trust, under an agreement appellee was to use the income to furnish a full scholarship to students to be selected from year to year, for a period of ten years. (6) Being a private trust for a limited period in which appellee acted as trustee and agent for the appellant as settlor of the trust, the fund at all times belonged to appellant, and, no one else having any right or interest in it, the appellant had the absolute right to terminate the trust and recover the fund at any time, (c) The appellee has ceased to be an educational institution and, since 1941, cannot and has not carried out the terms-of the trust, and is legally bound to restore the fund to appellant, the owner thereof.
In a very summary way it may be said appellee contends it is a charity, and the gift made by appellant was a gift to charity; that there was no provision for revocation of the gift; that the gift contained no restrictions, conditions, reservations, provisions for forfeiture or reversion and therefore vested legal title in appellee, as well as other contentions which will be noted to any extent necessary to a determination of the appeal.
In a preliminary way, it may be stated the record as abstracted contains letters passing between representatives of appellant and appellee, and possibly of Washburn Municipal University, although the latter does not clearly appear, all written in 1942 and 1943, and in the briefs are references to them, as well as to the suit between Washburn College and Washburn Municipal University for a declaratory judgment, and the findings of fact and judgment therein. The fact of the establishment of the scholarship, the terms under which it was established, and the legal conclusions to be drawn, depend on the interpretation and construction to be placed on the McEachron letter of April 27, 1920, and the statement of the appellant, bearing McEachron’s endorsement, both of which have been quoted above. Therefore we shall not make any reference to that correspondence, nor to the suit mentioned, for appellant was not a party to it.
Before discussing whether the scholarship created and founded by appellant constituted a private trust, a charitable trust or a gift, we take up the question whether there was any limitation of time it was 'to exist. Appellant contends there was a limitation of ten years. The matter of time is referred to only in the McEachron letter of April 27, 1920. In the first paragraph it is stated the scholarship will be received, the fund invested and the interest used to pay tuition of some ex-service man-under the plan, and that the scholarship will be listed in appellee’s catalog, and in the second paragraph it is stated the appellee will accept bonds, “and that for a period of ten years . . . the college will agree to supplement the income from this scholarship, so that it will provide full tuition . . .” In our opinion the above language cannot be read as constituting any limitation on the duration of the scholarship. We think it states about as clearly as possible that for the first ten years of the scholarship the college would add to the interest derived from the scholarship funds sufficient moneys that a full tuition would be provided. There was no limitation of time for which the scholarship would endure nor any provision that at the end of ten years or any other period that it should cease.
Did the agreement evidenced by the letter and documents heretofore quoted constitute a private trust or a charitable trust? In discussing this question, we waive for the time being whether the agreement resulted in a gift. As it is common to either result, we note that there is no provision for revocation by the appellant, nor any provision that in and of itself will terminate the scholarship and restore the fund or any part of it to the appellant. In support of its contention that a private trust was created, appellant directs our attention to Restatement, Trusts, Yol. 2, p. 1091, Introductory note, and quotes the following:
“The fundamental distinction between private trusts and charitable trusts is that in the case of a private trust property is devoted to the use of specified persons who are designated as beneficiaries of the trust; whereas in the case of a charitable trust property is devoted to purposes beneficial to the community.”
The above paragraph, however, is followed by one reading:
“The most important differences are those relating to the validity of the trust. There cannot be a private trust unless there is a beneficiary who is definitely ascertained at the' time of the creation of the trust or definitely ascertainable within the period of the rule against perpetuities. On the other hand, a charitable trust can be created although there is no definite or definitely ascertainable beneficiary designated, and a charitable trust is not invalid although by the terms of the trust it is to continue for an indefinite' or unlimited period.”
For other statements of the same tenor see 11 C. J., p. 302 (Charities, § 6); 14 C. J. S., p. 415 (Charities, § 1 f); 65 C. J., p. 229 (Trusts, §18); 10 Am. Jur., p. 589 (Charities, §6). Under the above we think it may not be said a private trust was created. The income of the trust was not to be devoted to the use of definitely ascertained persons, but to a person to be selected from a class. Neither can it be said it was not beneficial to the community because the income was sufficient to pay tuition of only one student. Such a test solely applied would make a large fund charitable and a small fund private, and certainly that is not a true test.
Appellant also directs our attention to Restatement, Trusts, Vol. 2, p. 1145, Comment “h,” stating in part that a trust for the relief of poverty is not charitable if the beneficiaries are limited to the members of a class so small that the relief of the class is not of benefit to the community. A reference to the entire paragraph will show that the subject matter is trusts for the relief of the poor.
A further examination of Restatement, Trusts, shows that charitable trust is defined as follows:
“A charitable trust is a fiduciary relationship with respect to property arising as a result of a manifestation of an intention to create it, and subjecting the person by whom the property is held to equitable duties to deal with the property for a charitable purpose.” (§ 348, p. 1095.)
and that—
“A trust for the' advancement of education is charitable.” (§ 370, p. 1146.)
Under the comment to the last section it is said:
“a. Methods of advancing education. Trusts for the promotion of education include trusts ... to establish scholarships or otherwise to assist students in acquiring education. . . .”
In Washburn College v. O’Hara, 75 Kan. 700, 90 Pac. 234, it was held:
“In the residuary clause of a will the testator bequeathed all of the remainder of his estate, in trust, to the trustees of an incorporated educational institution, to be held by them as a perpetual fund for the higher education of young men to be selected by such trustees for the Christian ministry. Held, that such bequest created an educational trust, which is a public charity.” (Syl.)
In Lehnherr v. Feldman, 110 Kan. 115, 117, 202 Pac. 624, it was said:
“It is the settled rule that courts will look with favor upon all attempted charitable donations, and will endeavor to carry them into effect, if it can be done consistently with the rules of law.”
We think the trust may be not stricken down as not being a charitable trust.- Under definitions relied on by appellant, the trust is not a private one. No person was specifically named as beneficiary, nor was there any provision that could possibly so result within the rule against perpetuities, which we need not discuss. On the other hand, a scholarship was established, the beneficiary of which was to be selected from “ex-service” men, under McEachron’s letter, or to be “soldiers of the European War and their descendants,” under appellant’s declaration quoted heretofore. To say that either class is unduly limited would be to say that scholarships limited in any manner as to class could not constitute charitable trusts. That ought not to be and is not true.
Appellant also directs our attention to Restatement, Trusts, § 339, p. 1038, reciting:
“If the settlor is the sole beneficiary of a trust and is not under an incapacity, he can compel the termination of the trust, although the purposes of the trust have not been accomplished.”
and to comment following. In our opinion the text and illustrations do not support appellant’s contention that it had the right to terminate the trust, if for no other reason than that it was not the sole beneficiary. In fact, it was not a beneficiary at all. We need not review the authorities at length on the power of a settlor to revoke a trust created by him. Generally a private trust may be revoked only where the settlor reserved such a power, or having intended such a reservation omitted to insert it, or upon the same grounds as those upon which a transfer of property not in trust could be rescinded. See Restatement, Trusts, §§ 330, 332, 333, pp. 984, 1003, 1008. See, also, Diller v. Kilgore, 135 Kan. 200, syl. ¶ 6, 9 P. 2d 643; and Moore v. Hayes, 138 Kan. 327, 26 P. 2d 254. With respect to charitable trusts the rule is that once validly created they cannot be revoked unless the power to do so is reserved in the trust instrument. See Restatement, Trusts, § 367, p. 1138.
At various places in its brief appellant directs our attention to Eakle v. Ingram, 142 Cal. 15, 75 Pac. 566, 100 A. S. R. 99. In that case a private trust was created. under which the trustee was required to hold the trust estate and pay the income to designated beneficiaries. After the death of the settlor, ‘the beneficiaries brought suit to have the trust terminated. That relief was granted, it being held that the beneficiaries were the only persons interested, that the term had expired, and there was no reason why the trust should not be terminated. It was also held that the trustee had no standing in court to dispute the application for termination. In view of our conclusion that the trust now under consideration is not a private trust and that appellant is not the beneficiary, the cited case is not in point.
We note also that in the briefs there is some mention made that Washburn College has ceased to function as an educational institution. It is conceded by the stipulation of facts that the educational institution previously conducted by it, with the attendant functions, advantages and opportunities, is now being conducted and afforded by Washburn Municipal University, which has succeeded to the school plant formerly owned by the appellee. There being no provision otherwise in the documents evidencing establishment of the scholarship, we are of opinion the income from the scholarship fund may be applied to tuition in the university.
There is some further contention that the appellee has ceased to function as an educational institution, and has no power to act as a trustee. The above, if true, does not avail the appellant. If the appellee corporation is exceeding its corporate powers, the state may raise the question, not the appellant. See, e.g., State v. Railway Co., 74 Kan. 413, 87 Pac. 696; Kern v. Newton City Commissioners, 147 Kan. 471, 77 P. 2d 954; Bradley v. Cleaver, 150 Kan. 699, 703, 95 P. 2d 295; Douglas v. City of Wichita, 148 Kan. 619, 83 P. 2d 657. If the appellee has no power to act as trustee, the trust does not fail. A court of competent jurisdiction may in such event, appoint a competent trustee. See annotation in 5 A. L. R. 315 et seq., and Barnhart v. Bowers, 143 Kan. 866, 57 P. 2d 60.
From the above it is concluded that appellant’s contentions of error cannot be sustained.
At the request of this court, the parties filed supplemental briefs on the question whether the establishment of the scholarship, being to carry out a corporate purpose, was not a gift to the corporation and not a trust. In view of our conclusions it is not necessary that we discuss or decide the question. Those interested will find the question discussed in Bradley v. Hill, 141 Kan. 602, 42 P. 2d 580; Zabel v. Stewart, 153 Kan. 272, 109 P. 2d 177; and the annotation in 130 A. L. R. 1101 et seq.
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The opinion of the court was delivered by
Hoch, J.:
This is an election contest case involving the office of county commissioner in Miami county. A motion by the contestee for judgment, on the pleadings was overruled and he appeals. Upon the official canvass of votes cast at the general election in November, 1944, Steve Russell was declared elected commissioner in the second district by a majority of eleven votes over Harold N. Johnson. Johnson filed a statement of intention to contest the election, under the provisions of section 25-1415, G. S. 1935. Persons were named to constitute a contest court (G. S. 1935, 25-1413). The contestee then filed a motion for judgment upon the pleadings. The “Statement of Intention,” hereinafter called the statement, was the only pleading that had been filed. The motion was overruled and appeal was taken to the district court. In the district court the contestor challenged the contestee’s right to be heard on the ground that the order overruling a motion for judgment on the pleadings was not an appealable order. The district court denied the motion to dismiss and overruled the motion for judgment on the pleadings. This appeal followed.
Before considering the case on its merits we take note of appellee’s contention, renewed here, that the order denying the motion for judgment on the pleadings is not an appealable order. The contention cannot be sustained. It was asserted in the motion that the statement showed upon its face that the contestor had no cause of action and that a right of contest, “if it ever existed,” was barred by the statute of limitations. The motion was clearly tantamount to a demurrer. Treated as a demurrer a motion for judgment on the pleadings, of course, presents no issue of fact — it concedes all facts well pleaded by the adverse party. (Smith v. Jones, 145 Kan. 892, 893, 67 P. 2d 506; Gas Service Co. v. Consolidated Gas Utilities Corp., 150 Kan. 715, 717, 96 P. 2d 608; James v. Metropolitan Life Ins. Co., 155 Kan. 377, 381, 125 P. 2d 369; Northington v. Northington, 158 Kan. 641, 643, 139 P. 2d 622, and cases cited.) It follows that a ruling upon the motion, so considered, is appealable under the statute. (G. S. 1935, 60-3302 Second.)
Omitting formal averments the statement was as follows:
“6. That the particular causes of contest are as follows: That the Third Ward of Paola, Kansas, is located wholly within the Second County Commissioner District of Miami county, Kansas, and that at the General Election held on November 7, 1944, a total of 630 ballots were' cast in said Third Ward.
“That of said 630 ballots cast in said Ward a total of only 579 for the office of County Commissioner, Second District, were counted and certified by the Election Officials of said Third Ward, of which contestor received 282 votes and contestee received 297 votes.
“That the majority of vote's received by contestee for the office of County Commissioner, Second District, in said Third Ward, over contestor as certified by the Election Board and as shown by the canvass of the Board of County Commissioners was fifteen (15), and that the total majority of votes received by contestee for said office throughout the entire Second County Commissioner District, as returned by the several election boards and as canvassed by the Board of County Commissioners, was eleven (11).
“That of the 630 ballots cast at the polls in said Third Ward at said election forty-five (45) were absentee ballots upon which had been printed the candidates for office of County Commissioner in both the Second, and Third Districts of Miami County, and in which cases the absentee voter had voted for one candidate for County Commissioner in each of said Second and Third Districts.
“That because of said forty-five (45) votes being cast not only for a county commissioner in the Second District, but also for a county commissioner in the Third District, the Election Board of said Third Ward declared said votes for County Commissioner void and rejected all of them, and none were counted. That the number of said votes so cast for the office of County Commissioner, Second District, which were rejected was sufficient mathematically to have changed the result of said election in said Third Ward and in the Second County Commissioner District as a whole. That all of said rejected votes were legal votes and should have been counted. (Italics supplied.)
“That the names of the voters whose votes for County Commissioner, Second District, were so rejected, all of whom voted in 3rd Ward, Paola City, Miami County, Kansas, are as follows:” (forty-five names, here omitted.)
Appellant’s first contention is that the statement does not state a cause of action for the reason that it contains no allegation that if the forty-five rejected votes had been counted the contestor would have been elected. Appellee does not argue here that it was not necessary to make such an allegation in order to comply with the pertinent provisions of the statute. He contends that under a fair interpretation of the statement he did allege that if the forty-five votes had been counted he would have been elected. The sentences in controversy, shown in the statement heretofore quoted, are:
“That the number of said votes so cast for the office of county commissioner, Second District, 'which were rejected was sufficient mathematically to have changed the result of said election in said Third Ward and in the Second County Commissioner District as a whole. That all of said rejected votes were legal votes and should have been counted.”
It is well at this point to note the precise language of the statute. Section 25-1411, G. S. 1935, enumerates seven grounds upon which “the election of any person declared duly elected to any county office may be contested by any elector of the county.” One of these grounds is:
“Fifth. When illegal votes have been received or legal votes rejected, at the polls, sufficient to change the result.”
Section 25-1415, G. S. 1935, provides that the contestor shall file in the office of the county clerk his written statement reciting, inter alia, the “causes of contest.” Except as to the alleged defect now considered, there is no contention that the provisions of the statute were not complied with.
Proceeding under paragraph “Fifth,” supra, was it necessary for the contestor to allege that if the forty-five rejected votes had been counted he mould have been elected, or was it sufficient to allege that they were sufficient in number that if counted they could change the election result? In view of appellee’s construction of his statement and our conclusion presently to be stated we do not need to determine here that question of interpretation of the statute.
Although appellee does not contend that the statement contains any averment as to the number of votes he would have received out of the forty-five rejected votes; he does contend that the averment is, in effect, that he would have been elected if the forty-five votes had been counted. On the other hand, the appellant argues that the averment is merely that the mathematical result would have been changed (an obvious fact) if the forty-five votes had been counted. We agree with appellee’s construction. Reasonably construed we think the contestor alleged that a count of the forty-five votes would show that he received enough of them to overcome the contestee’s lead of eleven votes, thus resulting in his election. Furthermore, it is to be noted that there was no motion to make definite and certain, and in the absence of such a motion the pleading is entitled to a liberal construction. (Fishburn v. International Harvester Co., 157 Kan. 43, 47, 138 P. 2d 471; Downey v. Phillips, 137 Kan. 362, 364, 20 P. 2d 453, and cases cited.)
Appellant’s second contention is that the statement shows upon its face that the forty-five votes were lawfully rejected and that therefore no cause of action was stated. The contention is based primarily upon the theory that the forty-five absentees were in the • military service and that the votes were rejected in compliance with a regulation promulgated by the secretary of state as authorized by G. S. 1943 Supp. 25-1225 (part of the 1943 statute relating to voting by absentees in the-military forces in time of war, being sections 25-1214 et seq., 1943 Supp.). Appellant also contends that 'the votes were properly rejected because the placing of a cross mark in the squares opposite the names of candidates in two commissioner districts constitutes an identifying mark which invali dated the ballot. Appellee apparently concedes that we may take judicial notice of the regulation issued by the secretary of state but disagrees with the construction placed upon it by appellant. He further contends that the markings do not constitute an identifying mark which invalidated the ballot.
Before considering these contentions on their merits it should be noted that the statement itself is silent as to the statute under which the ballots were prepared or the votes were cast. The allegation is simply that the forty-five “were absentee ballots upon which had been printed the candidates for office of county commissioner in both the second and third districts.” We cannot say as a matter of law that the absentees were in the military service. They may have been civilians authorized to cast absentee ballots under other statutes. (G. S. 1943 Supp. 25-1101 et seq.) Nor can we say whether the ballots so printed were properly furnished to these particular absentee voters. We need only determine whether the rejection of votes upon ballots so printed and so marked was necessarily unlawful. Unless it was, the statement was sufficient, as against the motion.
It is not contended that the absentees were not qualified voters in the third ward, nor that they were not entitled to vote for commissioner in the second district. They were furnished a ballot upon which were printed not only the names of candidates in that district but also the candidates for commissioner in the third district for whom they were not entitled to vote. They voted for candidates in both districts. Did the cross mark which they placed after the name of a candidate in the third district constitute an identifying mark which required rejection of the entire ballot, under the statute? The governing statute is section 25-419 G. S. 1935, which deals broadly with the counting or rejection of ballots and other related subjects. Various grounds for rejecting ballots are set out. The pertinent provision is that a ballot shall be rejected “upon which there shall be found any other mark than the cross mark used for the purpose of voting.” (Italics supplied.)
Short v. Davis, 90 Kan. 147, 132 Pac. 1172, is directly in point. In that case, which also involved the office of county commissioner, those preparing the ballots had improperly placed a square after the words “no nomination” at various places where they occurred on the ballot and many voters had placed a cross mark in these squares. It was held that such marks did not constitute an identifying mark invalidating the ballot under the provision above quoted, and that in the absence of any showing of fraud or fraudulent intent such ballots were properly, counted. In the opinion it was said: “In the literal sense'it could hardly be said that the electors using this ballot placed cross marks in any of the voting squares for any other than the purpose of voting, although that purpose was not accomplished by using the square in question.” (p. 152.) There is certainly more reason, under the present situation, for holding that the ballots should be counted. If a voter who makes a mark in a printed square after the words “no nomination” does so for “the purpose of voting,” certainly one who makes a mark in a printed square after the name of a candidate does so for the “purpose of voting” in the absence of some indication to the contrary.
The decision in Short v. Davis, supra, has stood unquestioned for more than twenty-five years. Since that decision some changes have been made in the statute but the provision upon which it was based has not been changed. Such changes as have been made have had the effect of making the requirements less rigid (for history of changes made prior to 1925 see Wall v. Pierpont, 119 Kan. 420, 240 Pac. 251). One change, made in 1913, was to remove the restriction that only a pencil with black lead could be used. Another and important change, also made in 1913, was to add the following provision:
“No ballot shall be invalidated and thus thrown out because a cross within the square is not made with mathematical precision. The intent of the voter must be first considered, and if in the opinion of the judges the cross is not an identifying mark the ballot shall be counted.” (G. S. 1935, 25-420.)
The general trend of these changes and of our decisions since Short v. Davis, supra, has been to emphasize the voter’s intention and to count the ballot unless in the opinion of the judges the mark in question was intended as an identification mark. (Mathewson v. Campbell, 91 Kan. 625, 138 Pac. 637; Wall v. Pierpont, supra; Boddington v. Schaible, 134 Kan. 696, 8 P. 2d 314; Hansen v. Lindley, 152 Kan. 63, 77-80, 102 P. 2d 1058.) In the present case the fact that the squares in which the voters improperly made a cross mark were printed on the ballots, and the further fact that there were forty-five voters who made the same mistake strongly fortifies the view that the marks were not made for purposes of identification.
It is thus clear that it would have been improper to reject the whole ballot. The next question is whether all votes for commissioner upon ballots so marked should have been rejected. We find nothing in the law which requires that result. Under the allegations the voters regularly marked their ballots for commissioner in the second district as they were entitled to do. Finding also printed on the ballot the names of candidates for commissioner in another district, they also marked a cross after candidates’ names in that district. Of course they should have known in which district the third ward — their voting place — was located, and also that under our law they could not vote for commissioner in both districts. But we announce no startling fact when we say that however lamentable it may be, lack of such knowledge can hardly be said to be uncommon. Indeed, it would not stretch the doctrine very greatly to say that judicial notice is to be taken of the fact that many citizens frequently display similar lack of knowledge.
In view of our decisions construing the specific provisions of our own statutes on the subject there would be little point in reviewing the cases called to our attention from other jurisdictions based upon other statutes.
We conclude that under the general election law the votes properly marked for Johnson or for Russell should have been counted and the cross marks for candidates in the other district should have been treated simply as surplusage and disregarded. But appellant urges that the absentees whose votes were rejected were in the military service and that a regulation promulgated under the new (1943) soldier-voting law G. S. 1943 Supp. 25-1214 et seq., required the rejection of all votes either for Johnson or Russell upon ballots which were also marked for candidates in the third district. In view of the fact that the statement does not disclose the fact that these forty-five absentee voters were in the military service it is perhaps not necessary to deal with that question. However, since it may be argued that we should assume that the ballots were printed in regular form and that only ballots going to absentee voters in the military service had printed thereon the napes of candidates in more than one commissioner district, we will consider the question.
Section 25-1225, G. S. 1943 Supp., (being a part of the 1943 soldier-voting law) provides:
“The secretary of state is hereby authorized and empowered to make such rules and regulations as he may deem necessary to carry out the provisions of this act.”
Both-parties agree that prior to the 1944 election the secretary of state promulgated the following regulation, a copy of which was sent to election boards :
"Whenever cross marks shall be made in the squares at the right of the names of candidates for state representative or county commissioner in more than one district such votes shall not invalidate the whole ballot but shall invalidate those parts and those portions only and the same shall not be counted for any. such candidates for said offices." (Italics supplied.)
As construed by appellant the regulation requires rejection of the votes for commissioner in the second district where the absentees resided, as well as in the third district in which they did not reside. Appellee construes the regulation as providing merely for rejection of the vote for candidates in the other — the third commissioner district. We are not much concerned as to the proper construction of the regulation, though appellant's construction seems the correct one. If appellee's’ construction is correct then the regulation added nothing to the general law. Obviously no one who resides in the second district is entitled to vote for commissioner in the third district. On the other hand, if the regulation means what appellant says it does we have no hesitancy in saying that it went beyond any power vested in the secretary of state. The purpose of the act was to provide methods and machinery for voting by absentee ballot by qualified voters in the military service. We do not question that the secretary of state was given broad powers in preparing the form of the ballot and in other such matters incident to the casting and counting of the ballots. But the law does not give him power to determine qualifications of voters or to make new law for the rejection of ballots. To hold otherwise would clothe him with power to rewrite fundamental provisions of our voting laws. Printing on the absentee soldier ballots the names of candidates in both commissioner districts may have been the only practicable thing to do, and as such well within the secretary's power. But to require rejection of the votes here at issue would deprive the voter of his rights under the law, would ignore his clear intention, and be wholly outside any power conferred upon the secretary of state. Needless to say no support to the contrary is to be found in G. S. 1935, 25-419, which reads:
“Whenever a cross X mark shall be made in the square at the right of the name of more than one Candidate for the same office, such vote shall not invalidate the ballot, nor shall the same be counted for any such candidate.”
In the present case two different offices — commissioner in the second and the third districts — and not “the same office” are involved.
In further fortification of what has been said it is pertinent to note the last'clause of the recent soldier-ballot law, which reads:
“And the provisions of this act shall be construed liberally for the purpose of effectuating its purposes.” (G. S. 1943 Supp. 25-1228.)
Appellant’s construction of the regulation would not help effectuate the purpose of the act. It would tend to defeat it.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Valentine, J.:
On December 12th 1872, the Fort Scott Coal and Mining Company entered into a written contract with John Sweeney, whereby Sweeney leased unto said company,, their successors and assigns, “for the full term of two years (with privilege of continuing said lease at its expiration,) the sole and exclusive right and privilege of boring, digging, and otherwise prospecting for coal, petroleum, lead, or other valuable substance on the following described tract of land, to-wit, the S.E.J Sec. 34, T. 26, E. 25, in Bourbon county, and of taking out and of working the same, together with the right of way and surface use of such land as may be necessary for the economical and efficient working of the same.'” The only consideration moving from the mining company to Sweeney for this lease, as the same is expressed in the written contract, is as follows: One dollar paid down, one cent royalty on each bushel of coal taken from the leased premises, except that “ all coal from the shafts, entries, turnouts, aircourses, and coal used at the works, is to be free from rental or royalty.” “The Fort Scott Coal and Mining Company also agree to pay to said John Sweeney royalty to the amount of $500 on or before the first day of May 1873 — said money to be considered as royalty in advance, if said company have not at that time taken out 50,000 bushels of coal.” Said $500 was not paid when it became due, and on May 8th 1873 Sweeney com menced this action against said company to recover the same. The defendant answered, alleging as a defense to the plaintiff’s cause of action, “ that the ■ consideration moving the defendant to take and enter into said lease and agreement was, that the defendant might have the right to go upon the land therein described and dig and remove therefrom good, merchantable and marketable coal, which it was believed and imderstood at said time by the plaintiff and defendant was to be found therein. Defendant says that there was not, nor is there, any good, marketable or merchantable coal upon or in said premises; nor was there nor is there any coal upon or in said premises, as was supposed at the time of making said lease and agreement; and that Sweeney agreed and promised, at the time of making the lease, that the coal to be found and taken from the leased premises was good and merchantable coal.” The case was tried before the court and a jury. The defendant offered to introduce evidence showing that the coal taken from said premises was not good, merchantable, marketable coal, and that the defendant did not know at the time when the defendant entered into said written contract that said coal was not good merchantable coal. The court excluded the evidence, and afterward instructed the jury to find for the plaintiff, which the jury did; and judgment was rendered for the plaintiff and against the defendant for said $500, and interest and costs. The defendant now, as plaintiff in error, seeks to reverse that judgment.
There is no claim that there was no coal on or in said land. It would seem from the evidence offered and introduced that there was plenty of it. There may have been millions of bushels. Indeed, from anything appearing in the record the defendant may have taken from said land hundreds of thousands of bushels of coal before this suit was commenced. Neither is there anything in the record showing how much “ petroleum, lead or other valuable substance,” said land contained. The only claim of the defendant as a defense, is, that the coal found in said land is not “good, marketable, merchantable, coal.” Now suppose it is not: may not the plaintiff still recover? The plaintiff did not agree or promise that it should be good, marketable, merchantable coal. He did not make any warranty of any kind whatever; and no fraud is imputed. Besides, there is no failure of consideration, as is claimed by the defendant. The lease of the land, with all its incidents, in the aggregate, was the consideration for the defendant’s promises. And this consideration, seems to be entire, and not divisible. At least this would seem to be so where both the cause of action and the defense are purely of- a legal character, as contradistinguished from an equitable character. With the lease the defendant gets more than the mere right to take good, merchantable coal from the plaintiff’s premises. The defendant actually géts “the sole and exclusive right and privilege of boring, digging, and otherwise prospecting for coal, petroleum, lead or other valuable substance on” said premises, with the right “of taking out and of working the same,” that is, of taking out and working the coal, petroleum, lead, etc., whether the same be marketable or not, “together with the right of way and surface use of such land as may be necessary for the economical and efficient working of the same,” and the free use of much of the coal taken out; and all this the defendant gets for at least two years, and longer if the defendant chooses. Now, if the plaintiff is to get pay only for the good merchantable coal taken from his premises, where will he get pay for the exclusive right of boring, digging and prospecting on his land for two or more years for coal, petroleum, lead, etc., and for the coal not merchantable, and for the petroleum, lead, etc., taken from the land? And where will he get pay for the right of way and surface use of his land, etc.? It is evident from the contract that it was the intention of the parties that this $500 should be paid by the defendant to the plaintiff, whatever might be the result of the boring and digging for coal, petroleum, lead, etc. Both the terms- of the contract and the reason of the transaction, show this to be true. It will be noticed that the defendant does not ask to have the contract canceled. The defendant does not choose to relinquish any right which it has obtained by virtue of the contract. It still clings to the right to bore and dig on the plaintiff’s land for the full two years, or longer. Indeed, the defendant does not wish to dispense with any portion of the contract, except that portion which imposes duties and obligations upon itself, and confers benefits on the plaintiff. But a contract cannot be considered good as to one party, and bad as to the other. And as the defendant does not even ask to have the- contract canceled or rescinded, it must be enforced as to both parties. And there can be no question that by its terms the plaintiff is entitled to recover.
So far as the answer of the defendant attempts to vary or modify the terms of the written contract, or to allege that the contract was different from what the written contract itself shows it to be, the answer itself is a nullity. And this is about all the answer contains. The answer in fact states no defense, and the evidence offered and introduced by the defendant was even more defective than the answer. The purport of both was to vary and contradict the terms and import of the written contract entered into between the parties. Taking both together, and they did not make out any sufficient defense to the plaintiff’s action. The court therefore did not err in excluding said evidence, and in instructing the jury to find for the plaintiff.
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 Martin Smith against the city of Leavenworth, to recover for injuries received by the plaintiff by reason of a defective sidewalk in said city. The facts of the case, as shown by the special verdict of the jury, are as follows:
First: The defendant is a municipal corporation, a city of the first class, duly organized and existing under the laws of the state of Kansas, and as such has the charge and control of the public streets within the limits of the city.
Second: Shawnee street is a public street of said corporation, graded, curbed, guttered, macadamized, and sidewalked ten feet in width, by said corporation.
Third: On the north side of said street was erected in 1868 a building on lot 9, in block 50. In front of said building was a cellar-way, which extended into the cellar by steps, six feet deep.
Fourth: From the erection of-said building until the second day of May 1873, said cellar-way was unprotected, and several citizens fell therein.
Fifth: On the evening of the 3d of May 1873, between the hours of seven and eight o’clock, the plaintiff, in going from his residence to his place of business, using ordinary care, and without any fault on his part, accidentally fell into said cellar-way.
Sixth: On the 2d day of May 1873, John Kirch, who was a tenant in possession of said building, caused a trap-door to be put over said cellar-way. On the 3d day of May said trap-door had been repeatedly shut and opened before said accident. But there was no protection to said cellar-way when said door was not down. The defendant, the city, did not know of the fact that Kirch had caused said door to be made and put down until after the injury to the plaintiff. The cellar, to which said opening or cellar-way is, was rented and used by a number of hucksters, dealing on the sidewalk near by. When said door was down over the cellar-way .it sufficiently protected the same. At the time of the accident to the plaintiff it had been up from twenty to thirty minutes. Mr. Kirch put down the door for his own convenience, and the protection of his customers.
Seventh: The corporation defendant had full notice of the existence of said opening or cellar-way from the time of the erection of said building, and of the condition it was in. But the defendant did not know that said trap-door had been put down by Kirch.
Eighth: From said fall the plaintiff sustained a fracture of his left arm, near the wrist, whereby he was confined to his house for three weeks, and was rendered unfit to attend to his business for over three months, and had to employ assistance to attend to his business while so disabled, and had to employ physicians, and incur expenditures for medical attention.
Ninth: We, the jury, find, if the above facts are sustained by the court, the plaintiff is entitled to recover $650 damages.
The only question involved in this case, as we think, is, whether the plaintiff ought to recover upon the foregoing facts. It is true, the plaintiff suggests some other matters, but we hardly suppose he expects a reversal of the judgment below on account of them. For instance, he asked the court below to instruct the jury to make the following additional findings of fact, to-wit: “ That the defendant was guilty of negligence in permitting said opening to be made, and to remain in said sidewalk ;” “ That the defendant was guilty of negligence in omitting to have said opening properly guarded;” “That said opening never had been and was not at the time of the injury to said plaintiff properly and sufficiently guarded.” The court refused. He assigned this refusal for error. He mentions the same in his statement of facts in his brief, but afterward he does not even mention the matter. There are seyeral reasons why we should not reverse the judgment of the court below on account of its rulings in this last-mentioned matter: lst.-The plaintiff asked the court orally, and not in writing, to instruct the jury to make said additional findings. 2d.-When he made the request it would seem that the jury had already been out for some time considering as to what their verdict should be, and had not yet returned into court with their verdict. 3d.-He asked that the court should instruct the-jury to find a particular way, and did not propose to allow the jury to exercise any judgment or discretion in the matter. 4th. — He made no objection to the verdict at the time the same was rendered because it did not contain these additional findings, but on the contrary, he seemed to be satisfied with the verdict without these findings. When the jury returned their verdict into court, the court below said to the plaintiff, “Are there any exceptions on the part of the plaintiff?” The plaintiff then made some suggestions, (not mentioning however these additional findings,) and the verdict was amended in accordance with his suggestions. The court then said, “Is there anything further by the plaintiff?” and the plaintiff answered, “No, sir.” 5th.-The plaintiff seems finally to have abandoned the matter, for he has not mentioned the same in the argument in his brief.
We now return to the real question in the case, which is, which party should recover upon the facts found by the jury, the plaintiff, or the defendant? This is a difficult question to solve. It seems to be new. There is no case to be found in the books precisely like it; and different minds might reach different conclusions with reference thereto. We suppose however that the following propositions will be conceded to be good law: lst.-The fee of all streets, including that portion of the same on which the sidewalk is constructed, in any city in Kansas, is in the county in which such city is situated, for the use and benefit of the public. (Randal v. Elder, 12 Kas. 257, 261, and cases there cited.) 2d.-The only legiti mate use that can be made of a street, or the sidewalk, by any private person, is for passing and repassing upon the same. This would probably be different if the private person owned the fee of the land occupied by the street. 3d.-Any person traveling upon a street, has a right to use any portion of the same for that purpose not already otherwise in use. 4th .-A lot-owner, or any person under him, has a right to use any portion of a - street in front of his lot in passing to or from his lot, and to and from the improvements on the same, including the house, cellar, etc. 5th.-Under existing laws, no city has any power to confer upon any private person any right to use a street, or any portion of the same, for the purpose of a cellar-way, or for any other purpose except for passing and repassing. 6th.-It is the duty of a city to keep its sidewalks in good repair, and in such condition as to make them safe for the traveling public. 7th.-It is negligence for a city to allow a cellar-way to be made and left open in a street where persons are in the habit of traveling. 8th.-A city is not liable for negligence which does not result in the injury of any person. And in order to make a city liable for negligence, the negligence must still be operating when the injury occurs. 9th.-While the use of any portion of a street for a private cellar-way is unauthorized by law, yet, if the cellar-way were so guarded as to be perfectly safe, under all ordinary circumstances, for persons traveling upon such street, the city would not be so guilty of negligence, in such a case, as to be liable for some unforeseen injury, resulting from some fortuitous circumstance, which could not in the ordinary course of events be expected or anticipated as likely to occur.
Wé therefore conclude, that, where a city permits a cellar-way to.be constructed in the sidewalk of one of its principal streets, which cellar-way is not guarded in any manner except by a trap-door, and is dangerous for persons traveling on said sidewalk when said trap-door is not closed, and where said city permits the person occupying the adjoining lot, and those acting under him, to open and close said trap-door at their option, the city is liable for any injury that occurs by reason of any person falling, without fault on his part, into said cellar-way when said trap-door is left open. The city was unquestionably guilty of negligence, and of gross negligence, in allowing said cellar-way to be constructed and left open without any guard for such a great length of time. And even when the trap-door was put down, the city had no agency in the matter, and no knowledge of the same, and did not even afterward have any knowledge of the same until after the accident occurred. And it will also be noticed, that said trap-door was not put down as a constant and permanent guard for said cellar-way; but it was put down with the unquestioned intention that it should be opened and closed at the option of those using the cellar. Hence, the original negligence of the city, in allowing a dangerous opening to be made in said sidewalk, was not. totally terminated and ended by the construction of a guard intended to be constant, permanent and lasting, but such negligence was merely mitigated by the construction of a guard that would sometimes be sufficient, and sometimes not sufficient. The original negligence of the city continued, merely modified and mitigated. And nothing will wholly terminate the negligence of the city except to so close up the cellar-way as to make it permanently and constantly safe for those traveling on the sidewalk.
The judgment of the court below will be reversed, and cause remanded, with the order that the court below render judgment on the special verdict of the jury in favor of the plaintiff and against the defendant, for $650 damages, and costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Cowen against Haynes, upon a judgment rendered by the district court of Caldwell county, Texas. Said judgment was rendered in an action wherein said Cowen was plaintiff, and one John N. Whittington was defendant. That portion of the judgment more particularly applicable to this case reads as follows: “And it appearing to the court, from the answer of George G. Haynes filed in this suit, that the said Haynes is indebted to the defendant Whittington in the sum of $146.54, coin, it is therefore ordered and adjudged by the court, that the' plaintiff W. E. Cowen do have and recover of and from George G. Haynes, as garnishee, the sum of $146.54 in coin.” The record of the judgment was attested by the certificates of the clerk and judge, as follows:
State op Texas, Caldwell County:
I, James A. Wiley, clerk of the district court of said county, certify that the foregoing is a true copy of a judgment rendered by the district court of said county on the 18th day of April 1872, in the case of W. E. Cowen plaintiff vs. John N. Whittington, T. J. Lee, and E. A. Brown, and Alvin Haynes and George G. Haynes garnishees. Given under my hand, and the seal of the court, this December 2d, 1872.
[seal.] Jas. A. Wiley, Clerk I). (7.,. C. Co.
State op Texas, County op Caldwell :
I, Henry Manny, presiding judge of the 22d judicial district in said state of Texas, do hereby certify, that James A. Wiley, whose signature appears to the foregoing certificate of authentication, is the clerk of said district court of the 22d judicial district, within and for the said county of Caldwell; that he has the custody of the records of said court; that said certificate of authentication is in due form of law, and that the signature of the said James A. Wiley, to said certificate, is his genuine signature, and entitled to full faith and credit. In testimony whereof, I have hereunto set my hand and the seal of said court, this 5th of May 1873. [seal.] Henry Manny,
Judge of the 8®d judicial district of Texas.
At the trial of this case — which was before the court below, without a jury — the foregoing attested copy of the record of said judgment was read in evidence, over the objection of the defendant below, and upon this evidence the court below found in favor of the plaintiff and against the defendant, and rendered judgment accordingly; and the defendant below, as plaintiff in error, now brings the case to this court. In considering this case we shall follow the brief of plaintiff in error.
I. The plaintiff in error says in his brief: “The paper read in evidence by defendant in error, in the court below, to which plaintiff in error excepted, is only a copy of a judgment entry, and does not purport to be and is not a record of the proceedings of any court.” It is true, that “the paper read in evidence,” “is only a copy of a judgment entry;” but it is not true that it does not purport to be the record of the proceedings of any court. It does purport to be a record of proceedings of the district court of Caldwell county, Texas. It commences as follows:
“State op Texas, Caldwell County. Be it remembered, that on the 18th day of April, 1872, the following proceedings were had in the district court of Caldwell county, Texas, viz.:
“W. H. Cowen vs. John N. Whittington.— No. 1317. — In this cause came the plaintiff, by attorney, and announced himself ready for trial,” etc.
Then follows a proceeding with reference to Martha Whittington, intervenor, who appears and withdraws her plea of intervention. Then follows a judgment in favor of the plaintiff Cowen, and against John N. Whittington, T. J. Lee and R. A. Brown, on an instrument in writing which is set out in the record. And the record shows that they all had “been legally cited to appear and answer this suit.” Then follows a judgment in favor of the plaintiff Cowan, and against Alvin Haynes, garnishee. Then follows a judgment in favor of the plaintiff Cowen, and against George G. Haynes, garnishee, a copy of which judgment we have already given. And then follows a proceeding with reference to some attached property. The proper objection to the introduction of this record in evidence would probably have been, that it is not a full and complete record of all the proceedings in the case. But even this objection would not be tenable. As we understand the law, a part of the record of a case may sometimes be introduced in evidence. A record of a case is often divisible into many distinct parts, and each part is substantially a record of itself. And when the record ’ is so divisible, any distinct portion thereof may be introduced in evidence, if relevant, without introducing the other portions of the record. Chinn v. Caldwell, 4 Bibb, (Ky.) 543; McCuire v. Kouns, 7 Monroe, 386; Lee v. Lee, 21 Mo. 531, 534; Look v. Winston, 10 Ala. 849; Smith v. McGhee, 14 Ala. 404; Henderson v. Cargill, 31 Miss. 367, 413, 414. Indeed, it would seem useless and unnecessary, or even worse than useless and unnecessary, to introduce in evidence such portions of the record as may be entirely' irrelevant to the case. Of course, where the record is indivisible, one portion of the same cannot be introduced without introducing the whole of it. And probably, as a rule, no portion of a record should be allowed to be introduced for the purpose of proving a particular fact, without requiring that all of the record which tends io prove or disprove this particular fact should also be introduced. But this to a great extent must rest in the sound judicial discretion of the court trying the cause. We think the court below did not err in allowing said judgment to be introduced in evidence.
But the next question arising is, what force and effect must be given to- it? Now, we shall assume that the court rendering the judgment was and is a court of record, having general original jurisdiction. The name of the court, the seal thereof, there’being a clerk, a sheriff, and a presiding judge, the body of the record, and the attestation, all indicate it; the constitution and laws of Texas, and the supreme court reports of that state, show it; and the plaintiff in error has made no point that it is not such a court, or that it has not such jurisdiction. (For a discussion of ..substantially the same questions in another case, see Dodge v. Coffin, ante, pp. 277, 280, 283.) Now for the purpose of determining the force and -effect of this judgment, we must look to the record itself; and as it constitutes only a portion of the record of the case in which it was rendered, we think it cannot prove more than it purports to prove. No liberal presumptions can be entertained or resorted to for the purpose of supplying omissions, aiding deficiencies, or extending the import of its language. It is only when the whole of the record is introduced in evidence, that liberal presumptions can be invoked to aid the record. (Hargis v. Morse, 7 Kas. 415; Ogden v. Walters, 12 Kas. 283, 292.) But the record we are now considering has no need of aid from liberal presumptions. It of itself shows that a judgment, sufficiently correct in form, was rendered by the court. And it of itself shows that the court rendering the judgment had jurisdiction of all the necessary parties. This shows the judgment to be at least prima facie valid. (Freeman on Judgments, §130.) The defendant Haynes gave to the court jurisdiction over himself by filing his answer as garnishee. If the record of the judgment had failed to show that the court had jurisdiction of the parties, then it would have been necessary for the plaintiff Cowen to have introduced some other portion of the record for the purpose of showing that'fact, or the judgment would be held to be void. But as the record of the judgment itself showed jurisdiction of the parties, at least prima facie, it was unnecessary for the plaintiff Cowen to introduce other evidence tending to show the same fact until his prima facie showing should be controverted by other evidence. There was no evidence introduced tending to impeach the validity of said judgment, and therefore we must hold it to be valid.
II. In the second place the plaintiff in error says, “the clerk’s attestation was made December 2d 1872, and the judge’s certificate on May 5th 1873; and the certificate nowhere shows that the clerk was on December 2d 1872 — the time of the clerk’s attestation — the clerk of said court; the certificate of the judge is therefore insufficient.” Perhaps from the whole of the judge’s certificate it may be gathered that the clerk was clerk on December 2d 1872. But even if it cannot, it makes no difference. The act of congress does not require or even authorize the judge to certify who is clerk. Duncommon v. Hysinger, 14 Ill. 249; Thompson v. Manrow, 1 Cal. 428; Regan v. McCormick, 4 Harr. (Del.) 435; Craig v. Brown, 1 Peters C. C. 352; Gavitt v. Snowhill, 26 N. J. Law, (2 Dutcher) 76; Strode v. Churchill, 2 Litt. (Ky.) 75; Ferguson v. Howard, 7 Cranch, 408. The act of congress provides that, “The records and judicial proceedings of the courts of any state, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with the certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form. And .the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the state from whence the said records are or shall be taken.” (1 U. S. Stat. at Large, 122.) Upon this subject the supreme court of Illinois says: “In this case, the clerk has certified a transcript of the proceedings under the seal of the court; and the presiding judge of the court has certified that the attestation is in due form. This is a full compliance with the requirements of the law. The judge has only to certify that the attestation is in due form'. He is not required to state that the person who certifies the record is the clerk of the court, or that the seal attached by him is the seal of the court. The seal speaks for itself, and is presumed to be affixed by the officer having the custody thereof, as well as competent authority to do the act. The phrase, ‘in due form/ means the mode of attestation in use in the state from whence the record comes. The record must be attested according to that mode; and the certificate of the judge is made the evidence of that fact. This is the only object of his certificate. When a record is attested by the clerk, under the seal of the court, in conformity to the law or usage of the state where the proceedings are had, it is entitled to the same faith and credit in every other state.” (Duncommon v. Hysinger, 14 Ill. 250.) It is not an uncommon thing for the judge’s certificate to be dated one or more days subsequent to the clerk’s certificate, and yet we know of no case where the attestation has been held void for that reason. We think the attestation in this case is sufficient.
III. But it is claimed by plaintiff in error, that “ the certificate of the judge does not show him to have been the judge of the court rendering the judgment.” Now the judgment was rendered by the district court of Caldwell county, Texas. The clerk, in his attestation, designates himself as the clerk of the district court of Caldwell county, Texas. The judge commences his certificate by saying, “State of Texas, County of Caldwell; ” he designates himself as “ presiding judge of the 22d judicial district in said state of Texas;” and he certifies that the person who attests as clerk “is the clerk of said district court of the 22d judicial district, within and for the said county of Caldwell,” etc. This we think clearly shows that the judge is the presiding judge of the district court for Caldwell county. He is presiding judge for the whole of the 22d judicial district, and it is shown that a clerk of said district is the clerk of the court “within and for” the whole of said county. Now, he could not be the clerk of the court of said district “for the said county,” if the district does not embrace the whole of said county within its limits.
TV. Plaintiff in error next complains, that, “the plaintiff in the court below declares on a judgment rendered on April 15th 1872, at a term of the court begun and held April 18th 1872,” these averments in the petition of the plaintiff below do not purport to be recitals of the record. They are mere allegations of time; and while they show carelessness on the part of the pleader, still they are not such material allegations as require that they be proved as laid. Under them the true time may be shown; and it was shown that the judgment was rendered April 18fch 1872.
Y. Plaintiff in error further complains, that, “ the paper purports to be in a case against Whittington only, by its caption, and is therefore uncertain as to who were the parties to the suit.” The caption plainly enough shows that Cowen was plaintiff, and that Whittington was a defendant; and so does the body of the judgment. And the body of the judgment also shows that the plaintiff in error, Haynes, was a garnishee in the suit,.owing Whittington $146.54. This we think is sufficient.
VI. Plaintiff in error finally and lastly complains, that “it nowhere appears that Haynes was made garnishee in the case, or what he answered.” We think it does; and the substance of his answer is given.
The judgment of the court below will be affirmed.
Kingman, C. J., concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Appellant was sentenced to the penitentiary for the term of twelve years, as upon conviction upon an information for burglary in the first degree. A motion in arrest of judgment was overruled, and this is the error complained of. The attorney-general, after an examination of the information, very properly concedes the error. The in-' formation is for burglary, but fails to charge any entry. , It charges that defendant “feloniously and burglariously, forcibly burst and did break, with intent,” etc. It is well settled that to constitute burglary there must be both a breaking and an entry. Our statute makes no change in the law in that respect. The motion in arrest ought therefore to have been sustained, and the judgment of the district court will be reversed, and the case remanded with instructions to sustain the motion in arrest. The defendant will be returned from the penitentiary, and delivered over to the jailor of Crawford county, to abide the further order of the district court. Under §§ 279 and 280 of the criminal code a new information can be filed, and the defendant put upon trial thereunder.
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 Cartright against Smith, in a justice’s court, for the recovery of a certain hog which belonged to Cartright. The hog trespassed upon Smith’s premises. Smith took it up. Cart-, right demanded the hog, and tendered Smith three dollars for damages, cost and expense. Smith refused to receive the tender, or to give up the hog. Cartright then replevied th^, hog from Smith, and still has possession of the same. The action was tried by the justice without a jury. It is difficult to determine from the record in whose favor the justice found, or intended to find. But the justice rendered judgment in favor of the defendant for three dollars damages, and rendered judgment in favor of the plaintiff for costs, and did not render any judgment concerning the property in controversy. The defendant .then took the case to the district court on petition in error. The district court reversed the judgment of the justice of the peace, and then rendered judgment in favor of said defendant Smith for his costs, both in the district court and in the justice-’s court. Now whether the said Smith wrongfully detained said hog or not, we cannot tell from the record. Whether the justice intended to find that Smith wrongfully or rightfully detained said hog, we cannot tell from the record. Whether the judgment in the justice’s court should have been for the plaintiff, or for the defendant, we cannot tell from the record. And therefore, whether the district court erred in its judgment or not, we cannot tell from the record. Perhaps it is fair, where a plaintiff institutes proceedings, and causes costs to be made, that he should pay such costs, unless he make the record show affirmatively that he should not pay them. The apparent reason given by the justice for imposing the costs upon the defendant is certainly not sufficient.
As it is not shown affirmatively that the court below erred, the judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The petition in the court below alleged in substance that one W. A. Cooper owed the plaintiff below, John L. Pendery, on a promissory note, the sum of $1,140.40; that said Cooper sold and agreed to deliver to the defendant below, M. S. Grant, fifty fanning mills, for which Grant was to pay said plaintiff the sum of $750, of which $400 was to be Paid in • farming implements, and the other $350 in cash; that the plaintiff then gave to Cooper a credit of $750, on said note; that said mills were tendered and delivered to said defendant, and still remain subject to his control; that the defendant has failed and refuses to pay said $750, or any part thereof, either in farming implements or in cash, and plaintiff demanded judgment for that amount. The defendant filed answer to said petition which is in substance, first, a general denial; second, the plaintiff and Cooper “retook, carried away, and themselves disposed of all said mills;” third, the defendant “never promised in writing” to pay the plaintiff anything. Afterward the case was called for trial; a jury was impanneled and sworn, and the plaintiff then, and for the first time, asked leave of the court to file a reply to the defendant’s answer. The court granted such leave. The reply, which was a general denial, was filed. The trial then proceeded, the jury not being resworn. And all this was done over the objections and exceptions of the defendant. When said reply was filed the “defendant moved the court to postpone the trial of said action, because, he said, he was not ready to proceed then to the trial of the issues made by said reply; but said court then overruled said motion, to which ruling and decision of said court said defendant excepted. And then said defendant moved said court to continue said action to the next term of said court because of said filing of such reply, but said court then overruled said motion, to which ruling and decision.of said court said defendant then excepted.” No reason was given for objecting to the filing of said reply, and no other or different reason than those above mentioned was given for asking for a postponement of the trial, or for asking for a continuance. And the motions made for such postponement and continuance were not supported by any oath or affidavit. It will be noticed that the reply could apply to the second defense stated in defendant’s answer only, as the other two defenses did not need a reply. During the trial there were several exceptions taken by the defendant to certain rulings of the court with regard to the introduction of evidence, and with regard to giving or refusing instructions to the jury. The jury found a special verdict, which, as we think, is a substantial finding upon all the issues in the case in favor of the plaintiff and against the defendant, and the jury assessed the plaintiff’s damages at $700. Motions were made by the defendant for a new trial, and for judgment in his favor upon the verdict, both of which motions the court overruled and then rendered judgment in favor of the plaintiff and against the defendant for $700 and costs. And to reverse this judgment the defendant now prosecutes this petition in error.
Probably the most difficult question in the case is, whether the court below abused its discretion by allowing said reply to be filed as it did, and then immediately proceeding with the trial of the cause. The plaintiff was apparently guilty of gross ladies in not filing his reply sooner. He,had then been for more than four months in default for want of a reply; and he did not even then ask to file his reply until after the'jury had been impanneled and sworn to try the cause. And the court then allowed him to file the reply without the slightest showing of diligence, without the slightest showing that his reply was true, or that the defense which the reply put in issue was not true, and without the slightest terms of any kind whatever being imposed upon him. Some terms ought evidently to have been imposed upon him as a condition upon which he might file the reply — a verification by affidavit of the truth of the reply, a postponement of the trial, a continuance of the ease, or a payment of the costs of the term, or some portion thereof. But still we cannot say that the court below so abused its discretion that we must reverse the judgment on that account; It is true, the defendant said (not under oath, not by affidavit,) that “he was not ready to proceed then to the trial of the issues made by said reply.” But he did not even intimate that he ever would be ready to try such issues. He did not claim that he had the slightest hope of ever being better prepared to try such issues than he was at that very time. Hence it does not seem that delay would have been of any benefit to him. That the court, exercising a sound judicial discretion, had a right to allow said reply to be filed, and to proceed immediately with the trial, we suppose will not be denied. (Civil Code, § 106; Taylor v. Hosick, 13 Kas. 518, 526.) It was not necessary that the jury should be resworn. They had already been “sworn, to well and truly try the matters submitted to them in the case in hearing, and a true verdict give according to the law and the evidence,” (Code, § 274,) and that was sufficient. They were not sworn to try the matters that had already been subpiitted to them, but to try the matters that should afterward be submitted to them. And the matters to be submitted to them may be changed during the trial.
It seems hardly necessary for us to say that the contract between Grant, Cooper and Pendery is not void as coming within the statute of frauds. (Gen. Stat. 505, ch. 43, § 6.) Grant did not merely agree to pay the debt of Cooper, but he agreed to pay Ms own debt to Pendery. But it is claimed that the verdict of the iury does not show any consent on the part of Cooper to the payment by Grant to Pendery. Now the fifth finding of the jury states among other things that, “The said defendant Grant agreed with said Cooper to take fifty of said mills,” etc., “ and agreed to pay the proceeds, amounting to the sum of $750, to the plaintiff Pendery,” etc. How could there be an agreement between Grant and Cooper, that Grant should pay Pendery $750 without Cooper consenting to it? The contract was in fact .made between Grant, Cooper and Pendery. All participated in it, and all agreed to it. And Pendery, on the very day that the contract was made, gave Cooper the credit on the note. Grant not only agreed with and promised Cooper to pay Pendery, but he also agreed with and promised Pendery himself to do so. The arrangement was mutual and reciprocal between the three parties. But in any case, Pendery has obtained all of Cooper’s interest in said $750. He is the real party in interest with regard thereto, and therefore he undoubtedly has the right to sue for it. (As to a contract made between two persons for the benefit of a third, see Anthony v. Herman, 14 Kas. 494.)
It is claimed that the tender of said mills was not sufficient. A portion of them were duly tendered, and Grant, without any sufficient reason, refused to accept or receive them, or any of the mills sold to him, and then - , they were ail stored m a sate and convenient place for the benefit of Grant, and subject to his order, and he was duly notified thereof. This was sufficient. The refusal of Grant to accept said mills excused the formal tender and delivery of those not formally tendered.
The defendant offered in evidence the deposition of a certain witness; the plaintiff objected; the court overruled the objection. The defendant then read in evidence the examination-in-chief of said witness, and refused to read the cross-examination. The plaintiff then moved the court to strike out that portion of the deposition that had been read, unless the defendant would offer and read in evidence the balance of the deposition. The defendant still refusing to read the balance of said deposition, the court struck out what had been read, and instructed the jury not to consider the same. We see no error in this.
The 7th, 8th, and 10th instructions which the defendant asked to have given to the jury, and which the court refused, are not applicable to the facts of this case. (Jardicke v. Serafford, ante, 120.)
The 17th instruction which the defendant asked to have given to the jury, and which the court refused, was properly refused. It was with regard to a notice served by Cooper upon Grant. The notice was made out in duplicate, and one copy was served on Grant, and the other was' retained by Pendery. Pendery’s copy was intro duced in evidence upon- the ■ preliminary (but mistaken) evidence that it was the copy served on Grant. Afterward it was shown that Grant was served, prior to a former trial of the case, with a notice to produce his copy on that trial. And it was also shown that Grant, on that trial, testified'that he could not find his copy of the notice. Grant also testified on the present and last trial of this case, and testified subsequently to the introduction of Pendery’s copy of said notice in evidence, and he did not say a word about it. The instruction asked was, in substance, that the jury should not consider said Pendery’s copy of the notice at all, even if they should consider it a true copy of the notice served on Grant. We think the instruction was properly refused. Besides, the notice had but very little materiality in the case, and the jury would probably and rightfully have found just as they did if the notice had been stricken out of the evidence.’
The judgment of the court below is affirmed.
Kingman, C. J., concurring.
Brewer, J., not sitting in the case. | [
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The opinion of the court was delivered by
Brewer, J.:
Two questions were presented and discussed by counsel in the argument of this case. First: Where a petition for the relocation of a county-seat has been presented to the county commissioners, and acted on by them, an election ■ordered, two elections had, the first not resulting in a majority for any place, the votes canvassed, and the place receiving the majority of the votes at the second election declared the county-seat, will the court inquire into the sufficiency of the petition, and hear testimony to show that some of the names thereon were improperly there, and that therefore it did not contain the requisite number of petitioners? Second: If a majority of the votes actually cast at a county-seat election are in favor of one place, and it is declared the county-seat, will the court under our statutes receive any other evidence to show that the number of legal voters in the county exceeded the number of votes cast, and inquire whether the place declared the chosen county-seat actually received the expressed consent of a majority of the electors. Both of these questions were argued with great ability by the respective counsel, and are of no little difficulty. But after a careful consideration we are constrained to answer both in the negative.
In reference to the first question it may be remarked, that the manner of contesting county-seat elections, and the extent to which the courts may go in such contests, is regulated by statute. There is in the nature of things no absolute necessity for a petition of any kind. The legislature may authorize the commissioners, without any petition, and upon their own motion, to submit to the people the question of a change • in the county-seat. Or, requiring a petition, it may specify the kind of petition, the number of signers, etc. It may leave the action of the commissioners open to investigation in the courts, or it may make their determination conclusive as to the sufficiency of the petition. Now, in the winter of 1871, in the case of The State, ex rel., v. Stockwell, 7 Kas. 98, construing.the statute of 1869, (Laws of 1869, ch. 27, p. 101,) we held that under .the authority therein given we cou’ld inquire into any of the preliminary matters — that any matter of substance enjoined by law, and omitted, or improperly done, could be shown for the purpose of invalidating the election. There was no restriction in the statute, and the right was given to “contest the validity of the vote.” And this as we held was broad enough to include all prior proceedings. The law of 1871, while making many changes, made, in this respect, only a verbal change. It provided that “ the validity of the election * * * shall be tried and determined.” (Laws of 1871, p. 193, §7.) But the subsequent legislature, that of 1872, amended by adding this proviso: “Provided, however, that in no case shall the validity of any election be inquired into beyond the one last had, and upon which the proceeding is based.” (Laws of 1872, p. 271, § 1.) Now, by this proviso the legislature plainly intended some restriction on the limits of inquiry in such contests. Coming at the session after the decision of this court construing the statute, it is not unreasonable to suppose that it was made with reference thereto, and was intended to cut off some portion of the broad field of inquiry to which that decision opened.. It meant to say, that when a contest was made, some things should be considered final, and not open to attack. It says, that only the validity of the last election, the one upon which the proceeding is based, shall be inquired into. Now the only case in which the law contemplates two elections is, in the relocation of county-seats. Does it not plainly follow, that when the two elections have been held, it means to forbid inquiry into the validity of the first? that the courts were bound to accept the prior election, and consequently the proceedings upon which it was based, as valid and regular, and could only inquire whether the last election was legally conducted, and the actual result of the voting legally ascertained and declared? Counsel, to obviate the force of this argument, contend that the term “ election ” does not properly apply to the separate days’ voting — that there is no “election” till a result is reached, and some place has received the requisite majority — that in the word is involved the idea of ehoice, and selection, and that there is no choice or selection until some place is chosen or selected. Counsel may be technically correct in his definition; but the legislature has in the very statute used the word in a different sense. It speaks of the first day’s voting as an “ election,” and says that, if at that election no place receives a majority, a second “election” shall be had. And such is a common use of the term. Now when the legislature has used a word in a statute in one sense, and with one meaning, when it subsequently uses the same word in legislation respecting the same subject-matter, it will be understood to have used it in the same sense, unless there be something in the context, or the nature of things, to indicate that it intended a different meaning thereby. The courts may not give it a different meaning to sustain their views of what the law ought to be. They must seek simply to ascertain the legislative intent, and then enforce it. We conclude therefore that we cannot now inquire into the sufficiency of the signatures to the petition. (Light v. The State, ex rel., 14 Kas. 489, 493.)
The second question is even more difficult. The constitution, art. 9, § 1, reads: “No county-seat shall be changed without the consent of. a majority of the electors of the county.” If there are three thousand electors in a county, and only thirteen hundred vote in favor of the change, by .what right can the legislature override the constitution, and say that the change may be made without the express consent of the majority? We do not doubt the restricting power of the constitutional provision; and whenever by any of the ordinary or prescribed means of ascertaining the fact, it appeal’s that a majority of the electors have not consented to the change, no change can be had. The question is not as to the effect of 'a fact, but the means of ascertaining it, the evidence to be received. Within certain limits the legislature has power to prescribe what shall be evidence,'prima facie,^or conclusive, of any fact. It may say that a tax-deed shall he prima facie evidence of the regularity of all the prior proceedings; that a judgment, or an award, shall be conclusive evidence of the amount due from the defendant. And when this evidence, which the legislature has prescribed, is produced, the courts must accept the fact as established. In this case, the legislature has said that the place receiving a majority of the votes cast, shall become the county-seat — thus making the numbei of votes cast the evidence of the number of electors. Doubt less the legislature might make other things evidence of this fact. It might require, as preliminary to every election, a registration, and make that registration the evidence. We do not mean that it may, by the mere machinery of rules of evidence, override or set at naught the restrictions of the constitution, or that it could arbitrarily make conclusive evidence of the number of voters, any list, or roll, which in the nature of things has no connection with that fact, and does not reasonably tend to prove it. But when it adopts as conclusive evidence of the fact anything which, according to the ordinary rules of human experience, reasonably tends to prove the fact, the courts are not at liberty to ignore or go behind such evidence. Now it is not merely the privilege, but it is the duty of every elector to vote. It is one of the obligations of citizenship. True, as a matter of fact every elector may not vote. So too every elector may not be registered. Yet there is a reasonable connection between either the number of votes cast, or the registration-list, and the number of electors, sufficient to justify the legislature in declaring that either of the former shall be deemed conclusive evidence of the latter. If it were not so, then that finality which in the best interests of society is often as important as mere certainty, might be fearfully endangered. If the legislature could not establish any such easily-ascerta.inable and convenient evidence of the fact, but the inquiry must always go to the actual number of persons in the county on the day of election having the legal qualification of electors, it is patent that at least in the larger and more densely populated counties an investigation might be opened, the cost and time of which would be simply immense. The injury which would result to the community from the suspense and delay of such an investigation, far exceeds that which flows from the possibility that there were enough voters who did not vote, or were not registered, to have changed the result. While the constitution must be accepted as the binding law, yet it must be construed in the light of common customs and accepted facts. And the three ordinary and recognized modes of ascertaining the number of electors, are, the census, a registration, and the actual voting. Neither of them may, in any given case, be exactly correct. Yet how little of testimony points with unerring certainty to the ultimate fact. Almost every kind of evidence is liable to come short of absolute exactness. Yet with these, as the ordinary evidences of the number of electors, if the constitution sought to compel a resort to other and more difficult, if more accurate evidence, it would seem as though such testimony ought to have been indicated. It provided for both a census, and a registration. Const., art. 2, § 26; art. 5, § 4. Is it unreasonable to suppose that it contemplated thereby all the uses to which they were ordinarily, and might reasonably be put, and among them that of furnishing the evidence of the number of electors? True, the legislature has in this respect failed to avail itself of either of these two kinds of testimony. But is it thereby restricted from falling back upon that testimony which, in the absence of census and registration, is the ordinarily-accepted evidence of the number of electors, to-wit, the number of votes cast? It is a general rule, in respect to elections, that where the number of the electoral body is fixed, as in case of the directors, or members of a corporation, or a legislature, there a majority means a majority-of the whole body. But where the electoral body is indefinite in numbers, as in ordinary popular elections, there a majority means a majority of the votes actually cast. But it is said, that the framers of the constitution evidently had this general rule in mind, and made special provisions for the several elections. Thus, for the passage of any bill or joint resolution, “a majority of all the members elected to each house voting in the affirmative,” is necessary: Const., art. 2, § 13. To authorize the contraction of certain indebtedness, the proposed law must “be ratified by a majority of all the votes cast, at such general election:” Art. 11, §6. To adopt amendments to the constitution requires only “a majority of the electors voting on said amendments:” Art. 14, § 1. Having been so precise in these matters, must it not be held that they intended to be equally precise in forbidding the change of a county-seat without the consent of a majority of the electors? There is doubtless great force in this argument. But the objection to it is, that it simply brings us to the point of greatest difficulty, and that is, the determination of what evidence shall be accepted as conclusive of the fact. It must be noticed, that the vote of a majority is not necessary, nor even the formality of an election. The consent of a majority of the electors, in whatever form expressed, whether in election, or by petition, or otherwise, is sufficient. May it not be said, Avith great force, as it is often said in reference to ordinary popular elections, that those not voting consent to the action of those voting? Suppose that the matter was thrown open to full investigation, and an inquiry made as to the actual number of electors present in the county on the day of elections : would it be other than carrying out the strict letter of the constitution to inquire as to each elector not voting AArhether he consented to the change, and if the same proportion ran through the non-voting as the voting electors, to uphold and enforce the already-declared result? And yet, the mere statement of such a range of inquiry carries its own refutation. It seems to us therefore, that Avhere the legislature has proAdded an election as the means of ascertaining the Avi.shes of the electors of a county in reference to a change of the county-seat, and has made no provision for a registration, and has designated no other list or roll as the evidence of the number of electors, it may, under the constitutional provision quoted, declare that the place receiving a majority of the votes cast, shall be the county-seat. As these county-seat elections cannot be held on the days of general elections, these considerations do not apply to cases Avhere two or more questions are submitted at the same election, and more votes are cast upon one question than upon another, for there the highest number of votes cast upon any one question is clear evidence of the number of voters, which may not, in view of any such constitutional restriction as above quoted, be disregarded in any contest arising as to the decision of the other questions. Nor perhaps do they apply to cases where two elections are held so near together in time, that the courts may fairly say that the difference between the number of votes cast upon the two elections cannot reasonably be accounted for upon the theory of a change in the,number of electors. In the consideration of this question we have examined carefully the following cases, some sqggested by counsel in this case, others cited by counsel in a case of contested county-seat election, from Osage county, and others not cited by either: Taylor v. Taylor, 10 Minn. 107; The People, ex rel., v. Warfield, 20 Ill. 159; L. & U. Rld. Co. v. County C. H. Davidson Co., 1 Sneed, 691; State v. Winkelmeier, 35 Mo. 103; State, ex rel., v. Mayor St. Joseph, 37 Mo. 270; State v. Binder, 38 Mo. 450; State v. Sutterfield, 54 Mo. 391; Gillespie v. Palmer, 20 Wis. 544; Chester & L. N. G. Rld. Co. v. Comm’rs Caldwell Co., 72 N. C. 486; Hawkins v. Supervisors Carroll Co., 50 Miss. 735.
But it is said by counsel, that in the 4th section of the act relating to the removal of county-seats, (ch. 26, Gen. Stat. 247,) the legislature has provided that, “for the purpose of this act, the number of legal electors in the county shall be ascertained from the last assessment-rolls of the several township assessors in the county;” and that this makes another list the evidence of the number of electors, and that, as alleged, according to such list, the requisite majority was not obtained. The only “assessment-roll” prepared by township assessors required or authorized at the time of the passage of this county-seat act was that of personal property, on which the assessor was required to place a list of the persons, companies or corporations, in whose names the personal property was listed. (Gen. Stat. 1040, § 61.) Now it was not claimed by counsel that according to this, roll the number of votes cast was less than the number of voters; but the roll to which he refers was that required by ch. 86 of the Gen. Stat., “An act for the registration of adults.” But the objection to that is, that that registration-list is in no particular within the description of the roll specified in said § 4. It is not, or at least was not at the time of the passage of the county-seat act, a roll prepared by the township assessors, but one prepared by the county assessor. It is in no sense an “assessment-roll,” but a registration-list. It is not therefore within the letter of the statute; and there was at the time an assessment-roll prepared by the township assessors, as above indicated, which was within the letter. Nor is it within the spirit; for this registration list is not of electors,, but of “adults, over twenty-one years of age.” It includes both sexes, aliens, convicts, and other non-electors, as well as the electors; and no discrimination or distinction is called for. So that there is no means of ascertaining from this list the exact number of electors, and no greater probability of exactness, than is furnished by the returns of votes cast. And to make such registration - list conclusive in the matter of the voting, as well as to the number of petitioners, is in plain disregard of the express direction of the legislature, that a majority of the votes cast shall decide.
These questions arise on a motion to-quash an alternative writ of mandamus, and the motion to quash must be sustained.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
On the 19th of March 1874, defendant in error commenced an action in the district court of Clay county against the plaintiffs in error, who are husband and wife, to foreclose a mortgage. The petition set forth a note signed by the husband, and alleged the execution of a mortgage by both. On the 21st of March a summons was duly issued, and returned on the 28th with an indorsement of personal service by the sheriff upon each of the defendants. Afterward, and at the May Term of court, the husband making no appearance or defense, the wife makes a motion to set aside the return of service upon her, and files in support thereof two affidavits, her own and her husband’s. In her affidavit she swears that no copy of the summons was ever served upon her, and that she had no knowledge of the pendency of the action until the time of filing the motion. He swears that the sheriff gave’him two copies of the summons, one directed to himself, and one directed to his wife, and requested him to deliver the latter to his wife; but that he did not deliver it. This statement is repeated twice in the affidavit, and with only this difference: the first time he swears that, on “the- day of March 1874” the sheriff' delivered to him “two copies of a summons in the above action;” the second, that “on the 27th day of March 1874” the sheriff delivered to him “two copies of a summons in the above-entitled, action which are copies of the summons upon which the-sheriff has returned that he did on the 27th of March,” etc. The return of the sheriff shows service on the 28th of March. The district court overruled the mbtion, and this is the error complained of. Counsel for plaintiffs in error rely upon the 'case of Bond v. Wilson, 8 Kas. 228, as authority for reversing the ruling of the district court. But we must differ with them for two reasons. In that, the matter thrown open to inquiry was one not within the personal knowledge of the sheriff, but depending upon the information he might receive. Here the matter was within his personal knowledge. He either did or did not give a copy of the summons to Mrs. Starkweather, and which he did he knew. In that case Ch. Justice Kingman, in the opinion uses this language: “We know of no statute that makes a sheriff a final and exclusive' judge of where a man's residence is, or what is the age of a minor, or who are the officers of a corporation. * * * Of1 his own acts, his knowledge ought to be absolute, and himself officially responsible. Of such facts as are not in his special knowledge, he must act from information, which will often come from interested parties, and his return therefore ought not to be held conclusive.” We have made this reference to that case, not for the purpose of deciding that the return of the sheriff is not open to question in matters of his personal knowledge, but to prevent any misunderstanding as to the extent of that decision. A second reason why we think that case not authority for reversing, but rather for affirming, the ruling, is, that the question, in whatever cases it may arise, is one of evidence. There the district court found from the evidence against the return, and set it aside. We affirmed its findings upon the evidence. Here it finds in favor of the return, and upon that question of fact we must sustain its findings. Looking at it in the light of the evidence, and the ruling of the court cannot be disturbed. On the one hand it is the return of the sheriff, a disinterested party, and a sworn officer, which, if not conclusive, is the strongest kind of evidence. On the other, the denial of one witness, Mrs. Starkweather, corroborated to some extent by the testimony of her husband, both interested witnesses. The sheriff might on the 27th have given the two copies to Mr. Starkweather, and then on the 28th given one to Mrs. S., so that Mr. S.’s testimony only partially corroborates. At any rate, there is not enough testimony adverse to the return of the officer to warrant us in reversing the ruling of the district court, and it must be affirmed.
All .the Justices concurring. | [
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Knudson, J.:
This is an appeal from a district court’s order extending a protection from abuse (PFA) order for an additional year. K.S.A. 2010 Supp. 60-3107(e) states that a PFA order already in place “may” be extended for an additional year on motion from the plaintiff. Shannon Jordan filed a motion to extend a PFA order in place against her estranged husband Roy Jordan. After an evidentiary hearing, the district court granted the 1-year extension.
On October 29, 2009, Shannon filed a petition for a PFA order against her estranged husband, Roy. In the petition, Shannon claimed that Roy had abused her throughout their marriage and that a domestic violence charge was pending against him for an altercation in which he tried to harm her with a machete. The petition also cited a previous domestic violence conviction against Roy. The petition requested protection for Shannon and Shannon and Roy’s five children. An evidentiary hearing on the petition was conducted on November 16, 2009, and that same day the district court granted the PFA order. The order was granted only as to Shannon. On November 10, 2010, Shannon filed a motion to extend the PFA order. The parties were engaged in divorce proceedings at the time the PFA order was put in place and when Shannon sought an extension of it.
On November 29, 2010, an evidentiary hearing was held on the motion to extend the PFA order. Shannon testified at the hearing, stating that she was still fearful of Roy and that Roy had violated the PFA order. Roy also testified, claiming that he had not physically or verbally threatened Shannon since the PFA order was in place and that Shannon directed contact towards Roy. Roy also noted that he had not been arrested for violating the PFA order since it was put in place.
At the hearing, the parties testified about an incident that took place at a hospital at which Shannon was a patient. During the time that tire original PFA order was in place, Shannon was hospitalized after a suicide attempt. She testified that while she was in the hospital, Roy visited her. She said that he stood outside the window of her room. Roy testified that he was at the hospital that day because he brought the children to see Shannon. He said he stayed in the waiting room while the children visited Shannon.
Other incidents took place at events for the children. Shannon testified that Roy came to the YMCA while Shannon was with the children at gymnastics practice. Shannon testified that Roy came to the YMCA while Shannon was there with the children and watched Shannon “the whole time” rather than looking at the children. Roy, on the other hand, claimed that he was at the YMCA that day because gymnastics practice took place on his parenting day, and he exercised while the children were in practice. Shannon also claimed that Roy would come to school events for the kids and sit directly behind her and glare at her. Roy claimed that he sat far from Shannon at events like concerts and football games.
Another key dispute involved an exchange between Shannon and Roy before Shannon moved out of the house that the two had shared during their marriage. Shannon testified that Roy broke into the home and removed the locks from the doors while she was staying there. Roy countered by saying that he had possession of the home at the time and that Shannon had stayed past the date by which she was ordered to vacate. Roy testified that he did not change the locks; he broke into the home when it was in his possession because he had never been given keys to it.
Shannon testified that, at the time of the hearing, she was staying in a safe house and receiving counseling. She acknowledged that she was severely depressed, stating that she attempted suicide after she lost residential custody of her children, and thought that she was going to be homeless. Shannon said that she wanted the PFA order to be extended because it was “the only way [she could] legally ensure” her safety. Shannon acknowledged that Roy had not physically harmed her or directly contacted her since the PFA order was issued. She also acknowledged that she contacted Roy while the PFA order was in place but said that it was through text message to discuss exchanging the children.
The district court granted Shannon’s motion to extend, finding that Shannon “continue[d] to be fearful of [Roy] and she want[ed] the PFA order extended.” At the close of the hearing and in its subsequent order, the district court noted that whether to grant a 1-year extension under K.S.A. 2010 Supp. 60-3107(e) “appealed] to be entirely within the discretion of the trial court.” In its order, the district court also stated that the evidence presented at the evidentiary hearing on tire motion to extend the PFA order “would not in this Court’s opinion be sufficient for the granting of an original PFA order.” At the hearing, the district court stated that “subjectively, Shannon Jordan continue[d] to be fearful of Roy Jordan.” The order also referenced subjectivity, stating that the order was based “primarily upon [Shannon’s] subjective belief that a continuing PFA order [was] necessary for her safety and peace of mind.” Finally, the district court noted that Shannon and Roy were involved in divorce proceedings and keeping the PFA order in place “should serve to help maintain the peace between these parties.”
On appeal, Roy contends that the district court erred in granting Shannon’s motion in the exercise of sound judicial discretion. He argues that the order granting the extension was based on Shannon’s subjective conclusions which did not constitute substantial and competent evidence sufficient to support the grant of an extension. Roy argues that the district court was required to have presented substantial and competent evidence to support Shannon’s motion.
Before we consider the legal issues raised by Roy, we must consider whether his appeal should be dismissed for mootness because the 1-year extension of the PFA order has expired and is not subject as a matter of law to further extension. As a general rule an appellate court does not decide moot questions or render advisory opinions. See State v. Bennett, 288 Kan. 86, 89, 200 P.3d 455 (2009); Smith v. Martens, 279 Kan. 242, 244, 106 P.3d 28 (2005). However,
“[m]ootness is not a question of jurisdiction, and the courts have routinely acknowledged two exceptions to the rule. First, where a judgment is not enforceable only because of lapse of time or other changed circumstances and where dismissal of an issue will adversely affect rights vital to one of the parties, a court may address the issue. [Citations omitted.] Second, where an issue, although moot, is capable of repetition and raises concerns of public importance, a court may address the issue. [Citation omitted.]” State v. DuMars, 37 Kan. App. 2d 600, 605, 154 P.3d 1120, rev. denied 284 Kan. 948 (2007).
We have concluded a dismissal for mootness would be inappropriate. The issue as to the quantum of proof required to support a 1-year extension of a PFA order is capable of repetition and does raise a concern of public importance. Thus we move to the issues raised on appeal.
K.S.A. 2010 Supp. 60-3107(e) governs the initial grant of such an order and provides for the order to be extended. The statute reads, in relevant part: “[A] protective order or approved consent agreement shall remain in effect until modified or dismissed by the court and shall be for a fixed period of time not to exceed one year, except that, on motion of the plaintiff, such period may be extended for one additional year.” (Emphasis added.) K.S.A. 2010 Supp. 60-3107(e).
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) (citing Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 [2008]). “The fundamental rule governing interpretation of statutes is that the legislature’s intent governs if this court can ascertain that in tent. The court presumes that the legislature expressed its intent through the language of the statutory scheme. [Citation omitted.]” Unruh, 289 Kan. at 1193-94. In that respect, “[a]n appellate court’s first task is to ‘ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.’ ” Padron v. Lopez, 289 Kan. 1089, 1097, 220 P.3d 345 (2009) (quoting State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 [2007]).
The statute at issue states only that the PFA order “may” be extended on motion of the plaintiff. K.S.A. 2010 Supp. 60-3107(e). The word “may” is generally a trigger for a statute that is discretionary. Shannon makes this point on appeal by referencing literature from the Kansas Judicial Council: “One way to determine whether the discretionary standard will apply is to look at the language of the applicable statute. Statutes typically use the word ‘may’ to indicate that the decision is discretionary.” Kansas Judicial Council, Kansas Appellate Practice Handbook § 8.7 (4th ed. 2010).
The Kansas Supreme Court has stated that the word “may” typically indicates a discretionary decision for the trial court. In Plains Transport of Kansas, Inc. v. Baldwin, 217 Kan. 2, 4-5, 535 P.2d 865 (1975), the court interpreted K.S.A. 60-242(a): “The statute uses the word ‘may,’ leaving the matter to the sound discretion of the district court.” There are several other instances of our appellate courts finding that inclusion of the word “may” equates to a discretionary decision for the trial court. See, e.g., Hill v. Kansas Dept. of Labor, 292 Kan. 17, 21, 248 P.3d 1287 (2011) (stating that the word “may” in K.S.A. 2010 Supp. 44-532[d] affords the administrative law judge the discretion to impose or not impose a civil penalty); In re Care & Treatment of Twilleger, 46 Kan. App. 2d 302, 310, 263 P.3d 199 (2011) (noting previous holdings that the word “may” in K.S.A. 2007 Supp. 59-29a08[a] dictates that the district court has discretion over the appointment of an independent medical examiner); Stevenson v. Robinson, 22 Kan. App. 2d 305, 306, 917 P.2d 893 (1996) (stating that the word “may” in K.S.A. 79-3268[f] gives the district court discretion to award attorney fees).
Applying the principle from these decisions to the present case, and seeking to give “ordinary words their ordinary meaning,” we hold that the explicit language of K.S.A. 2010 Supp. 60-3107(e) gives the trial court discretion to extend the PFA order when such an order is within the bounds of judicial discretion. Had the legislature intended to make the standard for extension of a PFA order preponderance of the evidence, it would have stated so in K.S.A. 2010 Supp. 60-3107(e). Instead, it used the word “may,” indicating that the decision is discretionary. K.S.A. 2010 Supp. 60-3017(e).
A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 570, 256 P.3d 801 (2011).
We hold under the above standard that the district court did not abuse its discretion in extending the PFA order for an additional year. We reject Roy’s contention that the district court inappropriately based its decision on the subjective fear that Shannon had of Roy. As noted in Trolinger v. Trolinger, 30 Kan. App. 2d 192, 194, 42 P.3d 157 (2001), rev. denied 273 Kan. 1040 (2002), PFA orders are by their nature subjective judgments, and the district court is in the best position to know when they are warranted.
We insist that the district court was in the best position to know whether an extension was necessary. The district judge that extended the PFA order is the same judge that originally issued the PFA order. In the order extending the PFA order, the district court noted that the divorce case between Roy and Shannon “ha[d] been quite contentious” and that “the continuation of the current PFA for an additional year should serve to help maintain the peace between these parties.”
We have also outlined the factual circumstances shown by the evidence that would lead a reasonable person to adopt the same view as the court. See State v. Gonzalez, 290 Kan. 747, 755, 234 P.3d 1 (2010). Under the evidence presented, we conclude the district court did not abuse its judicial discretion in granting Shannon’s motion for a 1-year extension of the PFA order.
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Pierron, J.:
Kingsley Uwadia appeals the district court’s denial of his motion for new trial. He argues the court erred in finding the deposition statute was not violated and trial counsel was not ineffective. We affirm.
Uwadia was charged with criminal threat against Joel Womochil, Edward Jones, Eugene R. Williams, and Shawn Madsen, stemming from an incident at a Sedgwick County nightclub.
Before trial, the State moved for admission of Womochil’s video deposition at trial on grounds that he was an essential eyewitness. However, he would being leaving for military basic training on May 19, 2010, in Ft. Jackson, South Carolina, and would be unavailable for trial on May 24, 2010. The district court took up the motion before voir dire. Womochil was deposed by agreement between the State and Sarah Green, Uwadia’s first attorney, not by court order. For purposes of K.S.A. 22-3211(8), the court had the parties stipulate that Womochil was in South Carolina for military training. James Crawford, Uwadia’s trial counsel, objected to admission of the deposition on hearsay grounds and under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Specifically, he argued Green’s cross-examination was not meaningful because she asked very few questions, and the deposition was not essential because the State could call other available wit nesses. After reviewing the cross-examination portion of the video, the court found no Crawford violation because Uwadia was present at the deposition and Green’s opportunity to cross-examine Womochil was not limited. The court ruled that the deposition could be used at trial.
A jury trial was held on May 24 and 25, 2010. Before the State played Womochil’s video deposition, Crawford renewed his objection and the district court granted him a continuing objection. The court explained to the juiy that the deposition was taken on April 21, 2009, by another attorney from Crawford’s office, and was being played because Womochil was at basic training. After the deposition was played for the juiy, the court admitted the video and its transcript into evidence, but allowed only the video to be taken into deliberations.
The video deposition reflected that Womochil was working as a bouncer on September 25, 2009, the night of the alleged threat. He saw Uwadia pass an alcoholic beverage to an underage female. As Womochil and another bouncer escorted the pair out of the club, Uwadia said, “You have five seconds to get your hands off me.” Upon reaching the foyer, a group of bouncers formed a half-circle and walked towards the door, forcing Uwadia out. Then Uwadia said, “I’m going to shoot you,” and stayed in the parking lot for 5 to 10 minutes, “rapping” about “him and his boys” shooting and killing the bouncers. Womochil’s boss told another bouncer to call 9-1-1. Womochil took Uwadia’s threat very seriously; it scared him. Green’s cross-examination of Womochil consisted of four main questions: (1) Was the club loud that night?; (2) Was there anyone else in the parking lot besides Uwadia and the bouncers?; (3) What was the name of the girl ejected from tire club?; and (4) How far away was Uwadia when he made the threat?
In addition to playing Womochil’s video deposition, the State called Shawn Madsen. Madsen was working as head of security on the night in question. It was hip-hop night, which always draws the largest crowds, including many gang members. Madsen saw Womochil escort Uwadia out of the club, and heard Uwadia say, “I’m going to slaughter and murder you.” Because he had experienced a prior shooting, Madsen took Uwadia’s threat very seriously and decided to call 9-1-1.
The State also called Jones and Williams. On the night in question, Jones was working as a bouncer and Williams was working as door security. Jones and Williams watched Womochil escort Uwadia out of the club, and heard Uwadia say, from 5 to 10 feet away, “I’ll kill all of you and slaughter everybody in the club.” They both took Uwadia’s threat seriously. Williams verified on cross-examination that Womochil was present when Uwadia made the threat.
Uwadia did not testify. On May 25, 2010, the jury found him guiliy of criminal threat, in violation of K.S.A. 21-3419(a)(l).
Crawford filed a motion for new trial on May 28, 2010, claiming insufficient evidence to support Uwadia’s conviction and the erroneous admission of the video deposition on hearsay and confrontation grounds. Then Uwadia enlisted the services of Carl Maughan, who filed a second motion for new trial on June 8, 2010. In that motion, Maughan made the same arguments Uwadia is making on appeal: (1) K.S.A. 22-3211 was violated when the State failed to apply for an order authorizing Womochil’s deposition, and the district court failed to hold a hearing on the matter; and (2) Uwadia had ineffective assistance of counsel based on Green’s agreement to the deposition, Crawford’s failure to object to the deposition, and their joint failure to investigate.
On December 7 and 8, 2010, the district court held an evidentiary hearing on Uwadia’s second motion for new trial. Green — the public defender appointed to Uwadia’s case — testified first. Before trial, the prosecutor called to tell Green that he needed a deposition because one of his witnesses was going to be unavailable for trial due to deployment; she relied on the prosecutor’s representation rather than asking to see deployment paperwork. Instead of filing the requisite motion, the prosecutor simply asked Green to agree to the deposition. Green discussed the matter with Uwadia over the phone. She told him that if he did not agree to the deposition, tire prosecutor would likely file a motion, which would be heard and granted very quickly. With a lingering hope of a misdemeanor charge, she advised Uwadia to agree to the deposition. But she informed him that he did not have to agree and could “make the State follow the procedure.”
Uwadia never waived his right to be present at a hearing on a motion for the taking of a deposition, and his consent to the deposition was not recorded. Womochil’s deposition was taken at the courthouse on April 21, 2010. The prosecutor, Green, Uwadia, the court reporter, and the cameraperson were present. Green had sufficient time to prepare for Womochil’s cross-examination. She told Uwadia that a judge would have to find Womochil’s deposition admissible for it to be used at trial.
When Green was preparing for trial, Uwadia gave her the names of some rebuttal witnesses — Brandon, Eric, and Adam. Because her investigator contacted the potential witnesses and reported that they would not be helpful, Green did not subpoena them. Green did not recall Uwadia telling her that he was on his cell phone at the time he made the alleged threats. She neither subpoenaed the club record of ejected patrons nor investigated the State’s witnesses, because she did not believe such acts would benefit Uwadia’s defense (“I did not say those things”). Because Green had a scheduling conflict on the final trial date and the State would have objected to another continuance, Crawford took over Uwadia’s case.
Crawford — another public defender who tried Uwadia’s case— testified next. He received the case file from Green 5 days before trial, had enough time to prepare, and had no reservations about trying the case. Before trial, Crawford called Uwadia to ensure he wanted to proceed to trial and also had an hour-long office meeting with him. Crawford knew that Womochil had been deposed because Green had agreed to the prosecutor’s request. After reviewing the video deposition, Crawford thought it might help — not hurt — Uwadia because Womochil did not seem to have been placed in fear. Crawford did not (1) subpoena the club record of ejected patrons, (2) check the backgrounds of State witnesses, or (3) investigate the person Uwadia allegedly called for a ride home, all because he did not think such acts would help Uwadia at trial.
Crawford reviewed the statute governing the admissibility of depositions in criminal cases, and knew a witness had to be una vailable for trial for a deposition to be admitted. Before the trial began, the prosecutor furnished a letter containing Womochil’s basic training date. Despite the fact that the letter was not a formal deployment order, Crawford did not verify that Womochil was out of state on the day of trial.
The prosecutor, David Vinduska, also testified. Womochil told Vinduska that if Uwadia’s trial kept getting pushed back, there was a chance he could be at Army basic training in South Carolina. After Womochil’s recruiter sent Vinduska a document containing Womochil’s processing date, Vinduska arranged for Womochil to be deposed. Vinduska stayed in contact with Womochil until he reported for processing. On the day of trial, he did not talk to Womochil or have independent knowledge of his whereabouts.
The final witness at the evidentiary hearing on Uwadia’s motion for new trial was Uwadia himself. Uwadia had this to say about Womochil’s deposition:
“[A]t the deposition . . . [Green] was looking at the book, and she was like, she just said basically the statute [said] that they had to get a motion .... [T]hey might not be able to use [the deposition], and at worst they would be able to use it at trial. But the chances are not very good because they’re not following the statute.”
When Uwadia tried to prompt Green to ask certain questions, she allegedly said, “[Djon’t worry about it, because they did not follow . . . the statute.” Uwadia did not know about or waive his right to appear on a motion for the taking of a deposition. Green’s investigator called one of Uwadia’s suggested witnesses while the witness was at work and never followed up. Uwadia told Green he would not plead to a misdemeanor because he had not threatened anyone, and he never discussed a plea with her. Uwadia believed “there should never have been a deposition in the first place.” When the judge asked Uwadia what he wanted Green to ask Womochil at the deposition, Uwadia proffered the exact questions Green asked.
After hearing all the evidence, the district court found that Womochil was both an essential witness (because Uwadia was charged with threatening all four bouncers, not just any bouncer) and an unavailable witness (because he was going to be out of state for military training). The court ultimately ruled: “[T]here is no hearing necessary under [K.S.A. 22-3211] when there is no disagreement between counsel as to whether a particular witness, the subject of this deposition statute, is essential and/or unavailable.”
The district court held that Green and Crawford were not ineffective because (1) Green did not violate K.S.A. 22-3211, and, so, she was not required to object to her deposition procedure; and (2) Green discovered that Uwadia’s suggested witnesses would not be helpful and “Crawford made the strategic call not to use those witnesses,” which was “obviously the preferred, more responsible call to make.” Therefore, the court denied Uwadia’s motion for new trial.
Based on a criminal history of I and a severity level 9 person felony, Uwadia’s presumptive sentencing range was probation with an underlying 5-6-7 months’ imprisonment. On December 8,2010, Uwadia was sentenced to 12 months of probation with an underlying 6 months of imprisonment.
Analysis of Ineffective Assistance of Counsel Claim
To decide Uwadia’s ineffective assistance of counsel claim, we must first address his argument that a prosecutor’s motion for deposition and related hearing are mandatory under K.S.A. 22-3211. The State did not brief this issue for some unknown reason.
K.S.A. 22-3211
K.S.A. 22-3211 sets forth four situations in which a witness’ deposition can be taken in a criminal case. Subsection (1) allows a defendant to move for a deposition, and provides that the court may order the deposition if the witness will be unavailable, the witness’ testimony is material, and the deposition is necessary to prevent a failure of justice. Subsection (2) allows a witness to move to be deposed, and provides that the court may order the deposition if it gives notice to the parties. Subsection (3) allows a prosecutor to move for a deposition for the reasons listed in subsection (1), requires the court to hold a hearing and order the defendant to be present, and provides that the court may authorize the dep osition if it determines that the requirements listed in subsection (1) are met. Subsection (4) provides:
“If the crime charged is a felony, the prosecuting attorney may apply to the court for an order authorizing the prosecuting attorney to take the deposition of any essential witness. Upon the filing of such application, the court shall set the matter for hearing and shall order the defendant to be present at such hearing. If, upon hearing, the court determines that the witness is an essential witness, the court shall authorize the prosecuting attorney to take the deposition of the witness in the county where the complaint or indictment has been filed. Upon application, the court may order that a deposition taken pursuant to this subsection be videotaped.” K.S.A. 22-3211(4).
The statute defines “essential witness” as “a prospective witness in the prosecution of a felony who is an eyewitness to the felony or without whose testimony a conviction could not be obtained because the testimony would establish an element of the felony that cannot be proven in any other manner.” (Emphasis added.) K.S.A. 22-3211(10). The statute also provides that if a court orders a deposition, it must also order the defendant to be present at such deposition. K.S.A. 22-3211(7). And finally, the statute permits the deposition to be used at trial if the witness is out of the state and his or her appearance cannot be obtained, unless the offering party procured the witness’ absence. K.S.A. 22-3211(8)(b).
To ensure that the defendant’s right of confrontation is not violated, K.S.A. 22-3211 sets forth strict rules under which depositions may be admitted as evidence at trial. State v. Cathey, 241 Kan. 715, 724-25, 741 P.2d 738 (1987). “Absent procedural irregularities resulting in a violation of a defendant’s constitutional rights, courts have uniformly upheld the admission of videotaped depositions into evidence at criminal trials. [Citations omitted.]” State v. Wooldridge, 237 Kan. 737, 740-41, 703 P.2d 1375 (1985) (upholding conviction because admitted deposition was taken by prosecutor who complied with K.S.A. 22-3211); cf. State v. Willis, 254 Kan. 119, 121, 126-27, 864 P.2d 1198 (1993) (reversing conviction because admitted deposition was taken outside defendant’s presence by prosecutor without court order).
Little caselaw has developed regarding depositions in criminal cases because they are rarely taken. State v. Hernandez, 227 Kan. 322, 327-29, 607 P.2d 452 (1980); see Wooldridge, 237 Kan. at 740 (“The use of videotaped depositions in the courts is of relatively recent origin.”). The purpose of taking a deposition under K.S.A. 22-3211 is to perpetuate testimony. State v. Steward, 219 Kan. 256, 260, 547 P.2d 773 (1976). The right to take a deposition under subsection (1) or (3) is discretionary with the district court. State v. Schlicher, 230 Kan. 482, 485, 639 P.2d 467 (1982) (affirming denial of defendant’s motion to depose because the witness was available); see Steward, 219 Kan. at 260-61 (A defendant is not entitled to take deposition of a prospective witness on the bare assertion that such witness might not be able to appear at trial.); see also State v. Bird, 238 Kan. 160, 170, 708 P.2d 946 (1985) (upholding admission of deposition because prosecutor complied with K.S.A. 22-3211[3]). Conversely, the right to take a deposition of an essential witness under subsection (4) is absolute. 238 Kan. at 170.
While not directly on point, the Hernandez case is instructive. Hernandez was charged with first-degree murder stemming from a shooting at a nightclub. To support his self-defense theory, Hernandez located a club patron who would testify that the victim threatened Hernandez on the night of the shooting. But the witness had been taken into custody to await transfer to Arizona, where he faced federal charges. So, without filing a motion to depose, Hernandez deposed the witness at the county jail. The State was present for cross-examination. Before trial, Hernandez filed a motion for funds to have the “crucial” witness transported from Arizona to Kansas for trial. But the district court denied the motion at trial, and the witness’ deposition was read to the jury. On appeal, Hernandez claimed erroneous denial of his motion for funds, instead of erroneous admission of the deposition. The Kansas Supreme Court affirmed, finding that “[although the deposition was not taken in accordance with K.S.A. 22-3211, it appears from defense counsel’s arguments to the trial court... that it was his intent to perpetuate testimony by the taking of the deposition.” 227 Kan. at 331.
Scope of Review
Interpretation of a statute is a question of law over which an appellate court has unlimited review. The most fundamental rule of statutoiy construction is that the intent of the legislature governs if that intent can be ascertained. State v. Arnett, 290 Kan. 41, 47, 223 P.3d -780 (2010). The appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). As a general rule, criminal statutes must be strictly .construed in favor of the accused. Any reasonable doubt as to the meaning of the statute is decided in favor of the accused, subject to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Jackson, 291 Kan. 34, 40, 238 P.3d 246 (2010).
KS.A. 22-3211(4)
Here, Uwadia does not identify which subsection of K.S.A 22-3211 he thinks was violated. But after reading the State’s motion to admit Womochil’s deposition, it appears the controversial deposition was of the subsection (4) variety — the State labeled Womochil an “essential eyewitness.” The State did not comply completely with subsection (4). It never applied to the district court for an order authorizing Womochil’s deposition. The court did not, therefore, set the matter for hearing, order Uwadia to be present at such hearing, determine that Womochil was an essential witness, and authorize Womochil’s deposition.
The question we must answer is: Can parties bypass K.S.A. 22-3211(4)’s requirements by agreeing to the deposition of an essential witness? For the following four reasons, the answer is yes.
First, our Supreme Court has stated that the provisions of K.S.A. 22-3211 are meant to protect a defendant’s right to confrontation. Here, Uwadia’s right to confrontation was protected through his presence at the deposition, which was required under subsection (7) not (4). Of course, his attorney was also present, having agreed to the taking of the deposition and participated in it without objection.
Second, the statute says a prosecutor in a felony case may — not shall — move to depose an essential witness. This language leaves open the possibility of a deposition by agreement.
Third, the statute says the district court shall authorize the deposition of an eyewitness. Here, the parties’ deposition agreement was in effect a joint stipulation that Womochil was an eyewitness, which left nothing for the court to decide. So interpreting subsection (4) as imposing mandatory deposition motion and hearing requirements would do nothing but hinder judicial economy.
And fourth, the Hernandez court endorsed a deposition taken by defense counsel who failed to move for tire deposition of a material witness. Hernandez supports the position that subsection (4) allows depositions of essential witnesses by agreement rather than court order.
For the above reasons, we affirm the district court’s statutory interpretation — K.S.A. 22-3211(4) does not require a prosecutor to move for a deposition of an essential witness when the parties agree to the deposition.
Ineffective Assistance of Counsel Claim
Uwadia also argues the district court erred in denying his post-trial motion for a new trial because (1) Green failed to force the prosecutor to file a motion to depose Womochil, and Crawford failed to object to the admission of Womochil’s procedurally flawed deposition; and (2) both Green and Crawford failed to investigate witnesses. The State counters that Uwadia has failed to prove either prong of a successful ineffective assistance of counsel claim.
Generally, claims of this type are not appropriate on direct appeal and are raised in postconviction motions after the termination of the direct appeal. The appellate court can consider such a claim on direct appeal, however, when the record is sufficient to consider the claim. See State v. Paredes, 34 Kan. App. 2d 346, 348-49, 118 P.3d 708, rev. denied 280 Kan. 989 (2005). Here, the district court held a posttrial hearing on Uwadia’s motion for a new trial and gave both parties the opportunity to call witnesses and present evidence. Thus, we conclude that it is appropriate to examine Uwadia’s ineffective assistance of counsel argument.
Because the district court held an evidentiary hearing on Uwadia’s motion for a new trial, the appellate court employs the same standard of review as when a district court has held a full evidentiary hearing on a K.S.A. 60-1507 motion. The appellate court reviews tire district court’s factual findings to determine whether they are supported by substantial competent evidence and are sufficient to support the district court’s legal conclusions, and applies de novo review to the district court’s ultimate conclusions of law. Bellamy v. State, 285 Kan. 346, 354-55, 172 P.3d 10 (2007).
For a defendant to show that trial counsel was ineffective, two essential elements must be established: (1) counsel’s performance was constitutionally deficient, and (2) but for counsel’s deficiency, there is a reasonable probability that the movant would have obtained a more favorable outcome. Rowland v. State, 289 Kan. 1076, 1083, 219 P.3d 1212 (2009) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 [1984] [quoting Moncla v. State, 285 Kan. 826, 831-32, 176 P.3d 954 (2008)]). Uwadia has the burden to show by a preponderance of the evidence that Green and Crawford’s representation was deficient and prejudiced him. See State v. Barahona, 35 Kan. App. 2d 605, 611, 132 P.3d 959, rev. denied 282 Kan. 791 (2006).
Trial counsel is responsible for tactical and strategic decisions, like which witnesses will testify at trial. Flynn v. State, 281 Kan. 1154, 1165, 136 P.3d 909 (2006). Under the first prong, the appellate court must strongly presume that counsel’s performance fell within the broad range of reasonable professional assistance. A strategic choice made after a thorough investigation of law and facts relevant to realistic options is virtually unchallengeable, and one made after a less than comprehensive investigation is reasonable exactly to the extent reasonable professional judgment support the limitations on the investigation. Rowland, 289 Kan. at 1083-84. Under the second prong, the defendant must show a probability “sufficient to undermine confidence in the outcome.” Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).
Since we find that a prosecutor need not move for a deposition under K.S.A. 22-3211(4) when the parties agree to the deposition, we cannot conclude that counsel’s performance was deficient for failing to force the prosecutor to file an unnecessary motion, and failing to object to the deposition’s admission for lack of such motion. Even if we find that a prosecutor’s motion for deposition and related hearing are mandatoiy under K.S.A. 22-3211(4), we cannot conclude that but for Womochil’s testimony, the jury would have, with reasonable probability, acquitted Uwadia. Exclusion of Womochil’s deposition would not have rendered the evidence insufficient to support Uwadia’s conviction. Uwadia was charged with criminal threat against Womochil, Jones, Williams, and Madsen. Jones, Williams, and Madsen testified that Uwadia had threatened to kill the bouncers, and Williams testified that Womochil was present when the threat was made. So the jury probably would have convicted Uwadia without having viewed Womochil’s video deposition.
We also cannot conclude that counsel’s performance was deficient for failing to investigate Uwadia’s suggested witnesses. Green did contact the witnesses and discovered they would not help Uwadia’s case, so she decided not to put them on the stand. The district court correctly noted that “Crawford made the strategic call not to use those witnesses.” Considering the evidence and being highly deferential to counsel as required, counsel’s handling of the matter did not fall below an objective standard of reasonableness.
For the above reasons, the district court did not err in denying Uwadia’s motion for new trial based on ineffective assistance of counsel.
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Malone, J.:
Katherine Depew, as successor in interest for Dorothy Barr, now deceased (collectively referred to as Barr), appeals the district court’s summary judgment granting an easement across Barr’s property to an abandoned private cemetery for the purposes of access by employees of the Board of County Commissioners of Greenwood County (County) to fulfill the County’s duties to maintain the cemetery under K.S.A. 17-1305 and for public visitation. Barr claims the district court erred in determining the existence of the access easement and in defining the scope of the easement. She also claims the easement constituted an improper taking of her property without just compensation. We conclude the district court did not err in determining that an access easement exists across Barr’s property and that the easement has not been abandoned by nonuse. However, we conclude the district court erred by granting summary judgment in favor of the County as to the scope of the easement, and we remand for an evidentiaiy hearing to resolve issues as to the physical scope of the easement and the right to public access to the cemetery.
This dispute concerns the various parties’ rights and duties relating to a certain piece of landlocked real property (Reserved Property) and the property that surrounds it (Surrounding Property), located in Greenwood County, Kansas. The Reserved Property and Surrounding Property were originally part of a larger property purchased by John Gage by patent from the United States in 1876. In 1888, John Gage deeded the property to his son, John T. Gage, with the following exception:
“[E]xcept [the] right-of-way belonging and deeded unto St. Louis and San Francisco Railway Co. — also except about 2 acres commencing 25 rods west of the SE corner of S 1/2 of SE 1/4 aforesaid, thence running westerly circling south along the south line of the aforesaid right-of-way 89 rods, thence south 11 rods' — thence east about 15 rods to north bank of Salt Creek, thence following east along the bank of the creek to a point due south of the starting point, thence north to the place of beginning and used for family graveyard and horse [illegible] the railway water tank and in Township 28S of Range 11E.” (Emphasis added.)
The cemetery on the Reserved Property contains 16 visible headstones with as many as 30 people buried therein. The 2-acre Reserved Properly has never been subdivided or subjected to any official survey filed of record. Only a portion of the Reserved Property is actually used for gravesites, and the remainder of the property has been used for farming or pasture over the years. There is no road or recognized path leading to the Reserved Property, and it is inaccessible except by crossing the Surrounding Property. A railroad right-of-way runs adjacent to the Reserved Property, but the record does not reflect to what extent the parties can gain access to the Reserved Property by using the railroad right-of-way. The record also does not reflect the distance from the landlocked Reserved Property to the nearest county road. There have been no recorded conveyances of the Reserved Property since the 1888 deed. In 1908, the Surrounding Property was conveyed by John T. Gage to non-Gage family members. Barr acquired title to the Surrounding Property by deed on December 26, 1973.
In 1996, the County began assessing property taxes against the Reserved Property, which was identified in county records as a “family graveyard.” Property taxes in the amount of $739.42 went unpaid, and the County initiated a tax foreclosure action resulting in a publicly noticed sheriffs auction, with John T. Gage, Mary Gage, and John Gage, addresses unknown, listed as the owners. When Barr learned of the proposed tax sale, she claimed that she went to the county treasurer s office and tendered payment for the full amount due, but the employee in the county treasurer’s office refused to accept the payment. The County later denied Barr’s allegation that she attempted to pay the property taxes. The tax foreclosure sale was held on June 2,2005, at which Stephen McCoy purchased the Reserved Property for $2,300. McCoy later stated that he purchased the Reserved Property for his leisure activity and for hunting. McCoy was aware that the Reserved Property was landlocked but assumed he could gain access by using the now-abandoned railroad right-of-way bounding one edge of the Reserved Property.
After the sheriff s sale, McCoy attempted to negotiate with Barr for an easement across the Surrounding Property to access the Reserved Property, but he was unsuccessful in doing so. On October 27, 2005, McCoy filed suit against Barr, contending that he was entitled to an easement across the Surrounding Property. Barr joined the County and the Greenwood County Clerk (together, County) as parties to the lawsuit and filed a cross-claim against the County. In her cross-claim, Barr argued that the Reserved Property was a cemetery and that therefore its sale to McCoy was void against public policy and should be set aside. The County filed a counterclaim to Barr’s cross-claim, contending that it should be allowed to partition the Reserved Property so that the County would have control over the portion containing the actual cemeteiy and McCoy would own the remainder. Furthermore, the County alleged that an easement would be required over the Surrounding Property to access the cemeteiy for maintenance purposes by the County and to allow public visitation. Barr replied that the Reserved Property could not be partitioned, but that if it could, she had acquired title by reversion or adverse possession to the portion not containing the actual cemetery. She asked that the County’s request for an easement be denied, but if it was granted that she be paid compensation for the taking of her property.
On December 3, 2007, Barr filed a motion for summaiy judgment, asking that McCoy’s petition for an easement to access the Reserved Property be denied and that her cross-claim to set aside the sale of the Reserved Property be granted. In the alternative, she asked that the noncemeteiy portion of the Reserved Property be declared her property and that the County be required to maintain the cemetery. The County and McCoy each opposed Barr’s motion, but neither party filed cross-motions for summaiy judgment seeking additional relief from the court.
On March 3, 2008, the district court held a hearing on Barr’s motion for summaiy judgment and heard arguments of counsel. The district court issued a memorandum decision on September 23, 2008. The district court found that the entirety of the Reserved Property was considered a cemetery for purposes of construing the real property rights involved. The district court further determined that cemetery lands are not subject to laws normally pertaining to real property such as abandonment and adverse possession. The district court then found that the County had failed in its statutory duty under K.S.A. 17-1305 to protect the Reserved Property from loss or alienation and that the tax foreclosure sale of the Reserved Property to McCoy was void and set aside. Likewise, the district court rejected Barr’s claim of ownership over any portion of the Reserved Property by reversion or adverse possession. The district court then directed the County to assume immediate control of the Reserved Property.
Finally, the district court granted an easement or public right-of-way across the Surrounding Property for maintenance of the cemetery and public visitation purposes and enjoined Barr from preventing access by the County or any member of the public who wished to visit the cemetery. Specifically, the district court entered the following legal conclusions as to the easement across the Surrounding Property:
“10. As Greenwood County notes in its brief, cemeteries are historically a place tlie public visits. Whether it is a private burial ground or Resthaven Mortuary and Cemetery in Wichita, Kansas, this Court finds that the public has a vested interest in access to a cemetery in order to pay respects or for historical and genealogical reasons. Greenwood County is directed to take appropriate steps to provide ingress and egress to and from the Gage Cemetery. The Court grants to the County an access right in the nature of a public right of way and/or easement of necessity across defendant Barr’s lands for such purposes.
“11. Defendant Barr is enjoined from preventing access to the cemetery grounds by the County or any member of the public who may wish to visit the cemetery. The means of access must remain open. Defendant Barr may not fence out the public or ‘hold the keys’ so to speak as to someone desiring access to the cemetery.”
Barr filed a motion to alter or amend the district court’s decision, contending that the district court went beyond the scope of relief requested by the parties and beyond statutory authority in granting an easement for the purpose of public visitation. Barr also asserted that such an expansive easement would create a substantial and unwarranted burden on the Surrounding Property and constituted a taking of her property without just compensation. About 2 years later, on October 20, 2010, the district court issued a letter opinion to counsel denying the motion and reaffirming its previous rulings. With respect to the physical scope of the easement granted across the Surrounding Property, the district court’s letter opinion stated: “It would be a fairly simple matter for the County to gravel an appropriate way from the road to the cemetery and for defendant Barr to fence off her property from the road to prevent cattle wandering away or cemetery visitors from trespassing on her lands.” The district court’s letter opinion to counsel concluded by stating: “Gentlemen, let us put this case out of its misery.”
Barr filed a timely notice of appeal from the district court’s judgment. We note from the record that Barr died during the pendency of the motion to alter or amend and was substituted for in the litigation by her daughter and successor in interest, Katherine Depew. For the salce of consistency, we will refer to the defendant as Barr throughout this opinion. On appeal, Barr does not challenge all the district court’s findings and legal conclusions entered with respect to the rights of the parties. For instance, the district court found that the entire 2-acre tract constituted and was to be treated as a cemetery. No party is contesting this finding. Also, the district court found that the cemetery could not be sold for payment of taxes, and no party is challenging this conclusion on appeal. In fact, McCoy did not appeal the district court’s judgment, and the record reflects that he received reimbursement from the County for the purchase price of the Reserved Property as required in the order. Thus, McCoy is not a party to this appeal.
Barr makes three claims on appeal. First, Barr claims that the district court erred in determining that an access easement still exists across the Surrounding Property. Barr asserts that the easement has been extinguished by abandonment. Second, Barr claims that if an access easement still exists across the Surrounding Property, the district court erred in defining the scope of the easement. Third, Barr claims that the district court’s recognition of an access easement for public visitation of the cemetery constituted an improper taking of her property entitling her to compensation.
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 oppos ing 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).
Existence of the Easement
The parties concede that an implied easement by necessity was created when, by the 1888 deed, John Gage severed his property into two parcels — the landlocked Reserved Property (the dominant estate) and the Surrounding Property (the servient estate) — and conveyed the Surrounding Property to his son while retaining ownership of the Reserved Property. See Horner v. Heersche, 202 Kan. 250, 254, 447 P.2d 811 (1968) (implied easement by necessity is created whenever property is completely surrounded by adjoining lands). But Barr contends that the access easement has since been extinguished, a claim that the County denies.
On appeal, Barr advances three theories as to why any access easement has been extinguished: (1) by abandonment, because there is no physical or recorded evidence of the location of any easement and because there is no evidence that any easement has been used by a Gage heir in over a century; (2) by adverse possession; and (3) by lack of necessity, because the Reserved Property can be accessed by tire allegedly abandoned railroad right-of-way. But Barr only incidentally raises tire theory of adverse possession in her brief and has thus abandoned the argument on appeal. See Cooke v. Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008). And with respect to lack of necessity, Barr failed to raise that theory before the district court and thus cannot raise the issue on appeal. See In re Care & Treatment of Miller, 289 Kan. 218, 224-25, 210 P.3d 625 (2009).
Thus, the only question properly before this court with respect to the existence of the access easement is whether the easement has been abandoned. The only facts cited by Barr in support of her theory of abandonment are that there is no record or physical evidence of the location of any access easement and there is no evidence of any Gage heir using an easement to access the Reserved Property within the last centuiy. The County never contested those facts before the district court and does not do so now. Where there is no factual dispute, appellate review of an order regarding summary judgment is de novo. Kuxhausen v. Tillman Partners, 291 Kan. 314, 318, 241 P.3d 75 (2010).
In Kansas, it is well settled that an easement may not be abandoned by mere nonuse; rather, actual relinquishment accompanied by intention to abandon must be shown. See Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 677, 750 P.2d 398 (1988) (quoting Botkin v. Kickapoo, Inc., 211 Kan. 107, 109-110, 505 P.2d 749 [1973]). “Mere nonuse of property, lapse of time without claiming or using property, or the temporary absence of the owner, unaccompanied by other evidence showing intention, generally are not enough to constitute an abandonment.” Botkin, 211 Kan. at 110; see Edgerton v. McMullan, 55 Kan. 90, 92, 39 P. 1021 (1895). Barr provides no authority that the general rule in Kansas that an easement may not be abandoned by mere nonuse does not apply to an implied easement by necessity.
Although the issue of abandonment generally presents a question of fact to be determined by the factfinder, there is simply no evidence in this case, other than nonuse of the easement, that would support any inference that the Gage heirs intended to abandon the easement created by the 1888 deed. In its decision on Barr’s motion for summary judgment, the district court recognized the existence of an access easement without addressing the origins of the easement or addressing Barr’s arguments that any easement had been extinguished, other than to state generally that cemeteries are not subject to ordinary property laws. But the uncontroverted facts establish that an access easement still exists across the Surrounding Property, and the district court’s decision will be upheld even though it relied upon tire wrong ground or assigned erroneous reasons for its decision. See Robbins v. City of Wichita, 285 Kan. 455, 472, 172 P.3d 1187 (2007).
Scope of the Easement
After the district court confirmed the existence of the access easement across the Surrounding Property, the district court went further and addressed the scope of the easement. The district court specifically found that the public has a vested interest in access to a cemetery in order to pay respects or for historical and genealogical reasons. The district court directed the County to “take appropriate steps” to provide ingress and egress to and from the Gage cemetery. The district court also enjoined Barr from preventing access to the cemetery grounds by the County or any member of the public who may wish to visit the cemetery. In the letter ruling on the motion for reconsideration, the district court suggested that it would be a fairly simply matter for the County to gravel an appropriate way from the road to the cemetery and for Barr to fence off her property from the road to prevent cattle from wandering away or cemetery visitors from trespassing on her lands.
On appeal, Barr contends that the issue of a public access easement was not properly before the district court because she did not raise the issue in her motion for summaiy judgment and neither the County nor McCoy filed their own motions for summary judgment nor requested such relief. She also contends that the Reserved Property is a private rather than a public cemetery and that K.S.A. 17-1305 does not vest the County with the authority to open the cemetery to tire public. Finally, she argues that the public access easement creates a substantial and unnecessary burden on the Surrounding Property because any roadway built would bisect her pasture and she would be required at her own expense to erect fencing along the roadway in order to keep animals in and keep the public out.
The County argues that, although it did not file its own motion for summary judgment requesting a public access easement, it had raised the issue in its counterclaim and in its response to Barr’s motion for summaiy judgment and therefore Barr should have been on notice that the issue was before the district court. The County also points out that a district court has authority to summarily dispose of a matter on its own motion where there is no genuine issue of material fact and, giving the benefit of all reasonable inferences that may be drawn from the evidence, judgment must be for one of tire parties as a matter of law. See Phillips v. Carson, 240 Kan. 462, 474, 731 P.2d 820 (1987). The County further contends that although the Reserved Property is a private cemetery, K.S.A. 17-1305 gives the County tire same authority as the original landowner and thus the County may open tire Reserved Property for public visitation.
The scope of an implied easement by necessity is determined by the intent that may be inferred from the actual use of the dominant tenement at the time of the creation of the easement as well as any uses that the facts and circumstances show were in the reasonable contemplation of dre parties at that time. Stroda v. Joice Holdings, 288 Kan. 718, 724-25, 207 P.3d 223 (2009) (relying on Restatement [First] of Property § 484, comment b [1944]). The test for determining the scope of an implied easement by necessity is inherently factual. Where an appellate court reviews a district court’s determination of the scope of an easement based on undisputed facts, review is unlimited. Stroda, 288 Kan. at 720.
Physical Scope of the Easement
Barr’s motion for summary judgment requested that McCoy’s petition for an easement to access the Reserved Property be denied and that her cross-claim to set aside the sale of the Reserved Property be granted. In the alternative, she asked that the non-cemetery portion of the Reserved Property be declared her property and that the County be required to maintain the cemetery. Barr’s motion for summary judgment did not request the district court to determine the physical scope of any easement, and neither the County nor McCoy filed cross-motions for summary judgment requesting such relief. We agree with Barr’s contention on appeal that determination of the physical scope of the access easement was not properly before the district court on summary judgment.
Moreover, Barr’s statement of uncontroverted facts only included facts relevant to the creation and existence of the easement and the sale of tire Reserved Property to pay for the taxes. As to access to the cemetery for maintenance, no evidence was presented to the district court regarding (1) what kind of equipment the County will need to bring to the cemeteiy in order to care for the property, (2) whether the abandoned railroad right-of-way can provide suitable access to the cemetery, (3) what is the distance between the cemetery and tire nearest county road, (4) what is the most direct route between the cemetery and the nearest county road, (5) whether a roadway or a path is necessary to gain access to the cemeteiy and if so how wide, and (6) where should the roadway or path be located, (7) to what extent is the Surrounding Property used for farmland or pasture and to what extent will the Surrounding Property be damaged by the construction of a roadway or path, and (8) which party is responsible for maintenance and costs, including any fencing that may be necessary to protect Barr s property. Furthermore, the district court’s order merely directed the County to “take appropriate steps” to provide ingress and egress to and from the cemeteiy without providing any specific orders or guidance on how this task is to be accomplished.
Determination of the physical scope of the easement is inherently factual. Although determination of the scope of an easement becomes a legal question where the facts are undisputed, here the district court was presented with insufficient evidence to determine the physical scope of the easement on summary judgment. Furthermore, the district court’s ruling was not specific as to what steps must be taken to provide ingress and egress to the cemetery. We conclude the district court erred by granting summary judgment in favor of the County as to the physical scope of the easement, and we remand for an evidentiary hearing and more specific findings and orders by the district court as to the physical scope of the easement.
Public versus Private Access to the Cemetery
In addressing the scope of the easement, the district court specifically found that the public has a vested interest in access to a cemeteiy in order to pay respects or for historical and genealogical reasons. Based on this consideration, the district court enjoined Barr from preventing access to the cemetery grounds by the County or any member of the public who may wish to visit the cemeteiy. Barr contends tire issue of a public access easement was not properly before the district court on summary judgment.
In granting summary judgment, the district court found that the County had failed in its statutory duty under K.S.A. 17-1305 to protect the Reserved Property from loss or alienation. K.S.A. 17-1305 provides in relevant part:
“All private burying grounds not otherwise expressly provided for by will, deed, or in tire actual possession of the owner in life, shall be under the exclusive control of the county clerk of the county in which said burying ground may be situated; and it is hereby made the duty of said clerk to commence a civil suit or suits for any damages that any other person may do or cause to be done to said burying ground, or to die fence, gates or bars enclosing the same, or of any graves or monuments therein.” (Emphasis added.)
As the County points out, K.S.A. 17-1305 was originally enacted in 1870, before the easement in this case was created. The statute was virtually identical to its present form, except that “exclusive control” over private burying grounds was vested in a probate judge rather than in the county clerk. See L. 1976, ch. 145, sec. 41; L. 1977, ch. 109, sec. 12. Thus, the County contends that the parties should have been on notice that the Reserved Property could come under the “exclusive control” of some governmental entity and could be opened to the public by that governmental entity. Barr claims that “exclusive control” as used in the statute only places the County in a caretaker capacity to prevent damage or spoliation to the cemetery but does not allow it to exercise ownership rights such as opening it to the general public.
The law contemplates two classes of cemeteries, public and private. The former is used by the general community, the neighborhoods, or the churches, while the latter is used only by a family or a small portion of the community. See City of Wichita v. Schwertner, 130 Kan. 397, 400, 286 P. 266 (1930). The reservation in the 1888 deed states that the Reserved Property was used as a “family graveyard,” and there is no evidence in the record that John Gage dedicated the Reserved Property for use by the general community. Furthermore, tire evidence before the district court on summary judgment established that no Gage heir had sought permission to visit the cemetery within the last century. Thus, the cemetery created by the 1888 deed is more accurately categorized as a private cemetery rather than a public cemetery.
The parties agree that maintenance and control of the abandoned Gage cemetery is governed by K.S.A. 17-1305, which explicitly pertains to “private burying grounds,” But the statute does not vest the County with rights “as great as the original landowner,” as the County suggests. The County does not gain actual title to the property and could not alter the character of the property so that it is used for anything other than a cemetery. Nonetheless, there is nothing in K.S.A. 17-1305 that would prohibit the County from allowing the general public to visit a private cemetery under the County’s control, as long as the cemetery retains its character as such. And Kansas courts appear to have recognized that there is a public aspect to cemeteries, whether public or private:
“In Cemetery Ass’n v. Meninger, 14 Kan. 312, 317, it was said:
“ ‘A cemetery is as public a place as a court-house, or a market. . . . We may keep away from the court-house, and avoid the market, but the place of the dead none may shun.’
“ . . . Several sections of our statutes related to cemeteries. [Citations omitted.] These disclose the public aspect of cemeteries, and something of the vital interest the living have in the places of burial of their relatives and friends.” Schwertner, 130 Kan. at 400.
An implied easement for access to a private cemetery should be narrow in scope, and the burden on the landowner must be taken into account in granting the easement. Some guidance in defining the scope of an implied easement to a private cemetery is provided by Hines v. State, 126 Tenn. 1, 149 S.W. 1058 (1911). In Hines, a landowner set aside a portion of land in one of the cultivated fields on his farm as a family burial ground. He later conveyed the portion of the farm surrounding the cemetery to his children, and it was later conveyed to nonrelatives. None of the conveyances explicitly reserved the cemetery, but the Hines court found that such reservation was implied. 126 Tenn. at 4-5. The Hines court further held that the descendants of those buried in the cemetery had rights of burial and rights of access to the cemetery, but the court specified that the rights must be exercised “in a reasonable manner and at reasonable times, so as not to unnecessarily injure the owner of the farm in its cultivation and use.” 126 Tenn. at 4.
Here, the district court enjoined Barr from preventing access by the County or any member of the public who wished to visit the cemetery. We conclude there was insufficient evidence for the district court to make this determination on summary judgment. As indicated earlier, Barr’s statement of uncontroverted facts only included facts relevant to the creation and existence of the easement and the sale of the Reserved Property to pay for the taxes. The district court was presented with insufficient evidence relevant to the issue of public versus private access to the cemetery. Although there is some authority supporting the district court’s finding that cemeteries are historically a place for public visitation, here the district court failed to take into account the burden on the Surrounding Property by making the cemetery open to the public. The district court’s order also drew no distinction between permitting visitation to the cemetery by only Gage-family heirs or by members of the public at large. We conclude the case must be remanded for an evidentiary hearing by the district court to properly determine to what extent, if any, the cemetery grounds must be open to members of the general public.
Finally, Barr claims that the district court’s recognition of an access easement for public visitation of the cemetery constituted an improper taking of her property entitling her to compensation. Although Barr raised this issue in her reply to the counterclaim, she did not request this relief in her motion for summary judgment. Furthermore, the district court did not address this issue in its ruling. Because we are remanding this case for the district court to properly determine the scope of the access easement, we deem Barr’s final issue to be premature and not ripe for appeal.
In summary, we conclude the district court did not err in determining that an access easement exists across Barr’s property and that the easement has not been abandoned by nonuse. However, we conclude the district court erred by granting summary judgment in favor of the County as to the scope of the easement, and we remand for an evidentiary hearing to resolve issues as to the physical scope of the easement, and the right to public access to the cemetery. In determining the proper scope of the easement, the district court should consider the intent that may be inferred from the actual use of the dominant tenement at the time of the creation of the easement as well as any uses that the facts and circumstances show were in reasonable contemplation of the parties at that time. See Stroda, 288 Kan. at 724-25.
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Leben, J.:
Conrad Braun appeals his blackmail conviction, claiming that the evidence was insufficient to convict him of blackmailing his ex-wife’s husband. At the time Braun was charged, blackmail was defined by statute as “compelling another to act against such person’s will.” Braun notes that the alleged victim, Tucker Kirk, didn’t actually take any action that Braun asked Kirk to take — neither refraining from contact with Braun’s children nor signing a contract Braun had prepared — in the communications that led to the blackmail charge.
Braun’s point is well taken. The statute defined blackmail as compelling another to act, not attempting to do so. Since Kirk didn’t act in response to Braun’s communication, the State did not present sufficient evidence of blackmail, and Braun’s conviction must be reversed.
The issue before us is primarily one of statutory interpretation, over which we exercise unlimited review. Thus, we give no specific deference to the district court’s interpretation of the statute. State v. Finch, 291 Kan. 665, Syl. ¶ 2, 244 P.3d 673 (2011). Our goal is to determine the legislature’s intent through the statute’s language, which is generally done by giving ordinary words their ordinary meaning. Finch, 291 Kan. 665, Syl. ¶ 2.
A special rule, the rule of lenity, guides us when determining the meaning of an ambiguous criminal statute. When there is a reasonable doubt about the statute’s meaning, we apply the rule of lenity and give the statute a narrow construction. State v. Chavez, 292 Kan. 464, 468, 254 P.3d 539 (2011); State v. Reese, 42 Kan. App. 2d 388, 390, 212 P.3d 260 (2009).
Two important policies are served by the rule of lenity. First, people should have fair notice of conduct that is criminal. Reese, 42 Kan. App. 2d at 390. Second, narrow interpretation when there is some reasonable doubt about a criminal statute’s meaning best respects the legislature’s role in defining what constitutes a crime. Kansas has no common-law crimes, K.S.A. 21-3102(1), so something is a crime only if the legislature says so by statute. If the courts broadly interpreted ambiguous criminal statutes, we might inadvertently overstep our role and make something criminal even though the legislature had not intended that result. See State v. Knight, 44 Kan. App. 2d 666, 681, 241 P.3d 120 (2010), rev. denied 292 Kan. 967 (2011).
So with these rules in mind, let’s look at the Kansas blackmail statute as it existed when Braun is alleged to have committed this crime: K.S.A. 21-3428. We have added some bracketed numbers to show the statute’s structure. K.S.A. 21-3428 provides: “Blackmail is [1] gaining or attempting to gain anything of value or [2] compelling another to act against such person’s will, by threatening to communicate accusations or statements about any person that would subject such person or any other person to public ridicule, contempt or degradation.” (Emphasis added.)
The statute’s structure makes it a requirement in all cases that the perpetrator threaten to communicate something about another person that would publicly harm the person. In addition, the perpetrator must also either “gain[] or attempt[] to gain anything of value” or “compel[] another to act against such person’s will.” The State did not claim Braun sought to gain anything of value in this case, so the legal question before us comes down to whether Braun “compel[led] another to act against such person’s will.” The State agrees that there was no evidence that the alleged victim took any action that Braun sought to compel him to take.
The State does cite some definitions that suggest “compel” can mean the exertion of strong force without explicit reference to a necessary reaction. The third definition provided by the American Heritage Dictionary is “[t]o exert a strong irresistible force on; sway.” American Heritage Dictionary 376 (4th ed. 2006). The State also cites a definition from an earlier edition of Black’s Law Dictionary, which defined compel as “[t]o urge forcefully; under extreme pressure.” Black’s Law Dictionary 282 (6th ed. 1990). But the Black’s entry cited by the State also noted that “the hallmark of compulsion is the presence of some operative force producing an involuntary response.” And the first definition in the Oxford American Dictionary is “to use force or influence to cause (a person) to do something, to allow no choice of action.” Oxford American Dictionary 128 (1980).
We do not find this a case that can — or should — be determined through a dictionary debate. Instead, our conclusion is based on two key points. First, the way the legislature constructed the statute strongly suggests that the crime victim must take some action in response to the blackmailer’s communication. Second, in looking at the statute from dre State’s perspective, there is at most an ambiguity about whether the victim must act, making this a proper situation to invoke the rule of lenity.
Let’s return, then, to the statute’s structure. The crime requires one of two things: (1) gaining or attempting to gain anything of value or (2) compelling another to act against such person’s will. The legislature specifically provided that either actually gaining something.of value or merely attempting to do so would qualify, but die legislature did not include “attempting to compel” language with respect to the requirement that someone act against his or her will. In addition, fhe triggering phrase is compelling another to act against his or her will. This too emphasizes that action is a part of this element of die crime of blackmail.
We apply the rule of lenity when there is reasonable doubt about statutory meaning, and although the State can cite some definitions to support its case, usage of the word “compel” usually sends a stronger message than the State urges here. Lexicographer Bryan Gamer compares the standard usage of the words compel and impel, noting that compel “is the stronger word, connoting force or coercion, with little or no volition on the part of the [person] compelled.” Gamers Modern American Usage 172 (3d ed. 2009). When we combine the normal usage of compel with the structure of this statute (“compelling another to act against such person’s will”), there is at least an ambiguity about whether the victim must be compelled to take action, squarely making the rule of lenity applicable.
We note that the legislature recently amended the blackmail statute to prohibit “compelling or attempting to compel another to act against such person’s will.” See K.S.A. 2011 Supp. 21-5428 (effective July 1, 2011). That amendment was part of an overall recodification of the Kansas Criminal Code. We do not suggest that changes made by the 2010 legislature provide specific guidance in how to interpret a statute passed many years earlier. But tire change is perhaps noteworthy as an example of how easily the legislature could have indicated its agreement with the interpretation urged by the State in Braun’s case.
In 2003, when the State alleges Braun committed his crime, the statute required that the actor “compel[] another to act against such person’s will.” Because Kirk took no action, Braun did not commit the crime of blackmail as it was then defined by law. Braun asks that his conviction be reversed because the evidence wasn’t sufficient to convict him of blackmail. Even when we view the evidence in the light most favorable to the State, as we are required to do when considering whether the evidence was sufficient to convict, there was no evidence that the alleged victim took any action and thus there was insufficient evidence to convict Braun for blackmail. See State v. Everest, 45 Kan. App. 2d 923, 929-30, 256 P.3d 890 (2011) (holding that conviction must be reversed when evidence considered in fight most favorable to State does not prove the crime), rev. denied 293 Kan. 1109 (2012).
The State suggested in its brief that we should treat the error here as a jury-instruction error and send the case back for retrial in which a correct definition of blackmail could be given to the jury. But the State chose to prosecute Braun for blackmail, not for attempted blackmail, and the State did not present evidence of blackmail to the juiy. The State is not entitled to try Braun a second time on a new theory, i.e., that he only committed an attempted blackmail.
The judgment of the district court is reversed. | [
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